General Terms and Conditions of WITAS
Ing. Thomas Woitischek
WITAS – Woitischek IT and Advisory Services
hereinafter referred to as "WITAS"
As of: 19 October 2026
Note: These General Terms and Conditions are governed by Austrian law. Pursuant to clause 1.6, only the German version is authoritative; this English translation is provided for convenience only.
1. Scope
1.1. These General Terms and Conditions, hereinafter “GTC”, apply to all present and future business relationships between WITAS and the respective Client.
1.2. These GTC apply exclusively to entrepreneurs within the meaning of the Austrian Commercial Code (UGB). Contracts with consumers are not concluded on the basis of these GTC.
1.3. The type and scope of the services owed are determined by the following, in this order of precedence:
- individual agreements and contracts,
- offers and order confirmations confirmed by WITAS,
- service descriptions, service agreements and service level agreements,
- these GTC.
In the event of conflicts, the higher-ranking provision prevails. Individually agreed deviations remain unaffected. Unless such a deviation has been agreed, the provisions of clauses 17 and 20 take precedence over deviating provisions in pre-formulated service descriptions, service agreements and service level agreements. The assumption of deviating liability limits, guarantees, contractual penalties or indemnification obligations must be expressly agreed in text form, clearly specifying their scope. Mere statements on services, dates or availability do not establish any further assumption of liability. The precedence of a data processing agreement pursuant to clause 21.3 remains unaffected.
1.4. Deviating terms and conditions of the Client do not become part of the contract unless WITAS has expressly agreed to their validity in text form. Mere acknowledgement or the provision of services without objection does not constitute consent.
1.5. These GTC also apply to further orders within an ongoing business relationship, even if they are not expressly referred to again for an individual follow-up order, provided that their initial validity was effectively agreed.
1.6. Insofar as these GTC are provided in an English version in addition to the German version, only the German version is authoritative in the event of discrepancies or questions of interpretation.
1.7. The version of these GTC agreed upon at the conclusion of the contract applies. Changes for existing contractual relationships require an effective agreement; the mere publication of a new version does not replace such an agreement.
2. Conclusion of Contract and Offers
2.1. Offers from WITAS are non-binding unless they are expressly designated as binding.
2.2. In the case of offers expressly designated as binding, the contract is concluded by the Client’s timely acceptance. In all other cases, the order constitutes an offer by the Client, which WITAS may accept by order confirmation in text form or by commencing the commissioned services. Silence on the part of WITAS does not constitute acceptance.
2.3. Text form within the meaning of these GTC includes, in particular, e-mail, electronically transmitted documents and other permanently traceable electronic communication.
2.4. Statements on effort, dates, resources or costs are estimates unless they have been expressly designated as a fixed price, binding delivery date or binding commitment.
2.5. Guarantees, warranties, contractual penalties, indemnification obligations or other commitments by WITAS that go beyond its statutory obligations exist only if they have been expressly designated as such and agreed in text form. Statements in offers, presentations, service descriptions or documentation do not constitute guarantees.
2.6. Unless an ongoing obligation to perform, to provide services on call or to remain on standby has been expressly agreed, WITAS is not obliged, even within an existing business relationship, to accept further orders or to keep certain capacities available. Requests, tickets and incident reports outside the already agreed scope of services do not in themselves establish any additional obligation to perform or any binding response time. Obligations to perform already assumed remain unaffected.
3. Subject Matter of Services
3.1. WITAS provides services in particular in the areas of IT consulting, IT strategy, CIO services, project management, IT administration, cloud and infrastructure, Microsoft 365, cybersecurity, automation, artificial intelligence, software development, integration, monitoring, support and other technical services.
3.2. The specific scope of services is determined exclusively by the respective agreement or service description.
3.3. Unless a specific result or a specific work is expressly owed, WITAS provides services to the best of its knowledge and with the professional care customary in the industry. In these cases, no specific economic, organisational or technical result is owed.
3.4. In the case of work performed under a contract for work, in particular custom-developed software, the scope of services owed is determined by the agreed service description. Properties, functions, interfaces or purposes of use that have not been expressly agreed are not deemed to be owed.
3.5. Consulting and technical recommendations by WITAS do not replace legal, tax or regulatory advice. In particular, the examination of the legal, tax and regulatory permissibility of a solution remains the responsibility of the Client, unless WITAS has been expressly commissioned to carry out such an examination involving duly qualified third parties.
3.6. Statutory or regulatory requirements, for example from data protection law, cybersecurity regulations, industry regulation, accessibility, archiving law or tax law, are only part of the implementation owed at the Client’s premises if such implementation has been expressly agreed. WITAS’s own mandatory statutory obligations remain unaffected.
3.7. WITAS does not assume any function as a corporate body, any power of procuration (Prokura), commercial power of attorney or any other statutory representation or management function at the Client. In the case of CIO services, interim management and comparable services, WITAS acts in an advisory and coordinating capacity to the agreed extent. Business decisions, budget approvals and the ultimate statutory and organisational responsibility remain with the Client and its corporate bodies. This does not establish an obligation to implement all recommendations or decisions. WITAS owes technical implementation services only insofar as they form part of the expressly agreed scope of services.
3.8. Services in connection with machines, plants, control systems, sensor systems or other operational technology (OT) are limited to the agreed IT-related components, in particular network, access, connectivity, software and monitoring. The planning, design, safety assessment and approval, the operation and compliance with plant and machinery safety regulations are the sole responsibility of the Client or the plant operator. Interventions in running plants are carried out only after express approval by the Client.
4. Changes to Services and Additional Services
4.1. Requirements, changes or extensions that go beyond the agreed scope of services constitute additional services.
4.2. Additional services are charged based on actual effort at the agreed hourly rate. If there is no price agreement for the additional service in question, the hourly rate communicated to the Client prior to the order applies. Effectively agreed price adjustments pursuant to clause 14.7 remain unaffected.
4.3. WITAS is entitled to make the acceptance and performance of additional services conditional upon confirmation in text form of the scope of services, the remuneration and the effects on dates. Until the corresponding order has been placed, there is no obligation to perform the additional service. Services already agreed remain unaffected.
4.4. Change requests by the Client may lead to an adjustment of effort, costs, resources and dates.
4.5. In agile projects, backlogs, tickets, user stories, tasks, minutes or comparable project documents serve to specify the agreed scope of services. Insofar as requirements contained therein go beyond this, clauses 4.1 to 4.4 and 4.6 apply. The mere inclusion of a requirement in such documents does not replace an order for an additional service. Effort estimates within such projects are not fixed-price commitments unless this has been expressly agreed.
4.6. Additional services are approved by the Client or by a contact person designated pursuant to clause 5.8 who is authorised to make the decision in question. The provision of access, information or other cooperation alone does not replace an order for additional services. Call-off and approval procedures already agreed remain authoritative.
5. Client’s Obligations to Cooperate
5.1. The Client shall provide WITAS in good time with all information, documents, access, systems, contact persons, decisions, test data and other resources required for the provision of services.
5.2. The Client is responsible for the correctness, completeness and legal permissibility of the data, information, content and specifications it provides.
5.3. The Client shall ensure that it holds all necessary rights, licences, consents and authorisations required for the performance of the order.
5.4. The Client shall notify WITAS in good time of any changes to its systems, infrastructure, processes or requirements that may affect the provision of services by WITAS.
5.5. If the Client fails to fulfil its obligations to cooperate, or fulfils them late, agreed deadlines and dates are extended at least by the period of the resulting hindrance plus a reasonable period for resuming the work.
5.6. Any additional work or waiting times arising as a result may be charged by WITAS based on actual effort.
5.7. WITAS is not liable for delays, restrictions or damage insofar as these are causally attributable to missing, late, incorrect or incomplete cooperation by the Client.
5.8. The Client shall designate to WITAS contact persons with technical and organisational decision-making authority. Approvals, instructions and decisions of these contact persons in text form are binding on WITAS and are deemed instructions of the Client within the meaning of these GTC.
5.9. The Client shall indemnify and hold WITAS harmless against all third-party claims based on the fact that data, content, specifications, systems or instructions provided by the Client infringe the rights of third parties or statutory provisions, or that the rights and authorisations required pursuant to clause 5.3 did not exist. This also includes the reasonable costs of legal defence.
6. Instructions of the Client
6.1. WITAS shall inform the Client of technical, operational or security-related risks of a desired course of action insofar as there is a statutory or expressly agreed duty to inform or warn in connection with the agreed service. This does not constitute an agreement on any further general examination or ongoing monitoring of the Client’s systems, processes or specifications. WITAS is entitled to provide further information and recommendations beyond this.
6.2. If, despite a corresponding notice, the Client insists on a particular implementation, configuration or course of action, WITAS may refuse to carry it out if, in its professional assessment, it causes an unjustifiable risk.
6.3. If, after a documented notice from WITAS in text form, the Client requests a particular implementation, configuration or course of action contrary to WITAS’s recommendation, the Client bears the risk causally arising therefrom. Liability of WITAS for the consequences based on this deviation is excluded in accordance with clause 17. Liability for WITAS’s own breaches of duty unrelated thereto continues to be governed by clause 17. There is no entitlement to the execution of unlawful instructions.
6.4. Any communication from WITAS in text form, in particular by e-mail, in tickets, minutes or project documents, is deemed a documented recommendation or documented notice.
7. Dates and Provision of Services
7.1. Dates are only binding if they have been expressly agreed as binding.
7.2. Compliance with dates requires the timely fulfilment of all of the Client’s obligations to cooperate.
7.3. WITAS is entitled to provide partial services and to issue partial invoices, provided this is reasonable for the Client.
7.4. Services outside agreed service hours or outside WITAS’s usual business hours are only owed if this has been expressly agreed.
7.5. Without a separate service level agreement, there are in particular no guaranteed response times, recovery times or availability values.
7.6. If credits, penalties or comparable financial consequences for failure to meet service levels are agreed in a service level agreement, these shall, subject to the exceptions pursuant to clause 17.2, constitute liquidated and conclusive damages for losses resulting from the shortfall in question. Further claims for damages due to this service level shortfall are excluded.
Unless otherwise agreed, such credits and penalties are limited in total per calendar month to 20 percent of the net remuneration owed for the affected service for the month in question. They are credited against the applicable maximum liability amounts in accordance with clause 17.14. The statutory right of judicial mitigation applies to contractual penalties.
The obligation to provide the agreed service, the warranty provisions pursuant to clause 13 and the right to terminate the contract for good cause remain unaffected. Claims due to other, independent breaches of duty are governed by clause 17.
7.7. If WITAS is in default with a service agreed as binding, the Client must set a reasonable grace period of at least 14 days in text form before it may withdraw from the affected contract or part of the contract.
7.8. Permanent on-call availability, personnel redundancy or substitution at any time is only owed if this has been expressly agreed. In the event of an unforeseeable personal inability to perform, WITAS shall, where possible, inform the Client without undue delay of the effects on agreed services and of possible interim solutions. WITAS is entitled to engage suitable third parties to provide services in accordance with clause 8.1. Expressly agreed ongoing service obligations remain authoritative.
8. Third-Party Providers, Cloud Services and External Services
8.1. WITAS is entitled to engage suitable employees, subcontractors and other qualified third parties to provide services.
8.2. Insofar as WITAS integrates services of third-party providers such as Microsoft, Amazon Web Services, Atlassian, hosting providers, telecommunications companies, software manufacturers or other platform operators into the solution, the respective terms of use, licence terms and technical framework conditions of these providers apply in addition.
8.3. If contracts with third-party providers are concluded directly in the name of the Client, the contractual relationship exists exclusively between the Client and the respective third-party provider. In doing so, WITAS acts merely as an intermediary or messenger and assumes no liability for the services of the third-party provider.
8.4. WITAS has no influence on changes to prices, licence models, functions, interfaces, product terms or the discontinuation of services by third-party providers.
8.5. WITAS is not liable for outages, service disruptions, security incidents or other impairments within the sphere of responsibility of a third-party provider unless these were caused or contributed to by a breach of duty for which WITAS is responsible under clause 17. Clauses 17 and 26.2 apply to vicarious agents engaged to fulfil WITAS’s own contractual obligations.
8.6. Necessary adjustments due to changes by a third-party provider are deemed additional services unless their performance is expressly part of an ongoing maintenance or service agreement.
8.7. If third-party providers increase their prices, corresponding directly attributable additional costs may be passed on to the Client.
9. IT Security and Cybersecurity
9.1. WITAS provides agreed security services in accordance with the state of the art that is appropriate at the time the services are provided and in accordance with the agreed scope of services.
9.2. The Client is aware that, even with proper design and implementation of security measures, no IT system can be completely protected against attacks, malware, vulnerabilities, operating errors or other security incidents.
9.3. The provision of security services therefore does not constitute a guarantee that cyberattacks, security incidents, data loss or business interruptions will be completely prevented.
9.4. However, WITAS is liable in accordance with clause 17 for damage insofar as a security incident was caused by a breach of duty for which WITAS is responsible.
9.5. The Client is obliged to give appropriate consideration to material security risks and recommendations for action communicated by WITAS.
9.6. If, despite documented information, the Client decides against a recommended security measure, the Client bears the resulting risk insofar as the damage would, with overwhelming probability, have been avoided or reduced had the recommended measure been implemented.
9.7. Penetration tests, permanent security monitoring, incident response, vulnerability scans, patch management, backup monitoring and comparable security services are only owed if they have been expressly agreed.
9.8. Responsibility for maintaining an appropriate level of security in overall operations, in particular for authorisation concepts, employee training, emergency plans, insurance cover and compliance with statutory reporting and due diligence obligations, remains with the Client unless individual tasks have been expressly assigned to WITAS.
10. Data Backup
10.1. Responsibility for appropriate and up-to-date data backup lies with the Client unless data backup is expressly part of WITAS’s scope of services.
10.2. Before material changes, migrations, updates, repairs or interventions in production systems, the Client shall ensure that a current and restorable backup of the relevant data exists, unless WITAS has been expressly commissioned with this task.
10.3. If WITAS has been commissioned with data backup, the scope, frequency, retention period, storage location, encryption, monitoring and restoration are governed by the respective agreement.
10.4. The setup of a backup does not include regular restore testing unless this has been expressly agreed.
10.5. WITAS’s liability for data loss is governed by clause 17. Insofar as the Client has culpably failed to carry out, or inadequately carried out, a data backup incumbent upon it, WITAS’s liability is limited to the reasonable restoration effort that would have been required had this data backup obligation been properly fulfilled; this applies only insofar as the backup failure caused or increased the damage. This additional limitation does not apply to the breach of data backup obligations expressly assumed by WITAS; for these, the agreed scope of services pursuant to clauses 10.3 and 10.4 and the liability provisions pursuant to clause 17 apply. Any causal contributory negligence of the Client shall be taken into account. The exceptions pursuant to clause 17.2 remain unaffected.
11. Software Development and Acceptance
11.1. Custom-developed software, automations, integrations or comparable work performed under a contract for work are based on the agreed service description.
11.2. The Client shall examine test versions or acceptance versions provided by WITAS without undue delay.
11.3. Acceptance may only be refused on the grounds of material defects. A material defect exists in particular if the productive use in accordance with the contract is considerably restricted or impossible.
11.4. Immaterial defects do not prevent acceptance and are remedied within the scope of the warranty.
11.5. The service is deemed accepted if
a) the Client confirms acceptance,
b) the Client uses the service productively,
c) the Client does not report sufficiently documented material defects within 14 calendar days of provision for acceptance, or
d) the Client refuses acceptance for reasons that are not based on a material defect.
11.6. Hidden defects that were not recognisable upon proper examination remain unaffected thereby within the agreed warranty period.
11.7. Changes or extensions after acceptance are deemed new or additional services.
11.8. The Client is responsible for the use of the software in its operating environment, for checking the results before business-critical use and for compliance with the regulations applicable to its business operations when using the software.
12. Artificial Intelligence and Automation
12.1. If services are provided using artificial intelligence or automated systems, their results may, despite appropriate technical measures, contain errors, incomplete information or unexpected results.
12.2. The professional plausibility check and approval of the results generated during the operation of an AI solution or automation provided to the Client, before their business-critical use, are the responsibility of the Client unless these tasks have been expressly assumed by WITAS. Without a separate agreement, WITAS does not owe ongoing review of all results generated later. Insofar as WITAS uses AI-supported tools to create its own services, the agreed scope of services and the applicable warranty and liability provisions remain unaffected.
12.3. WITAS may use suitable software-supported and AI-supported tools for the efficient provision of services, provided that this does not violate contractual confidentiality and data protection obligations.
12.4. Confidential information or personal data of the Client are only transmitted to external systems within the scope of the respectively agreed and legally permissible processing.
12.5. If the Client uses AI-supported solutions or automations provided by WITAS, the Client is responsible for deciding on their use, defining the operational controls and fulfilling the regulatory obligations applicable to it according to its respective legal role. A legal or regulatory examination of the intended use at the Client is only owed if it has been expressly agreed. WITAS’s own mandatory statutory obligations remain unaffected.
13. Warranty
13.1. The warranty period is six months from handover or acceptance of the respective service.
13.2. The Client shall examine services without undue delay after handover and shall give notice of recognisable defects without undue delay and with sufficient documentation in accordance with § 377 UGB.
13.3. Notices of defects must describe the error precisely enough for WITAS to understand and reproduce it.
13.4. In the event of a justified notice of defects, WITAS initially has the right to rectification or remedial work within a reasonable period.
13.5. A price reduction or rescission of the contract is only possible if rectification is impossible, is refused by WITAS or does not succeed within a reasonable period despite at least two reasonable attempts at rectification, insofar as legally permissible.
13.6. The presumption of defectiveness pursuant to § 924 ABGB is excluded in business-to-business transactions.
13.7. There is no warranty for defects or malfunctions attributable to causes for which WITAS is not responsible, in particular
a) changes by the Client or by third parties,
b) improper operation,
c) unsupported system environments,
d) changes to third-party products,
e) missing or faulty cooperation by the Client,
f) necessary updates or security measures not implemented,
g) deviations from WITAS’s recommendations ordered by the Client.
The exclusion of warranty applies in each case only insofar as the circumstance in question caused the defect.
13.8. In the case of changes or extensions to existing systems, the warranty relates exclusively to the part carried out by WITAS. This does not establish any warranty for pre-existing components.
13.9. The obligation to provide updates pursuant to § 7 VGG in conjunction with § 1 (3) VGG is excluded in business-to-business transactions insofar as legally permissible, unless an update or maintenance service has been expressly agreed.
13.10. If a notice of defects proves to be unjustified, in particular because the malfunction is attributable to one of the causes listed in clause 13.7, WITAS may charge the effort for analysis and remedy based on actual effort, provided that the Client could have recognised this upon reasonable examination.
14. Remuneration and Billing
14.1. Remuneration is governed by the respective agreement.
14.2. Unless a fixed price has been agreed, billing is based on actual time spent at the agreed hourly rates.
14.3. Cost estimates do not constitute a binding cost ceiling unless they have been expressly agreed as such. As soon as a significant overrun becomes foreseeable, WITAS shall inform the Client without undue delay in text form of the reasons and the expected additional effort. WITAS is entitled to request an updated approval of effort before carrying out further work associated with the overrun and to postpone this work until clarified. In doing so, ongoing operational services already assumed and necessary safeguarding measures within the scope of existing obligations shall be taken into account. Claims to remuneration for services rendered in accordance with the contract remain in accordance with the statutory provisions.
14.4. Travel time counts as working time. Necessary travel, accommodation and other project-related costs are charged additionally unless otherwise agreed.
14.5. For longer-running projects, WITAS is entitled to issue monthly partial invoices or partial invoices corresponding to the progress of the services.
14.6. Licences, cloud services, hardware, software and other third-party services procured by WITAS on behalf of the Client may be charged separately.
14.7. All prices are in euros and exclusive of value added tax unless otherwise stated. In ongoing contractual relationships, WITAS is entitled to adjust the hourly rates and flat fees once a year with two months’ notice in text form, but at most to the extent of the change in the Consumer Price Index 2020 published by Statistics Austria, or the index replacing it, since the last adjustment plus two percentage points. The basis for the first adjustment is the final index value published for the month in which the contract was concluded. For further adjustments, the comparative index value used for the previous adjustment is the new basis. The comparative value is in each case the monthly index value last finally published before the notice.
15. Payment Terms
15.1. Unless otherwise agreed, invoices are due for payment without deduction within 14 days of the invoice date.
15.2. A payment is only deemed made once the amount is available to WITAS.
15.3. In the event of late payment, the statutory default interest pursuant to § 456 UGB applies, insofar as the Client is responsible for the default.
15.4. The Client also bears the legally permissible reminder and collection costs necessary for appropriate legal enforcement.
15.5. If, despite a reminder and a reasonable grace period, the Client is more than 14 days in default with a due and enforceable payment obligation, WITAS is entitled to suspend further services to an appropriate extent until payment is made in full. The suspension shall be announced in text form, stating its intended start and the services affected. In the case of ongoing operational services, it is carried out in compliance with statutory protection and surrender obligations in such a way that the Client has the opportunity to organise the necessary continuation. Mandatory provisions of insolvency law remain unaffected.
15.6. Delays resulting from a justified suspension due to late payment are not deemed default on the part of WITAS.
15.7. Set-off against claims of WITAS is only permitted if the counterclaim has been expressly acknowledged by WITAS or established by final court judgment.
15.8. A right of retention of the Client on the basis of claims from other contractual relationships is excluded.
15.9. Objections to an invoice must be raised in text form, stating the reasons, within 14 days of receipt of the invoice. Undisputed parts of the invoice must be paid on time.
15.10. Unless otherwise expressly agreed, hardware, licences and other external services whose amount can be determined in advance and which WITAS is to procure in its own name for the Client must be paid in full in advance before the binding order is placed. WITAS is only obliged to place the order after receipt of the requested and correspondingly itemised advance payment.
15.11. WITAS may make the acceptance of new orders conditional upon a down payment, advance payment or remuneration in stages. The amount, due date and the service stages affected thereby are specified in the offer or in the order confirmation. There is only an obligation to commence these services after receipt of the agreed payment.
15.12. If the counter-performance is jeopardised due to poor financial circumstances of the Client which WITAS did not have to be aware of at the time the contract was concluded, WITAS is entitled, in accordance with § 1052 ABGB, to refuse the affected advance performance until the counter-performance has been rendered or sufficiently secured. WITAS shall communicate the reasons and the type and extent of the security required in text form. In the case of ongoing operational services, existing statutory protection and surrender obligations shall be observed. Mandatory provisions of insolvency law remain unaffected.
16. Cancellation and Termination of Contract
16.1. One-off projects may only be cancelled by the Client after the order has been placed with the consent of WITAS.
16.2. In the event of a cancellation accepted by WITAS, all services already provided, obligations entered into and external costs that can no longer be avoided must in any case be paid.
16.3. In addition, WITAS is entitled to charge a cancellation fee of 30 percent of the net order value not yet performed, unless the Client proves that WITAS has suffered no damage or significantly less damage.
16.4. The individually agreed terms and notice periods apply to ongoing contractual relationships.
16.5. If no notice period has been agreed, ongoing contractual relationships may be terminated with three months’ notice to the end of a month.
16.6. The right to immediate termination for good cause remains unaffected.
16.7. Good cause exists in particular if a contracting party fails to fulfil a material contractual obligation despite a warning in text form and the setting of a reasonable grace period. A grace period is not required if a remedy is impossible or if continuation would be unreasonable taking into account the circumstances and the interests of both parties. Statutory restrictions on termination of the contract, in particular pursuant to §§ 25a and 25b IO, remain unaffected.
16.8. Services provided by WITAS in connection with handover, migration or transition to another service provider after the end of the contract are charged based on actual effort, unless they are already part of the agreed scope of services.
16.9. After the end of the contract, WITAS is entitled and, at the Client’s request, obliged to deactivate or return the access rights and authorisations to the Client’s systems granted to WITAS and its vicarious agents for the terminated contractual relationship, insofar as these are not required for other continuing service obligations. Deactivation concerns exclusively these authorisations; the Client’s own access remains unaffected. Clause 22.4 applies to the handover. Additional transition, documentation and migration services require a separate order and are charged in accordance with clause 16.8. Upon the end of the contract, the ongoing operating, monitoring, security and maintenance services owed by WITAS under the terminated contractual relationship end, unless separate transition services have been agreed. Statutory obligations and the data processing agreement remain unaffected. Liability for services previously provided continues to be governed by clause 17.
17. Liability and Damages
17.1. WITAS is liable to the Client for damage resulting from the breach of contractual or statutory obligations only in the event of intent or gross negligence. Liability for slight negligence is excluded. This also applies to the conduct of persons for whom WITAS is responsible under the statutory provisions. Clause 17.2 remains unaffected.
17.2. The exclusions and limitations of liability for damages contained in these GTC do not apply to culpably caused personal injury, to damage resulting from intentional or particularly grossly negligent conduct, or to other cases in which the respective exclusion or limitation is impermissible under mandatory law.
17.3. Insofar as WITAS is liable and there is no exception pursuant to clause 17.2, liability per claim is limited to the net remuneration of the affected order, but to a maximum of EUR 100,000.
In ongoing contractual relationships, the net remuneration of the affected order is replaced by the net remuneration attributable to the affected ongoing service for the twelve months preceding the event causing the damage. The decisive factor is the remuneration owed, irrespective of when it was invoiced or paid. If the affected ongoing service has existed for less than twelve months, only the period since its commencement is taken into account; no extrapolation to twelve months takes place.
In the case of services remunerated at a periodic flat rate, the net remuneration agreed for the first agreed billing period is used as the basis for damage events in that billing period. In the case of billing exclusively based on actual time spent, the net remuneration incurred for the affected service up to the event causing the damage, including the activity causing the damage, is decisive. In these cases, too, liability amounts to a maximum of EUR 100,000 per claim.
If the net remuneration decisive under the preceding provisions is less than EUR 10,000, the maximum liability amount per claim is EUR 10,000.
For all claims arising from the business relationship with the same Client that are attributable to the same calendar year, WITAS’s liability across all orders and contractual relationships with this Client is limited to a total of EUR 100,000. Attribution is based on the time of the event causing the damage; clause 17.4 applies to series of claims. Lower maximum liability amounts per claim under the preceding provisions and the exceptions pursuant to clause 17.2 remain unaffected.
17.4. Several instances of damage based on the same cause or on similar causes with an inherent factual connection are deemed a single claim. The first event causing damage in this series of claims is decisive for determining the relevant remuneration and the attribution to a calendar year.
17.5. The maximum liability amounts pursuant to clause 17.3 are independent limitations of liability for damages. Should the exclusion of liability for slight negligence pursuant to clause 17.1 not be effective in an individual case, these maximum amounts also apply to damage caused by slight negligence, insofar as the limitation in question is itself effective. Clause 17.2 remains unaffected.
17.6. WITAS is not liable for indirect damage and consequential damage. Excluded in particular is compensation for lost profit, lost savings, damage resulting from business interruptions or production downtime, financing costs, loss of business opportunities and reputational damage. This also applies to costs of substitute procurement claimed as consequential damage and to third-party claims against the Client and official penalties or fines imposed on it. Clause 17.7 remains unaffected.
17.7. The exclusion pursuant to clause 17.6 does not apply in the exceptions pursuant to clause 17.2. Insofar as individual instances of damage are not covered by the exclusion pursuant to clause 17.6 or this exclusion is not effective in an individual case, any liability of WITAS is governed by the remaining provisions of this clause 17, in particular the maximum liability amounts pursuant to clause 17.3.
17.8. The provisions of clause 10 apply additionally to data loss. The exceptions pursuant to clause 17.2 also remain unaffected in this respect.
17.9. WITAS is not liable for damage attributable exclusively to the sphere of responsibility of the Client or of a third-party provider. Insofar as WITAS itself or a person for whom WITAS is responsible caused or contributed to such damage through a breach of duty, any liability of WITAS is governed exclusively by the remaining provisions of this clause 17.
17.10. The Client shall take all reasonable measures to avoid and mitigate damage and shall notify WITAS of recognisable damage without undue delay. Contributory negligence of the Client shall be taken into account to reduce the claim in accordance with the statutory provisions. This applies in particular insofar as the breach of agreed obligations to cooperate, to back up data or regarding security caused the damage or its increase.
17.11. Claims for damages against WITAS must be asserted in court within one year of knowledge of the damage and the party causing it, failing which they become time-barred. The exceptions pursuant to clause 17.2 and longer periods mandatory by law remain unaffected.
17.12. The allocation of the burden of proof is governed by the statutory provisions, in particular § 1298 ABGB.
17.13. The provisions of this clause 17 apply to the Client’s claims for damages irrespective of their legal basis, in particular to claims arising from contractual and pre-contractual breaches of duty, from culpably caused defects, from the breach of duties of protection and care, and from tort.
Warranty claims that do not depend on fault are governed by clause 13 and the relevant specific agreements. Claims for performance of the agreed service, for repayment of remuneration not owed and for restitution after effective cancellation of the contract are not converted into claims for damages by this clause 17. Claims aimed at compensation for damage going beyond this, however, are subject to the provisions of this clause 17.
The exclusions and limitations of liability for damages also apply in favour of WITAS’s employees, vicarious agents, subcontractors and other persons engaged in the performance of the contract.
17.14. Contractually agreed contractual penalties, credits and indemnification payments owed by WITAS are credited against the applicable maximum liability amounts pursuant to clause 17.3, unless expressly agreed otherwise. Insofar as such payments compensate for the same disadvantage, they are also credited against any damages owed for it. There is no double compensation for the same disadvantage. Clause 17.2 remains unaffected.
18. Hardware and Retention of Title
18.1. Hardware, software licences and other goods supplied by WITAS remain the property of WITAS until paid in full, insofar as legally possible.
18.2. The guarantee, warranty and licence terms of the respective manufacturer additionally apply to third-party hardware and software products.
18.3. WITAS is liable for defects in third-party products in accordance with the statutory and contractual provisions only insofar as WITAS is responsible for them. At the Client’s request, WITAS shall assign to the Client the warranty and guarantee claims existing against the manufacturer or supplier, insofar as legally permissible.
18.4. Hardware and data carriers of the Client that are in WITAS’s custody for processing must be fully backed up by the Client before handover. WITAS’s liability for such items is governed by clause 17.
19. Rights of Use and Intellectual Property
19.1. All rights of WITAS already existing before the start of an order remain with WITAS.
19.2. This applies in particular to methods, concepts, templates, libraries, frameworks, scripts, software modules, tools, automations, know-how, documentation structures and general solution approaches.
19.3. Unless otherwise agreed, after payment in full the Client receives a non-exclusive right, unlimited in time, to use work results created individually for it for its own business purposes.
19.4. A transfer of exclusive rights of use, of ownership of source code or of comprehensive exploitation rights must be expressly agreed.
19.5. Even where exclusive rights are agreed, pre-existing components, general libraries, generic modules, tools, methods and know-how remain with WITAS.
19.6. WITAS remains entitled to use general knowledge, methods, experience and non-client-specific solution approaches gained in the course of providing services for other projects.
19.7. Confidential information, trade secrets, personal data and client-specific content may not be adopted or disclosed in the process.
19.8. Open-source software and other third-party components are subject to their respective licence terms. WITAS shall inform the Client on request about the components used and their licences. Compliance with these licence terms in the further use, distribution or modification of the work results is the responsibility of the Client.
19.9. The handover of source code, development environments, build pipelines or internal development tools is only owed if this has been expressly agreed.
19.10. All rights of use granted are subject to the condition precedent of payment in full for the services in question.
19.11. If a third party claims that a work result created by WITAS infringes its intellectual property rights, the Client shall inform WITAS without undue delay in text form and shall leave the defence to WITAS or coordinate it with WITAS. WITAS may, at its own discretion, modify the work result so that no rights are infringed, procure the necessary rights or take back the work result against reimbursement of the remuneration paid for it less a reasonable usage fee. Further claims are governed by clause 17.
20. Confidentiality
20.1. Both contracting parties undertake to treat confidential information and trade secrets that become known to them in connection with the cooperation as confidential.
20.2. Excluded from the duty of confidentiality is information that
a) is generally known or becomes generally known without breach of contract,
b) was already lawfully known to the recipient,
c) was lawfully received from a third party without a duty of confidentiality,
d) was developed independently, or
e) must be disclosed due to a statutory obligation or an official or court order.
20.3. Employees, affiliated companies, subcontractors and legal, tax and business advisers bound to professional secrecy are not deemed third parties within the meaning of this provision, provided that disclosure is necessary for the performance of the contract or for advice and an appropriate confidentiality obligation exists.
20.4. The duty of confidentiality continues for five years after the end of the business relationship. For trade secrets protected by law, it continues for as long as the statutory requirements for protection are met.
20.5. Contractual penalties for breaches of confidentiality or data protection exist only if expressly agreed in text form. Insofar as such contractual penalties are agreed, they require fault, are subject to the statutory right of judicial mitigation and are credited against damages for the same disadvantage. Contractual penalties owed by WITAS require intent or gross negligence unless expressly agreed otherwise in accordance with clause 1.3; unless otherwise agreed, they are limited per breach and in total to the applicable maximum liability amount pursuant to clause 17.3. Clause 17.2 remains unaffected.
21. Data Protection
21.1. Both parties undertake to comply with the applicable data protection provisions.
21.2. Insofar as WITAS processes personal data on behalf of the Client, a separate agreement pursuant to Art. 28 GDPR shall be concluded. Unless otherwise agreed, this is done on the basis of the data processing agreement provided by WITAS.
21.3. Such a data processing agreement takes precedence over these GTC with regard to the processing of personal data. The liability provisions pursuant to clause 17 remain unaffected unless expressly agreed otherwise in the data processing agreement or unless otherwise required by mandatory law.
21.4. The Client remains responsible for the lawfulness of the processing, in particular for legal bases, information obligations, retention periods and instructions to WITAS, insofar as it is the controller under data protection law.
21.5. WITAS is entitled to engage suitable sub-processors in accordance with the data processing agreement.
21.6. In the case of administration, support and maintenance services, the Client shall limit WITAS’s access to personal data to the extent necessary for the agreed service and, where possible, remove, anonymise or otherwise make inaccessible data that is not required before access. The classification of the activity under data protection law is based on the actual circumstances. Insofar as processing on behalf exists, clause 21.2 applies.
22. Access Credentials and Documentation
22.1. Access credentials and administrator authorisations shall be appropriately protected by both parties against unauthorised use.
22.2. The Client is responsible for the secure safekeeping of access credentials handed over to it.
22.3. For security reasons, WITAS is entitled to request the change of insecure or compromised access credentials or to carry out such changes within the scope of the authorisations granted.
22.4. In the event of late payment, WITAS is entitled to withhold the handover of work results and documentation newly created within the scope of the order and not yet handed over, as well as the access credentials required exclusively for their use, until full payment of the remuneration due for them, insofar as WITAS is not obliged to perform in advance. Excluded from this are access credentials provided by the Client and the respective current customer and administrator access to the Client’s own accounts and systems. Statutory obligations of return, deletion and cooperation, as well as those regulated in the data processing agreement, remain unaffected. Remuneration for additional documentation, preparation, handover and migration services is governed by clause 16.8. The provisions on rights of use and source code pursuant to clause 19 remain unaffected.
22.5. The Client grants authorisations to WITAS in accordance with the principle of least privilege, provides WITAS with personalised access, ensures appropriate logging and revokes authorisations that are no longer required without undue delay.
WITAS is liable for actions carried out using WITAS’s access by persons not attributable to WITAS only insofar as WITAS enabled the unauthorised use through gross negligence or intent.
23. Force Majeure
23.1. WITAS is not liable for delays or service failures due to events beyond WITAS’s reasonable control.
23.2. These include in particular natural disasters, war, terrorism, epidemics, official measures, industrial action, large-scale power outages, failures of telecommunications networks, significant disruptions of central internet infrastructure, large-scale cyberattacks on infrastructure or services of third parties and other comparable events.
23.3. The obligations to perform are suspended for the duration and to the extent of the impairment.
23.4. If such an impairment lasts longer than three months and continuation of the contract is no longer reasonable for one party, the affected part of the contract may be terminated with regard to the services not yet provided.
24. Employees and Partners
24.1. During ongoing cooperation and for twelve months after its termination, the Client undertakes not to deliberately solicit employees of WITAS directly engaged in the order or to employ them directly without WITAS’s consent.
24.2. This does not apply to applications made in response to general job advertisements not specifically directed at these persons.
24.3. This provision applies mutatis mutandis to independent partners and subcontractors of WITAS, provided that the Client became acquainted with them exclusively in the course of the cooperation with WITAS.
25. References
25.1. The use of the Client’s name, company name, trademark or logo as a publicly recognisable reference requires the prior consent of the Client.
25.2. WITAS is entitled to describe experience from projects in anonymised form, provided that no conclusions can be drawn about confidential information or the identity of the Client.
26. Transfer of Rights and Obligations
26.1. The transfer of material rights or obligations under a contractual relationship to third parties generally requires the consent of the respective other party.
26.2. WITAS may have individual services performed by suitable subcontractors. WITAS remains responsible for the proper provision of the services owed by WITAS.
26.3. WITAS is entitled to transfer the contractual relationship without the Client’s consent to a company in which Ing. Thomas Woitischek holds an interest or which continues the business operations of WITAS in whole or in part, provided that the Client’s contractual rights are not impaired as a result. The Client will be informed of such a transfer in text form.
27. Final Provisions
27.1. Amendments or supplements to individual agreements should be made in text form for reasons of evidence.
27.2. Should any provision of these GTC be or become wholly or partially invalid or unenforceable, the remaining provisions remain unaffected.
27.3. An invalid provision is replaced by the statutory provisions. Insofar as legally permissible, the parties shall agree on a provision that comes as close as possible to the economic purpose of the invalid provision. This applies in particular to the limitations of liability pursuant to clause 17, which, in the event of their partial invalidity, remain in force to the extent legally permissible.
27.4. Austrian law applies exclusively, excluding its conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods.
27.5. For all disputes arising from or in connection with the contractual relationship, the exclusive jurisdiction of the court having subject-matter jurisdiction at WITAS’s registered place of business is agreed, insofar as legally permissible. WITAS is additionally entitled to sue the Client at its general place of jurisdiction.
27.6. If the Client has its registered office outside the European Union or the European Economic Area, then, by way of derogation from clause 27.5, all disputes arising from or in connection with the contractual relationship shall be finally decided by a sole arbitrator in accordance with the Rules of Arbitration and Mediation of the Vienna International Arbitral Centre of the Austrian Federal Economic Chamber (Vienna Rules). The place of arbitration is Vienna; the language of the proceedings is German or English at the claimant’s choice. WITAS remains entitled to assert remuneration claims before the state courts pursuant to clause 27.5.
27.7. Unless otherwise agreed, the place of performance is WITAS’s registered place of business.