Terms and conditions of service

skillbest GmbH

Last update: 25.10.2019

1. Scope

1.1. These terms and conditions apply to all legal transactions between the client and Skillbest GmbH, hereinafter referred to as the contractor, for the services and activities listed under point 3, as well as for all other contractual relationships between the client and the contractor.

2. Scope and Validity

2.1. All orders and agreements are only legally binding if they are signed by the contractor in due written form and in accordance with the company name and are only binding to the extent specified in the order confirmation. Orders via corresponding e-mail messages are also valid and binding. Terms and conditions of the client are hereby excluded for the legal transaction in question and the entire business relationship. Offers are generally non-binding.

3. Performance and checking

3.1. The subject of an order can be:

  • Advice in the areas of e-learning, communication measures and changes in the organizational and marketing processes
  • Creation/implementation/introduction of e-learning concepts in companies
  • Creation of concepts for change management
  • Creation of advertising and marketing concepts
  • Development of organizational concepts
  • Preparation of virtual learning worlds including creation of learning platforms
  • Audio-visual information transfer
  • Creation of individual programs
  • Acquisition of usage rights for software products
  • Acquisition of work use permits
  • Participation in commissioning (conversion support)
  • Phone-in consultancy
  • Software maintenance
  • Creation of program carriers
  • other services

3.2. The development of individual concepts, programs and e-learning is carried out according to the type and scope of the binding information, documents and tools provided by the client. This also includes practice-oriented test data and test options to a sufficient extent, which the client makes available in a timely manner, during normal working hours and at his own expense. If the customer is already working on the system made available for the test in live operation, the responsibility for backing up the real data lies with the customer.

3.3. The client confirms that the information and content provided for the creation of the service (e.g. image material, learning documents, etc.) are in the client’s possession. The customer must check the content provided by him for legal admissibility, in particular with regard to competition, trademark, copyright and administrative law. In the event of slight negligence or after fulfilling any obligation to warn the customer, the contractor is not liable for the legal admissibility of content if this was specified by the customer.

3.4. The basis for the creation of the work is the written description of services (conception document), which the contractor draws up against a cost calculation based on the documents and information made available to him or which the client makes available. The calculation for the fee for the project implementation is based on the service description. All previously made calculations about the scope of the project and the costs represent non-binding cost estimates and lose their validity and creation of concepts for change processes a recalculation of the contractor’s effort required for the production of the work. The description of services is to be checked by the customer for correctness and completeness and provided with his approval note and is then deemed to have been commissioned with the signature by the contractor.

3.5. As an alternative to 3.4. the client can take the option of agile project implementation in every phase of an order. Agile project implementation means mixing the conception phase with the implementation phase using a project plan. The project is divided into contingents, and these contingents are designed and implemented one after the other, sometimes in parallel. The services of the contractor are charged according to the actual effort according to the daily service rates specified in the order. The option of agile project implementation has the advantage that subsequent change requests from the client are only charged according to the actual additional effort and do not lead to an additional order being placed for the implementation of change requests after possibly higher service daily rates.

3.6. If, during the implementation phase, the contracting parties have a different opinion about the order, the content or the scope of the order, the contractor is entitled to put the project on hold until the contracting parties have reached an agreement. Any completion date that may have been set becomes invalid and a new completion date must be agreed between the contracting parties.

3.7. An individually created work requires acceptance by the customer no later than two weeks after delivery. This is confirmed in a log by the client. (Check for correctness and completeness based on the service description accepted by the contractor using the test data provided under point 3.2.). If the customer allows the period of two weeks to elapse without acceptance of the work, the delivered work is deemed to have been accepted on the end date of the specified period. If the work is used in real operation by the client, the work is deemed to have been accepted in any case. Any defects that occur, i.e. deviations from the concept document agreed in writing, are sufficiently documented by the customer and reported to the contractor in the form of the reproducibility of the error occurrence. If there are significant defects reported in writing, i.e. that real operation cannot be started or continued, a new acceptance is required after the defect has been rectified. The client is not entitled to refuse acceptance of a work due to minor defects. Insignificant defects are those that have no effect on the functionality and proper use of the work.

3.8. If it turns out in the course of the work that the execution of the order according to the service description is actually or legally impossible, the contractor is obliged to notify the client immediately. If the client does not change the service description to that effect or creates the conditions for execution to be possible, the contractor can refuse execution. If the impossibility of execution is the result of an omission on the part of the customer or a subsequent change in the service description by the customer, the contractor is entitled to withdraw from the order. The costs and expenses incurred for the work of the contractor up to that point, as well as any dismantling costs, are to be reimbursed by the client.

3.9. Program carriers, documentation and service descriptions are sent at the expense and risk of the client. Any additional training and explanations requested by the client will be invoiced separately. Insurance is only taken out at the request of the customer.

3.10. The source code, its documentation and photo files are not included in the contractual scope of services.

4. Prices, Taxes and Fees

4.1. All prices are in euros without sales tax. They only apply to this order. The prices quoted are ex the contractor’s place of business or office. The costs of storage media and any contract fees will be invoiced separately.

4.2. The list prices valid on the day of delivery apply to works. For all other services (organizational advice, programming, training, conversion support, telephone advice, etc.), the workload will be charged at the rates applicable on the day the service is rendered. Deviations from a time expenditure on which the contract price is based, for which the contractor is not responsible, will be charged according to the actual occurrence.

4.3. The costs for travel, daily and overnight allowances will be invoiced to the customer separately according to the applicable rates. Travel times count as working time.

5. Delivery date

5.1. A completion date can be contractually agreed between the contractor and the client. In this case, the contractor endeavours to meet the agreed deadlines for fulfilment (completion) as precisely as possible.

5.2. The desired performance deadlines can only be met if the customer has completed all necessary work and documents by the deadlines specified by the contractor, in particular the service description accepted by him according to point 3.2. provides and fulfils its obligation to cooperate to the required extent. Delays in delivery and cost increases caused by incorrect, incomplete or subsequently changed details and information or documents provided are not the contractor’s responsibility and cannot lead to the contractor’s default. The customer bears the resulting additional costs.

5.3. In the case of orders that include several units or programs, the contractor is entitled to make partial deliveries or issue partial invoices.

6. Payment

6.1. The invoices submitted by the contractor including sales tax are payable promptly upon receipt of the invoice without deduction and free of charges, unless otherwise agreed in writing. The terms of payment specified for the entire order apply to partial invoices.

6.2. In the case of orders that include several units (e.g. programs and/or training courses, implementation in partial steps), the contractor is entitled to issue an invoice after delivery of each individual unit or service.

6.3. Compliance with the agreed payment dates is an essential condition for the execution of the delivery or the fulfilment of the contract by the contractor. Non-compliance with the agreed payments entitle the contractor to stop the ongoing work and withdraw from the contract. All associated costs and loss of profit are to be borne by the client. In the event of a delay in payment, interest on arrears will be charged to the extent customary in banking. In the event of non-compliance with two installments for partial payments, the contractor is entitled to allow the deadline to come into effect and to make the accepted acceptances due.

6.4. The client is not entitled to withhold payments due to incomplete total delivery, guarantee or warranty claims or complaints.

6.5. The contractor retains ownership of the delivered works and assignable rights until full payment.

7. Copyright and Use

7.1. All copyrights to the agreed services (concepts, strategies, programs, documentation, etc.) belong to the contractor or his licensors. The customer is exclusively granted the right to use the concepts or the software after payment of the agreed fee exclusively for his own purposes, only for the use agreed in the contract. The present contract only acquires a license to use the software or the concepts. Distribution by the client is excluded under copyright law. No rights to the use specified in the present contract are acquired through the cooperation of the customer in the production of the software. Any infringement of the contractor’s copyrights will result in claims for damages, in which case full satisfaction must be paid, which also includes lost profits.

7.2. The customer is permitted to make copies for archiving and data backup purposes provided that the software does not contain an express prohibition from the licensor or third parties and that all copyright and property notices are transferred to these copies unchanged.

7.3. If the disclosure of the interfaces is necessary for the creation of interoperability of the software in question, this is to be commissioned by the client from the contractor against payment of costs. If the contractor does not comply with this requirement and decompilation takes place in accordance with copyright law, the results are to be used exclusively to establish interoperability. Misuse will result in damages.

7.4. The client is not permitted to make changes to the works produced by the contractor or to their contents, either himself or through third parties. If the client makes changes, the contractor is released from any liability and warranty.

7.5. If the usage types are not expressly designated individually when a right of use is granted, the types of use to which it applies shall be determined according to the contractual purpose on which both partners are based. Raw data will only be released if this has been deposited within the contract, otherwise only the data intended for the actual purpose will be provided. E.g.: Data provided for publication on a learning platform only includes the training export from the respective authoring tool, the raw data remain the property of skillbest GmbH. If the customer submits a raw file with content for revision, the raw file revised by skillbest GmbH will not be delivered either.

7.6. With full payment of the total fee and the ancillary costs, the customer acquires the agreed right of use to the works created in fulfilment of the order in the delivered version, for the agreed purpose and scope of use. If no agreements have been made about the purpose and scope of use, the minimum scope required to fulfil the order applies. Any other or more extensive future use requires the approval of skillbest GmbH, which is valid for the fee.

8. Right of withdrawal

8.1. In the event that an agreed delivery time is exceeded due to the contractor’s sole fault or unlawful action, the customer is entitled to withdraw from the relevant order by registered letter if the agreed service is not provided in essential parts within the reasonable grace period and the customer is not at fault meets.

8.2. Force majeure, labour conflicts, natural disasters and transport blockages as well as other circumstances beyond the contractor’s control release the contractor from the provision of services or delivery obligation and allow him to reschedule the agreed delivery time or the agreed time of service provision.

8.3. Cancellations by the client are only possible with the written consent of the contractor. If the contractor agrees to a cancellation, he has the right to charge a cancellation fee of 30% of the order value of the entire project that has not yet been invoiced in addition to the services rendered and costs incurred.

9. Termination

9.1. If a continuing obligation has been entered into between the customer and the contractor, a notice period of three months, at the end of each quarter, shall be deemed to have been agreed – unless otherwise agreed between the contracting parties. The cancellation must be made in writing.

10. Index adjustment

10.1. An index adjustment is deemed to have been agreed for continuing obligations. The index is adjusted annually using the producer price index for business-related services in the version valid at the time of the adjustment. The contractor must inform the client in writing of the index-adjusted price.

10.2. The failure to prescribe the increased fee due to the conditional value guarantee under no circumstances constitutes a waiver or concealment of the value guarantee claim. The contractor is therefore entitled in any case to demand the claims resulting from the value guarantee, and this also retrospectively.

11. Warranty, Maintenance, Modifications

11.1. Notifications of defects are only valid if they relate to reproducible defects and if they are made within two weeks after delivery of the agreed service or, in the case of individual software, after acceptance of the work in accordance with point 3.5. 3.5. documented in writing, in the form of the reproducibility of the error occurrence. In the event of a warranty, improvement always has priority over price reduction or rescission. If the notice of defects is justified, the defects will be remedied within a reasonable period of time, whereby the client enables the contractor to take all measures necessary to examine and remedy the defects. The assumption of defectiveness according to § 924 ABGB is excluded.

11.2. Costs for assistance, incorrect diagnosis and error and fault elimination for which the client is responsible, as well as other corrections, changes and additions are carried out by the contractor against payment. This also applies to the correction of defects if program changes, additions or other interventions have been made by the customer himself or by third parties.

11.3. Furthermore, the contractor assumes no liability for errors, disruptions or damage due to improper operation, modified operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) as well as transport damage is due.

11.4. For works that are subsequently changed by the customer’s vicarious agents or third parties, any warranty by the contractor is void.

11.5. If the subject of the order is the change or addition to existing programs, the warranty relates to the change or addition. This does not reinstate the warranty for the original program.

11.6. Warranty claims expire six (6) months after delivery.

12. Liability

12.1. The contractor shall only be liable to the client for damage for which she/he can prove that he is at fault in the event of gross negligence. This also applies analogously to damage caused by third parties called in by the contractor. In the event of culpable personal injury, the contractor is liable without limitation.

12.2. Liability for indirect damage – such as lost profits, costs associated with business interruption, loss of data or claims by third parties – is expressly excluded.

12.3. Claims for damages become statute-barred in accordance with the statutory provisions, but no later than one year after knowledge of the damage and the person causing the damage.

12.4. If the contractor performs the work with the help of third parties and warranty and/or liability claims arise against these third parties in this context, the contractor assigns these claims to the customer. In this case, the client will primarily rely on these third parties.

13. Loyalty

13.1. The contractual partners commit themselves to the maintaining of mutual loyalty. You will as the client shall refrain from any enticement and employment, also via third parties, of employees who have worked on the realization of the orders of the other contractual partner during the term of the contract and 12 months after the end of the contract. The contractual partner who violates this is obliged to pay lump-sum compensation in the amount of one year’s salary of the employee.

14. Data Protection, Secrecy

14.1. The contractor obliges his employees to comply with the provisions of Section 15 of the Data Protection Act.

14.2. The contractor is entitled to store and evaluate connection data for billing purposes. Furthermore, this data may be used to rectify technical defects. Neither this data nor content or other customer data will be passed on to third parties outside of the framework of legal requirements or the necessity for operation. However, routing and domain information must be disclosed. The client expressly agrees to this.

15. Miscellaneous

15.1. The Contractor reserves the right to immediately and without prior warning physically and/or logically disconnect this connection from the Internet if there is reasonable suspicion that network activities are emanating from a client’s connection that are either dangerous to security or operational for the Contractor or other computers. The resulting costs and any resulting damage must be replaced by the customer.

15.2. Should any individual provisions of this contract be or become ineffective, this shall not affect the remaining content of this contract. The contractual partners will work together in partnership to find a regulation that comes as close as possible to the invalid provisions.

15.3. The general terms and conditions apply subsidiary to conflicting provisions of the contract concluded between the parties and in addition to non-regulated contract content.

16. Final Provisions

16.1. Unless otherwise agreed, the legal provisions applicable between entrepreneurs apply exclusively according to Austrian law, even if the order is carried out abroad. In the event of any disputes, the local jurisdiction of the competent court for the place of business of the contractor shall apply exclusively. For sales to consumers within the meaning of the Consumer Protection Act, the above provisions only apply insofar as the Consumer Protection Act does not provide for other mandatory provisions.