Terms and conditions

General terms and conditions of business, installation and software (GTC)

PowerGIS gis for you Geographical Information Systems GmbH

(hereinafter "PowerGIS")

Status: November 2022

Unless otherwise individually agreed in writing, the following conditions apply to all order acceptances and their processing.

Different terms and conditions of the client only apply if they have been expressly recognized in writing by PowerGIS. You do not bind PowerGIS even if it was expressly referred to in the written order and was not contradicted by PowerGIS.

1. Contract

1.1. Contracts with PowerGIS are only concluded by the customer's written acceptance of an offer made by PowerGIS in writing. Changes to the offer by the customer are considered counter-offers and only lead to the conclusion of a contract if PowerGIS expressly agrees to the changes in writing.

1.2. The transmission of advertising material and price lists does not constitute an offer. Offers are generally non-binding. Written offers from PowerGIS are valid for 30 days from the date of the offer.

1.3. Any contracts concluded by sales representatives and sales partners require the express written consent of PowerGIS to be effective.

2. Prices

2.1. The prices quoted by PowerGIS are net prices (plus applicable sales tax) and are always quoted in EURO. They only apply to this order.

2.2. Assembly services, installation services, measurement services, support and other services are charged according to the actual effort, per 15 minutes or part thereof. Billing is based on the PowerGIS hourly rates applicable at the time the order is placed (currently €130 net plus VAT/hour or €200 net plus VAT/hour for training courses).

2.3. Costs of program carriers or any legal transaction fees are to be paid by the customer.

2.4. In individual cases, the fulfillment of a confirmed offer can be delayed due to unforeseeable circumstances. In this case, PowerGIS reserves the right to adjust the volume of the offer if necessary due to the resulting additional expenses.

2.5. PowerGIS reserves the right to adjust the prices accordingly due to changed purchasing conditions and/or changed scope of services. Adjustments will be announced in writing by PowerGIS at least 30 days in advance.

3. Payment and consequences of late payment

3.1. Unless otherwise agreed, PowerGIS invoices are payable upon receipt of the goods/after provision of the service within 7 days of invoicing (received on the PowerGIS bank account) without any deductions. In the event of default in payment, default interest of 12% pa will be charged. In this case, the customer must also bear all other costs arising from reminders, extrajudicial collections, etc.

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

3.3. Compliance with the agreed payment dates is an essential condition for the execution of the delivery or the fulfillment of the contract by PowerGIS. In the event of default of payment or deterioration in the customer's creditworthiness, PowerGIS reserves the right to deliver/provide the current services and other goods/services only against prepayment or to withdraw from the contract. All associated costs and loss of profit are to be borne by the customer.

3.4. Place of fulfillment is the headquarters of PowerGIS in 5071 Wals-Siezenheim, Austria.

4. Delivery

4.1. Unless otherwise agreed in writing, the type of delivery is left to PowerGIS. PowerGIS is entitled to make partial shipments. Deliveries are made from the main warehouse or distribution warehouse. The goods are delivered at the expense and risk of the customer. The risk passes to the customer at the latest when the goods are dispatched. This also applies if partial deliveries are made or if other services are provided, such as delivery and installation by PowerGIS. If the shipment or acceptance of the goods is delayed for reasons for which PowerGIS is not responsible, the risk is transferred to the customer from the day the goods are ready for shipment.

4.2. Software is delivered in machine-readable form and the license codes on data carriers or in electronic form.

4.3. The installation on the customer's system or machines, as well as any training of the customer's employees, must be agreed separately and are not included in the price (unless expressly agreed).

4.4. In the event of a delay in acceptance by the customer, the latter must pay the costs caused by the delay (reasonable storage costs, additional administrative work, etc.). The costs of a second delivery attempt are to be paid separately by the customer.

5. Returns

Returns that have not been agreed upon will not be accepted by PowerGIS and will be returned to the sender at the sender's expense and risk. He acknowledges that PowerGIS is not obliged to provide temporary storage. A 20% handling fee will be charged for returns agreed between the customer and PowerGIS. Agreed returns are made at the expense and risk of the returnee.

6. defects and warranty

6.1. The customer must check the delivered goods immediately upon delivery with the care required in accordance with Section 377 UGB and immediately give notice of defects in writing, otherwise any claims under any title (in particular claims for damages) are excluded by making a note on the delivery note or bill of lading or otherwise. If, for special reasons, an immediate inspection of the goods for defects is not possible upon acceptance, this must be noted in writing on the delivery note or bill of lading or otherwise, otherwise any claims are excluded. In this case, existing defects must be reported to PowerGIS in writing within 10 days of the possibility of inspection, otherwise any claims are excluded.

6.2. There is a warranty for production and material defects that deviate noticeably from the technical standard and affect the usability of the goods. The warranty period is 12 months from delivery of the goods and after this period any other claims for damages are also excluded. PowerGIS provides no warranty for damage resulting from (i) manipulation by the customer or a third party, (ii) changes/additions by the customer, (iii) use of non-original spare parts, (iv) wearing parts, (v) improper use, (vi) excessive stress due to incorrect use, or (vii) lack of maintenance.

6.3. PowerGIS assumes no liability for compliance with foreign public law regulations, unless this has been expressly agreed. It is up to the customer to ensure compliance with all public law regulations. The customer declares that he is familiar with all relevant regulations for the use of the product and undertakes to take all precautions to ensure that these regulations are observed during installation and operation.

6.4. The rectification of defects takes place at the discretion of PowerGIS at its business premises or at the location where the goods are located. If the defect is remedied on the business premises of PowerGIS, the customer must return the goods to PowerGIS properly packaged at his own expense upon request.

Special Provisions for Software:

6.5. PowerGIS guarantees that it is entitled to grant licenses to the software in accordance with the contractual provisions and that the contractual use by the customer does not infringe the rights of third parties. Furthermore, PowerGIS guarantees that the software has the specifications listed in the contract.

6.6. The guarantee for all data used in connection with the software, in particular for their completeness, topicality or correctness of the representation, is excluded.

6.7. The customer is responsible for selecting the software. PowerGIS does not warrant that the software will meet customer requirements, be fit for any particular purpose, or that any software errors that may occur can be corrected.

6.8. PowerGIS does not warrant that the software will be entirely error-free or that its operation will be uninterrupted. If defects are reported within 12 months of delivery that significantly impair the function of the software, PowerGIS will replace the software or rectify the defect, provided that:

• the software has always been used properly and in accordance with the user instructions and other information such as accompanying letters, instructions for oral training, etc.;
• the reported defect in PowerGIS is reproducible;
• Updating of the operating system or network operating system (or operating system add-ons and databases) to the versions required by PowerGIS were carried out by the customer;
• no unauthorized changes have been made to the software by the customer or third parties (even if the defect occurs in a part of the software that has not been directly changed, the guarantee is excluded);
• PowerGIS is granted access to Customer's hardware and software during normal business hours;
• the hardware has been upgraded to the technical standards required by PowerGIS (e.g. modem, processor, main memory (RAM), hard disk, etc. (these requirements may change with updated versions).

6.9. The customer must report any defects immediately in writing and in detail to PowerGIS. If an error analysis/diagnosis to be carried out by PowerGIS turns out that the defect does not constitute a warranty case, the customer must pay all costs for assistance, incorrect diagnosis and error and fault elimination (billing according to time expenditure according to point 3.2. of these GTC).

7. Liability

7.1. Liability for any direct or indirect damage, from whatever title, is limited to intent and gross negligence. In the case of slight negligence, the liability of PowerGIS is excluded.

7.2. The liability of PowerGIS in the event of a defect is, for whatever claims, limited to the amount of the purchase price for the part of the goods affected by the defect. In particular, there is no liability for the reimbursement of expenses incurred by the customer in connection with the improvement or replacement of the goods by PowerGIS, which also applies in particular to any necessary dismantling and reinstallation of the products.

7.3. Liability for the loss of data, loss of profits, consequential damage (from defects), savings not achieved, loss of interest and indirect damage, in particular damage from third-party claims against the customer, is excluded to the extent permitted by law.

8. Retention of title

8.1. The goods remain the property of PowerGIS (reserved goods) until full payment of the entire purchase price, the associated interest and the costs associated with its enforcement. It is agreed that PowerGIS's retention of title is retained even if the delivered goods are mixed or processed.

8.2. The customer may only resell the reserved goods after obtaining the express written consent of PowerGIS. If the goods have been resold by the customer to a third party before the full purchase price has been paid, the purchase price to be paid by the customer is deemed to have been assigned to PowerGIS at the time of sale. The customer therefore undertakes to store the proceeds generated in such a way separately and to transfer them to PowerGIS immediately. Should the goods be seized or confiscated, the customer undertakes to inform PowerGIS within three days and to provide all information necessary to enforce the right of ownership.

8.3. PowerGIS is entitled to reclaim the goods subject to retention of title in the event of default of payment, impending suspension of payments, protests of bills of exchange and cheques, enforcement measures, unsatisfactory information about the solvency and / or financial situation of the customer. In this case, the customer is only entitled to withhold the goods if this right has been recognized by PowerGIS or has been legally established by a court.

9. Delivery/performance dates

9.1. The delivery/service dates specified by PowerGIS in order confirmations or other business documents are only expected delivery/service dates and are not fixed dates.

9.2. If a fixed date is nevertheless expressly agreed between the parties in writing, compliance with the delivery/service date requires the timely receipt of all documents, approvals, releases to be supplied by the customer and compliance with the agreed terms of payment and other obligations (in particular system and assembly requirements to be provided by the customer). PowerGIS is not responsible for delays in delivery and cost increases caused by incorrect, incomplete or subsequently changed details and information or documents made available and cannot lead to a delay by PowerGIS. The customer bears the resulting additional costs. In the event of a change or addition to an order, PowerGIS may not be able to meet any agreed fixed deadlines. In this case, a reasonable delivery/service period is deemed to have been agreed. However, if timely delivery/service provision is not possible due to special circumstances, the customer can only withdraw from the contract if a grace period of at least 6 weeks set by him in writing has expired without success. In the event of withdrawal, the customer is not entitled to claim damages from PowerGIS.

10. License Rights to Software

10.1. PowerGIS grants the customer the non-transferable, non-exclusive and personal right to use the software as follows. The customer is only entitled to use the programs specified in the contract and the license codes in combination with the hardware supplied by PowerGIS as intended. The customer is not entitled to reproduce the software, grant sublicenses or assign the rights of use - for whatever reason - to a third party. The customer undertakes not to pass on the passwords sent to him to third parties.

10.2. The customer acknowledges that he is not entitled to any rights to the software and the associated documentation other than those expressly agreed in writing. All other rights - in particular all exploitation and disposal rights - as well as ownership rights to the software belong exclusively to PowerGIS or its licensor.

10.3.If the customer changes his hardware, he must immediately and permanently delete the software on the storage devices of the previously used hardware and notify PowerGIS of this in writing. The customer must keep secret all information relating to the software that is not readily accessible to the general public and may only use it in accordance with the contractual provisions and mandatory statutory provisions.

10.4. PowerGIS makes the software available to the customer in machine-readable form. The source code is not made available to the customer. The customer is also not entitled to edit, change, decompress, disassemble or otherwise reverse engineer the software or determine the source code, unless this is permitted by mandatory statutory provisions.

11. System requirements at the customer:

The intended use of the software provided by PowerGIS places certain minimum requirements on the customer's system. The necessary system requirements are to be provided by the customer at his own expense. The current system requirements are available at SYSTEM REQUIREMENTS.

12. value protection

12.1. All prices for ongoing services specified in the contract (in particular costs for hosting) are subject to value assurance and are adjusted annually, at the beginning of each year, in advance.

12.2. The consumer price index specified by our supplier serves as a measure for calculating the stability of value. If no index is specified, PowerGIS uses the consumer price index 2020, as published monthly by "Statistics Austria", or a successor index that takes its place, as the basis for price adjustments. The starting point is the index number for the previous year in the annual average of the conclusion of the contract. Increases or decreases are calculated based on the previous year's index number for the following year.

12.3. The non-demanding of the value guarantee does not mean a waiver of value guarantee.

13. Assembly and installation of the software

13.1. Unless otherwise agreed in writing between the customer and PowerGIS, assembly and installation services as well as any services in connection with the training of the customer's employees, which are provided by PowerGIS on behalf of the customer, will be charged according to the actual expenditure of PowerGIS according to point 2.2. of these General Terms and Conditions charged. During these working hours, times of arrival and departure and resulting delays (e.g. waiting times, renewed arrival, etc.) apply, which are to be borne by the customer and charged in full.

13.2. All cash expenses such as accommodation and daily allowances for the assembly, installation and surveying technicians, auxiliary material, etc. will be charged to the customer in addition. Travel costs are charged at the level of the official kilometer allowance.

13.3. The assembly/installation date must be agreed in advance between PowerGIS and the customer. At the agreed assembly/installation date, the customer must ensure that all necessary actions are taken and disruptions are avoided in order to ensure that the assembly/installation can begin on time and that the PowerGIS employees can work unhindered. In particular, the customer must ensure that the employees of PowerGIS can work safely and that all occupational safety measures are observed. If the safety of the PowerGIS employees is not guaranteed by the customer, the work will not be carried out until the customer has guaranteed safe work. Any costs incurred will be charged to the customer in full in accordance with point 2.2 of these General Terms and Conditions. Times of arrival and departure and resulting delays (e.g. waiting times, new arrivals, etc.) apply to these working hours.

13.4. The assembly/installation takes place on site in a lockable and heated room provided by the customer free of charge. The customer must ensure that the equipment, etc. is made available in the assembly/installation room for the duration of the assembly/installation.

13.5. During installation/commissioning, the customer must ensure that a sufficiently trained network administrator of the customer is present (at his expense) in order to be able to make the necessary network settings. Any necessary means of communication (internet connection, telephone) are to be made available by the customer free of charge.

13.6. The customer must also ensure that access for PowerGIS employees is possible via paved roads with a car. If this is not the case, the customer must ensure that the employees of PowerGIS have an alternative means of transport (possibly including a chauffeur/operator/pilot) such as skidoos, snow cats, helicopters, cable cars, etc. at their own expense. The customer must inform PowerGIS in advance of the intended means of transport and ensure that both the PowerGIS employees and their tools/goods can be transported safely to the assembly site. The duration of the journey counts as working time and the resulting delay (e.g. waiting times, renewed arrival, etc.) counts as working time and will be charged to the customer in full in accordance with point 2.2 of these General Terms and Conditions.

14. property rights of third parties

If third parties claim that the customer has violated property rights due to the use of the software in question, the customer is obliged to inform PowerGIS immediately in writing. Without the prior written consent of PowerGIS, the customer is not entitled to make an acknowledgment or to make any other settlement about alleged legal violations. The customer is obliged to ward off any claims asserted by a third party (if necessary also in court). PowerGIS has the right to join any such litigation. Each party has to bear its own procedural costs.

15. Force majeure

If PowerGIS is unable to fulfill its contractual obligations or made it significantly more difficult for reasons beyond its control, such as external, unavoidable and unforeseeable events, non-performance by its supplier, strikes and lockouts, it can cancel the contract in whole or in part. In this, as in all other cases, the buyer waives any legal claim arising from delay or non-execution of the delivery/service.

16. mistake

An objection to an order accepted by PowerGIS due to error and shortening by more than half is excluded.

17. Exclusion of set-off

Unless there is a current account relationship, claims by PowerGIS cannot be offset against counterclaims by the client without the express written consent of PowerGIS.

18. Copyright protection

The design of products, names, brands, designations, drafts, etc. that come from PowerGIS are protected by copyright. The presentation of the products in catalogs and brochures, sent images, drawings, sketches and other documents are the intellectual property of PowerGIS. All of the aforementioned and other documents made accessible in business transactions may not be used for other purposes or duplicated and made accessible to third parties without the express written consent of PowerGIS. They are to be handed over immediately at the request of PowerGIS.

19. Use of text and images

The duplication, reproduction or publication of texts and/or images (including extracts or sections) from PowerGIS require the prior written consent of PowerGIS and are prohibited without this consent.

20. Contract Duration/Termination

20.1. The duration of the contract and the duration of the right to use the software are based on the respective contract. In any case, the right to use the software ends upon termination of the contract. Upon termination of the contract, all data carriers provided must be returned to PowerGIS. The software must be immediately and finally deleted and not used any further. This also applies if the software is linked or connected to other programs.

20.2. If a contract between the customer and PowerGIS has been concluded for an indefinite period, it can be terminated in writing by both PowerGIS and the customer subject to a 3-month notice period effective December 31.12 of the year.

20.3. PowerGIS's right to immediately terminate the contract for good cause remains unaffected. An important reason applies in particular:

• a serious or repeated minor breach of contract by the customer;
• the opening of preliminary, composition or bankruptcy proceedings against the customer's assets or the rejection;
• the opening of bankruptcy proceedings due to a lack of assets to cover costs;
• the non-payment of PowerGIS invoices despite a reminder with a grace period of 14 days;
• (for software) the termination of the software license from a supplier of PowerGIS, to the extent such termination

refers to the software sublicensed to Customer by PowerGIS.

21. Privacy Policy

21.1. The parties undertake to treat all information, in particular personal data, that they receive in connection with this contract confidentially for an unlimited period of time.

21.2. PowerGIS cannot conclude a contract with the customer without the personal data provided by the customer. PowerGIS processes this data to fulfill contractual obligations or to carry out pre-contractual measures in accordance with Art 6 Para 1 lit b GDPR. In addition, PowerGIS is entitled, insofar as this is necessary for debt collection purposes or to enforce claims from the contractual relationship, to transfer master data and personal data provided by the customer, in any case company data or name, address, information on default of payment and outstanding balance to lawyers and collection agencies. The personal data is stored by PowerGIS for as long as is necessary to fulfill the purpose of the data processing and insofar as there is a corresponding legal obligation or there are open legal claims from a legal relationship relating to the data that require longer storage. Further information on data protection law and your rights as a data subject can be found at [link to data protection declaration].

22. partial nullity

Should individual provisions of these General Terms and Conditions be or become invalid, the validity of the remaining provisions shall not be affected. In this case, the parties agree to replace any ineffective provision with an effective provision that comes as close as possible to the economic intention of the parties.

23. Applicable law, place of jurisdiction and place of performance

23.1. Austrian law applies, the application of UN sales law is excluded.

23.2. The place of fulfillment of the contract is the registered office of PowerGIS in 5071 Wals-Siezenheim, Austria.

23.3. The competent court in 5020 Salzburg, Austria, is exclusively agreed as the place of jurisdiction.