Terms and conditions
This English version is a convenience translation. In the event of any discrepancy, the German version at AGB prevails.
Company: Denovo GmbH
- Managing directors
- Christof Stromberger, Mattias Rauter
- Company register number
- 418763d
- VAT ID
- ATU68868601
- Register court
- Graz, Austria
- Registered office
- Waagner-Biro-Straße 124 · 8020 Graz · Austria
Email: office@denovo.at
Disclosure under para. 1 of the Austrian E-Commerce Act
- Register court
- Graz, Austria
- Competent chamber
- Wirtschaftskammer Steiermark (Styrian Economic Chamber)
- Trade
- Services in automatic data processing and information technology (§ 5 para. 2 GewO 1994)
§1 Scope
1.1.These general terms and conditions of Denovo GmbH (hereinafter referred to as Denovo) apply to all legal transactions, i.e. to all services that Denovo provides to the contractual partner.
1.2.They also apply to all future business and supplementary agreements, even if no express reference is made to them.
1.3.General terms and conditions of the contractual partner expressly do not become part of the contract, even if Denovo does not expressly object to them.
1.4.The version of these terms in force at the time the contract is concluded is the decisive one in each case.
1.5.Amendments to these terms and conditions require the express written confirmation of Denovo to be effective and apply only to the individual transaction concerned.
1.6.Should individual provisions of the contract or of these terms be invalid, the validity of the remaining provisions shall not be affected. The invalid provision is to be replaced by a valid one that comes as close as possible to the intended meaning and economic purpose.
§2 Conditions for the provision of services
2.1.The necessary preparations and the services required for them are carried out at the contractual partner's expense and risk.
2.2.Partial performance is possible in accordance with the specific offer.
2.3.Denovo endeavours to meet the agreed deadlines for the performance of services as precisely as possible. Where unforeseeable circumstances, or circumstances beyond the control of the parties, arise — for example all cases of force majeure — that prevent the agreed delivery or performance deadline from being met, that deadline shall in any event be extended by the duration of those circumstances. Such circumstances also justify an extension of the deadline if they arise at a subcontractor. Denovo will inform the contractual partner of such circumstances without delay and will do everything reasonable to minimise their effects.
§3 Cost estimate
3.1.Cost estimates are generally free of charge.
3.2.The cost estimate is prepared to the best of our professional knowledge and provides information on the expected project volume and its cost. The actual costs may deviate from the amount stated in the cost estimate unless a fixed-price agreement has expressly been made.
§4 Offer
4.1.Unless otherwise agreed, offers are generally free of charge and are prepared on the basis of a detailed or outline specification.
4.2.Our offers are without obligation.
4.3.The contractual partner's orders constitute the actual offer in the legal sense. The contract comes into existence only upon written order confirmation sent by Denovo. Denovo is entitled to accept orders in part only, or to reject them without giving reasons.
4.4.Denovo reserves the right to request original documents and written communication from the contractual partner, in particular by post, in order to ensure performance of the contract.
§5 Fees and prices
5.1.Unless otherwise stated, prices do not include value added tax.
5.2.In the case of an order that deviates from the overall offer, Denovo reserves the right to adjust prices accordingly.
5.3.As stated above, prices are based on the costs at the time of the initial quotation. Should costs increase up to the time of performance, or during the course of the project, due to changed requirements or conditions, Denovo is entitled to adjust prices accordingly. The contractual partner will, however, be informed of this in advance.
5.4.Assessment and the preparation of offers are invoiced to the contractual partner according to actual effort.
5.5.Travel time is generally charged as working time. Costs for accommodation, meals and other travel expenses are shown separately and are not part of the cost of travel time.
5.6.Where, for offered services in the field of software development, the delivery of source code (source code, libraries or similar) is requested or required by the contractual partner, a surcharge of 100% is applied to the net cost of any service. This applies in particular also in the event that the delivery of the source code and/or the surcharge referred to is not expressly stated in the offer.
§6 Project management
6.1.All projects are handled by Denovo using agile methods.
6.2.In agile project management, the contractual partner is intensively involved in the planning and quality assurance phase. Agile project management according to Denovo's specifications is deemed to be a subject matter of every collaboration, unless otherwise agreed in writing.
6.3.The project is worked on iteratively, in two-week cycles.
§7 Project duration
7.1.The project begins on the date the offer is fully signed by both contractual partners.
7.2.Additional services or changes to an existing order always require the written form and a separate order confirmation from Denovo. Where changes extend the project duration, the client implicitly agrees to that extension.
7.3.The contractual partner agrees to accept an overrun of the mutually planned end date of up to 25% of the project duration without incurring additional costs. This will be communicated to the contractual partner promptly, as soon as and to the extent that it becomes apparent.
7.4.Denovo shall in principle be held harmless in this respect.
§8 Project completion
8.1.A project is deemed completed once Denovo has carried out and delivered, free of defects, all activities defined in writing with the contractual partner for the fulfilment of the order.
8.2.Verification of defect-free delivery is ensured by the contractual partner by means of a user acceptance test, UAT for short. Denovo grants the contractual partner a period of five working days for the UAT after each partial delivery, after the completion of an iteration, and after the completion of all specified activities for the fulfilment of the order.
8.3.The UAT is carried out by the contractual partner directly after each delivery.
8.4.After the UAT period has expired, the contractual partner has a further five working days to send Denovo a list of defects. The defect list requires the written form and must be sent to Denovo signed, by post or email. A signature binding on the contractual partner's company is required.
8.5.If no signed defect list has reached Denovo within 10 working days of delivery, the delivery or the order is deemed to have been fulfilled and accepted.
8.6.The contractual partner has the option of accepting the order before the above period expires. Early acceptance of the order does, however, likewise require the written form.
8.7.The client is not entitled to refuse acceptance of the software on account of immaterial defects, or to withhold payment on account of immaterial defects.
§9 Content and optimisation
9.1.With regard to copyright, the contractual partner warrants that all text elements, graphics, photographs, designs, copyrighted works or other artwork made available are the property of the contractual partner, or that the contractual partner is permitted to use them.
9.2.With regard to browser optimisation of web content, the contractual partner agrees that such content will expressly be optimised only for the following desktop browsers: Internet Explorer in the version current at the time the contract is signed; Mozilla Firefox in the version current at the time the contract is signed; Safari in the version current at the time the contract is signed; Google Chrome in the version current at the time the contract is signed. Additional browser or operating system optimisation requires a separate order and remuneration.
9.3.With regard to mobile apps, the contractual partner agrees that, unless otherwise agreed, these will be developed and optimised for the most recent version of the operating system versions publicly available at the time the contract is concluded.
9.4.The contractual partner acknowledges that supporting other browsers, or browsers with a lower version number than those listed in 9.2, is generally possible only with considerable additional effort. This includes in particular browsers for mobile devices such as iPhone and iPad, as well as smartphones and tablets. The additional costs arising from optimisation for these devices are not implicitly part of our offers.
9.5.Required resources that have not been ordered are provided by the contractual partner or ordered separately. This includes, but is not limited to: access credentials for existing hosting, databases or web services; localised texts and descriptions as well as localised graphics or logos.
9.6.For the development of Android applications, three common devices are used for quality assurance. These are defined at the start of the project. Optionally, the client may expressly define test devices, provided they are made available by the client at the start of the project.
§10 Payment terms
10.1.Unless otherwise agreed, payments are due on the date of invoicing, without any deduction, in the agreed currency.
10.2.For orders comprising several units, Denovo is entitled to issue partial invoices, to which the payment terms laid down for the overall order likewise apply.
10.3.A payment is deemed to have been made on the day on which Denovo can dispose of it.
10.4.The contractual partner is not entitled to withhold or offset payments on account of warranty claims or other counterclaims.
10.5.For contractual partners outside Austria, payment is generally made in advance unless otherwise agreed in writing.
10.6.If the contractual partner is in default with an agreed payment or other performance arising from this or other transactions, Denovo may, without prejudice to its other rights, (a) postpone the performance of its own obligation until that payment or other performance is effected and claim a reasonable extension of the performance period, (b) call in all outstanding receivables from this or other transactions and charge default interest on these amounts at 5% above the base rate from the date they fall due, unless the contractor demonstrates higher costs.
10.7.In any case, Denovo is entitled to invoice pre-litigation costs, in particular reminder fees and legal fees.
10.8.If the payment date is exceeded, fees are charged in addition to default interest:
- (a) For the payment reminder "M1", a reminder fee of € 15.00.
- (b) For the further reminder level "M2", € 25.00.
- (c) For the final reminder level "M3", € 45.00.
10.9.Before the project begins, services amounting to up to 50% of the net project sum are invoiced as a down payment. The actual amount of the down payment is specified separately in the order.
10.10.The start of the project is the day on which the contractor confirms to the client that this payment is available. This confirmation is given in writing without exception.
10.11.It is agreed that a partial invoice may be issued every two weeks. The scope of that partial invoice covers at least all those services delivered in the preceding two weeks.
10.12.Late payments extend the planned project lead time by at least the duration of the delay.
10.13.In the event of cancellation, project abandonment or an early end to the project for any reason, the client shall reimburse the contractor for the following costs:
- (a) Project costs already incurred, including third-party costs, as well as services rendered but not yet invoiced: costs according to the project report and the contractor's time records
- (b) A cancellation/abandonment fee: 20% of the not yet invoiced order value of the overall project
§11 Limited warranty
11.1.Irrespective of fault, Denovo is entitled and obliged to remedy inaccuracies and defects in its services that come to light. Denovo will notify the contractual partner of this without delay.
11.2.This claim of the contractual partner expires six months after the respective service has been rendered. Where the contractual partner is a consumer within the meaning of the Austrian Consumer Protection Act, the above period expires within two years.
11.3.This limited warranty does not apply to software and services provided free of charge. This includes updates, preview or test versions, websites and online services, or software or services that have been modified by the contractual partner or by third parties; Denovo excludes any warranty for these entirely.
11.4.To assert a warranty claim for products, the contractual partner must return the software during the limited warranty period, presenting proof of purchase, to the dealer from whom the software was obtained.
11.5.To assert a warranty claim for services, or for functionality delivered through services in the sense of agile software development, the contractual partner must demonstrate defects during the limited warranty period as follows:
- (a) The conditions for the test environment noted in the offer, as well as the operating system and the hardware at the time of delivery, apply as the basis.
- (b) The technically most efficient or simplest route to fulfilling a requirement is always assumed. There are therefore expressly no implicitly included functions or acceptance criteria.
- (c) Defects can expressly be asserted only in relation to specifications recorded in writing and their acceptance criteria.
§12 Liability and damages
12.1.Denovo is liable to the contractual partner for damages – with the exception of personal injury – only in the case of gross fault (intent or gross negligence). This applies accordingly to damage attributable to third parties engaged by Denovo.
12.2.Claims for damages by the contractual partner may be asserted in court only within six months of becoming aware of the damage and the party causing it, but at the latest within three years of the event giving rise to the claim.
12.3.In any event, the contractual partner must prove that the damage is attributable to fault on the part of Denovo.
12.4.Where Denovo provides the service with the assistance of third parties and warranty and/or liability claims against those third parties arise in this connection, Denovo assigns those claims to the contractual partner. In this case the contractual partner shall have recourse primarily to those third parties and shall indemnify Denovo against corresponding claims.
§13 Industrial property rights and copyright
13.1.The copyright in the works created by Denovo, its employees and commissioned third parties (in particular offers, cost estimates, reports, analyses, expert opinions, organisational plans, programs, service descriptions, drafts, calculations, drawings, data media, presentations etc.) remains with Denovo unless otherwise agreed in writing. During and after the end of the contractual relationship, the contractual partner may use them exclusively for the purposes covered by the contract.
13.2.Accordingly, the contractual partner is not entitled to reproduce and/or distribute the work (or works) without the express consent of Denovo. Under no circumstances does unauthorised reproduction or distribution of the work give rise to liability on the part of Denovo towards third parties — in particular as to the accuracy of the work.
13.3.All documents referred to above may be reclaimed by Denovo at any time and must in any event be returned to it immediately and without request if the contract does not come about.
13.4.A breach of these provisions by the contractual partner entitles Denovo to terminate the contractual relationship immediately and prematurely and to assert other statutory claims, in particular for injunctive relief and/or damages.
§14 Confidentiality and data protection
14.1.The contractual partner undertakes to keep the knowledge obtained from the business relationship confidential vis-à-vis third parties.
14.2.Denovo undertakes to observe absolute secrecy regarding all business matters that come to its knowledge, in particular trade and business secrets, as well as any information it receives about the nature, scale of operations and practical activities of the contractual partner.
14.3.Denovo further undertakes to maintain secrecy vis-à-vis third parties regarding the entire content of the work, as well as all information and circumstances that have come to its knowledge in connection with the creation of the work, in particular also regarding the data of the contractual partner's clients.
14.4.Denovo is released from the duty of confidentiality vis-à-vis any assistants and representatives it engages. It must, however, impose the duty of confidentiality on them in full and is liable for their breach of the confidentiality obligation as for a breach of its own.
14.5.The duty of confidentiality extends without limit beyond the end of this contractual relationship.
14.6.Denovo is entitled to process personal data entrusted to it within the scope of the purpose of the contractual relationship. The contractual partner warrants to Denovo that all necessary measures for this have been taken, in particular those within the meaning of data protection law, such as declarations of consent from the data subjects.
14.7.The contractual partner permits Denovo to depict the completed project as part of Denovo's portfolio, to link to it, or to use extracts from it free of charge for the purpose of Denovo's own promotion — including after the end of the contractual period. The contractual partner may object to this use in writing where legitimate interests conflict with it.
14.8.Denovo is entitled to place its name, logo or another customary business identifier, with a link to Denovo's website, discreetly and in coordination with the contractual partner, on content created for the contractual partner.
§15 Change of address
15.1.The contractual partner is obliged to notify Denovo without delay of any changes to its contact address for as long as the legal transaction forming the subject of the contract has not been fully performed by both parties.
15.2.If such notification is omitted, declarations are deemed to have been received even if they were sent to the address last notified.
§16 Electronic invoicing
16.1.Denovo is entitled to send invoices to the contractual partner in electronic form as well, and the contractual partner expressly agrees to this method of transmission.
§17 Choice of law
17.1.This contract is governed exclusively by Austrian substantive law. The applicability of the UN Convention on Contracts for the International Sale of Goods is excluded.
§18 Place of jurisdiction
18.1.The Austrian court having local (A-8020 Graz) and subject-matter jurisdiction for Denovo is agreed as the place of jurisdiction for all disputes arising directly or indirectly from the contract. Denovo is, however, also entitled to bring proceedings before another court having jurisdiction over the contractual partner.
18.2.For all actions brought against a consumer domiciled, habitually resident or employed in Austria in respect of disputes arising from this contract, jurisdiction lies with one of those courts in whose district the consumer is domiciled, habitually resident or employed. For consumers who are not domiciled in Austria at the time the contract is concluded, the statutory places of jurisdiction apply.
§19 Final provisions
19.1.The contracting parties confirm that all information in the contract has been provided conscientiously and truthfully, and undertake to notify each other of any changes without delay.
19.2.Amendments to the contract and to the general terms and conditions require the written form; the same applies to any waiver of this formal requirement. There are no verbal side agreements.