1. Scope and validity
These General Terms and Conditions of Business of ilogs healthcare GmbH - hereinafter referred to as "ILOGS" - for corporate clients (B2B) - hereinafter referred to as "GTCs" - shall always apply unless otherwise agreed with the contracting party - hereinafter referred to as "client" - in agreements.
The order of validity is:
1. Individual agreements in contracts with customers
2. GTCs of ILOGS
3. Any legal provisions
All orders and agreements are only legally binding if they are confirmed in writing by ILOGS and signed by the company. The customer's conditions of purchase are hereby excluded for the legal transaction in question and the entire business relationship. Offers are generally subject to change without notice.
2. Subject matter
These terms and conditions govern the transfer and use as well as the operation and maintenance of ILOGS license material.
Licensed material in the sense of these GTCs comprises standard and individual software in machine-readable form including the associated documentation.
ILOGS grants the customer a non-transferable and non-excludable right to use the licensed material on defined machines and defined locations and provides services for this purpose.
A contract between ILOGS and the customer is concluded with the signing of a purchase, rental or maintenance contract or a written order by the customer.
3. Performance and testing
3.1. Standard software
For standard programs, the customer confirms knowledge of the scope of services of the ordered programs by signing the purchase contract.
3.2. Individual software
The creation of individual software is based on the type and scope of the information and documents provided in full by the customer. The basis for the preparation is a written performance specification. This service description must be checked by the customer for correctness and completeness and must be provided with his approval mark. Later change requests can lead to separate date and price agreements.
3.3. ASP or SaaS
ILOGS offers for its license material also the operation of the system. This takes the form of "Application Service Providing" or "Software-as-a-Service.
No later than four weeks after delivery of the individual software or operation (in the form of SaaS or ASP), the customer must perform an acceptance test. This is confirmed by the customer in a protocol.
If the customer allows the period of four weeks to elapse without acceptance, the service shall be deemed to have been accepted with the end date of the said period.
Possible defects, these are deviations from the approved service description, must be sufficiently documented by the customer and reported to ILOGS in writing. If there are significant defects reported in writing, i.e. if real operation cannot be started or continued, a new acceptance is required after the defect has been remedied. The customer is not entitled to refuse acceptance due to minor defects.
4. Service Levels
A web-based trouble ticket system is available for reporting faults and a hotline is available for category 1 errors.
4.1. Error classes
Blocker/Critical (= Class / Category 1)
The appropriate use of one or more software modules or the overall IT system is not possible or unreasonably restricted. The error has a serious impact on the business transaction or security. These are mainly errors that preclude further processing.
Function-related examples:System shutdown without restart, data loss/data destruction, incorrect results in time-critical mass processing of data.
Measures:The beginning of the error analysis is described in chapter 4.3. These errors are usually corrected with hotfixes, patches or configuration changes. In this case it is absolutely necessary to contact ILOGS by telephone!
Heavy (= class/category 2)
The appropriate use of at least one or more software modules is seriously limited. The error has a significant impact on the business transaction or security, but allows further work to be done.
Function-related examples: Incorrect or inconsistent processing, noticeable undercutting of the agreed performance data of the IT system, accumulation of short-term disruptions to IT operations.
Measures: The beginning of the error analysis is described in chapter 4.3. These errors are usually corrected with hotfixes, patches or configuration changes.
Low (= class/category 3)
The appropriate use of one or more software modules is slightly limited. The error has an insignificant influence on the business transaction or security, but allows further processing without restriction.
Function-related examples: Wrong error message/a program goes into a waiting state and can only be reactivated by pressing a key.
Measures: ILOGS will start processing the error by qualified personnel within a reasonable period of time and, as far as possible, ensure that the cause of the error is corrected - e.g. by changing the configuration of the software, fixing software errors as part of the release policy.
Trivial (= class/category 4)
The appropriate use of one or more software modules is possible without restriction. The error has no or only minor influence on the business transaction or security. These are mainly blemishes or errors that can be avoided by employees of the LN themselves.
Function-related examples: Disturbing additional output on the screen, documentation errors or typing errors.
Measures: ILOGS will take care of error recovery without any special priority in the context of planned preventive maintenance or release policy.
4.2. Failure frequency and availability
ILOGS guarantees a 99 percent average availability of the software within the maintenance readiness times. These are on Austrian working days from Monday to Thursday, from 8am to 4:30pm. Fridays from 8am to 1pm. Outside these times, the service will continue to be offered, but is not subject to guaranteed availability.
If the fault is in the underlying system (hardware, operating system, SQL server, network, etc.), this does not count as failure in the sense of availability.
The system is considered to have failed if there is a class 1 error and more than 25% of users cannot work at their workstations during operating hours.
4.3. Maintenance readiness and response times
Unless otherwise agreed, ILOGS offers a maintenance readiness (support readiness) during the maintenance readiness times. Preventive maintenance and changes to the system are either agreed separately with the customer or take place from Monday to Friday between 7 and 10 pm. During this time the operation may be impaired.
The reaction time is the time period from the notification of ILOGS by the customer up to the written (by ticket system) or telephone contact of ILOGS with the customer. If the period of the reaction time exceeds the limit of the maintenance readiness, the reaction time continues to run when the maintenance readiness begins the next day.
The response times are within two hours for class 1faults and within four hours for class 2faults.
4.4. Bug fixing time
For Class 1 and Class 2bugs, rectification of the fault will begin within two hours of the confirmed fault message.
The system is equipped with generally accepted security measures against hackers and viruses.
5. Delivery date
The agreed delivery dates can only be met if the customer provides all necessary work and documents in full, in particular the approved service description according to point 3.2, by the dates indicated by ILOGS. Delays in delivery and cost increases, which result from incorrect, incomplete or subsequently changed information or documents made available, are not the responsibility of ILOGS and cannot lead to a delay of ILOGS. Any additional costs resulting from this shall be borne by the customer.
6. Prices and payments
All prices are in Euro without sales tax.
The invoices issued by ILOGS including sales tax are payable at the latest two weeks after receipt of the invoice without any deduction and free of charges. In the case of orders which comprise several units (e.g. programmes and/or training, realisation in partial steps), ILOGS is entitled to invoice after delivery of each individual unit or service.
The adherence to the agreed dates of payment is an essential condition for the fulfilment of the contract by ILOGS. In case of default of payment, the customer is obliged to pay default interest of 10% p.a. from the second reminder. ILOGS reserves the right to assert a further damage caused by delay. In any case, the contractual partner must reimburse all necessary and appropriate reminder and collection expenses.
Objections to invoiced claims must be raised by the customer in writing within two weeks of the invoice date, otherwise the claims shall be deemed accepted. Objections do not hinder the maturity of the invoice amount.
In addition, ILOGS is entitled in the case of delay in payment to suspend contractual services from contracts with written notification to the defaulting contract partner until full payment has been made.
The fees indicated are value-hedged on the basis of the Austrian consumer price index CPI 2005.
7. Copyright and use
All rights to the licence material, including all copies of the machine-readable licence material made by the customer, even if it has been edited, translated, unchanged or combined with other programs, remain with ILOGS. The customer is obliged to attach the copyright note of ILOGS on all these copies. The customer undertakes not to make licence material - including copies of any kind, without time limitation - available to third parties. Any passing on, even in the course of a liquidation of the business or bankruptcy, but also the short-term transfer for the production of reproductions, will result in claims for damages, whereby in such a case full satisfaction must be provided.
The customer agrees that individual software or parts thereof commissioned by him can be reused by ILOGS for general use. This means that the individual software can be created more cost-effectively.
8. Right of withdrawal
In the case that an agreed delivery time is exceeded due to the sole fault of ILOGS, the customer is entitled to withdraw from the software order in question by means of a registered letter, if the agreed service is not provided in essential parts within the appropriate grace period without fault of the customer.
Force majeure, labour disputes, natural disasters and transport blocks release ILOGS from the obligation to deliver or allow them to fix a new delivery date.
Cancellations by the customer are only possible with the written consent of ILOGS. If ILOGS agrees to a cancellation, it has the right to charge a cancellation fee of 10% of the purchase price or rent over two years in addition to the services rendered and accrued costs.
It is pointed out that according to the state of the art it is not possible to exclude errors in software programs under all application conditions. The object of this warranty is that the licence material used and not processed by the customer, as described in the product information or offer, is basically usable and essentially works according to the accompanying written material.
The warranty period of six months begins with delivery or acceptance. Notices of defects are only valid if they concern reproducible defects and if they are documented in writing within four weeks after delivery of the agreed service. If the notification of defects is justified, the defects will be remedied within a reasonable period of time, whereby the customer shall enable all measures necessary for inspection and remedy of defects to be taken.
Corrections and additions, which prove to be necessary up to the delivery of the agreed service due to organizational and program technical deficiencies, for which ILOGS is responsible, will be carried out free of charge by ILOGS.
Assistance, error diagnoses as well as error and disturbance removal, which are to be represented by the customer, as well as other corrections, changes and additions are accomplished by ILOGS against payment. This applies to the elimination of defects if changes in the license material or the underlying infrastructure (e.g. operating system, database, etc.) have been made by the customer himself or by a third party.
Bei der Behebung von solchen Störungen wird ILOGS dem Kunden bestmöglich unterstützen. However, ILOGS does not guarantee the results achieved by the programme support and that all faults have been eliminated.
For the reasons stated in the first paragraph, no guarantee can be given that the licence material is free of errors. In particular ILOGS does not guarantee that the program functions meet the requirements of the customer or work together in the selection made by him.
10. Claims of the customer, liability
The liability of ILOGS for license material or the operation is limited to the reimbursement of the purchase price or in case of an operating model in the form of ASP or SaaS at most six monthly fees. The warranty is void if the defect in the Licensed Material arises from subsequent damage or misuse or misapplication.
10.1. No liability for consequential damages
To the highest possible extent within the respective valid law, any claims for damages to ILOGS (including without limitation, claims for loss of profits, interruption of business functions, loss of company information or other pecuniary losses) are excluded, which arise from the use or the impossibility of using the licence material (software errors, malfunctions in the ASP, etc.)
10.2. Legal liability
For deliberately or roughly negligently caused damages, guarantees, malice, injury of life, body and health ILOGS is liable in the context of the legal regulations.
Die Vertragspartner verpflichten sich zur gegenseitigen Loyalität. You shall refrain from any enticement and employment - also via third parties - of employees who worked on the realisation of the orders, of the other contracting party during the term of the contract and for twelve months after termination of the contract. The party in breach shall be obliged to pay damages in the amount of one gross annual salary of the employee.
12. Data protection, confidentiality
The customer and ILOGS commit themselves and their employees to maintain silence about technical, commercial and personnel matters of the respective other contracting party and not to pass on information about it to third parties. The customer assures ILOGS that written concepts or offers addressed to him and their contents are treated confidentially from the time of the first receipt. This excludes in particular the disclosure or transfer of concepts, offers or ] parts thereof to third parties. The obligation of secrecy shall also apply for an unlimited period of time after the termination of a contract or agreement.
13. Term of contract
The contract is concluded for an indefinite period of time and can be terminated with a notice period of three months to 31 December and 30 June of each calendar year by registered letter.
However, both parties expressly waive the right to terminate the contract before the expiry of 12 months from acceptance and complete delivery or rollout of the ordered quantity. The inalienable right of termination for good cause is not affected by this. In particular, incapacity to act on the part of the other contracting party shall be deemed an important reason. If the customer wishes to terminate the contract prematurely for other reasons, the contract shall be deemed terminated upon acceptance of the declaration by the other party under the condition stated below:
In case of premature termination of the contract for other reasons by the customer, ILOGS is entitled to at least half of those current fees which would still have been payable for the duration of the waiver of termination, irrespective of the occurrence and proof of a loss incurred by it or a fault of the terminating party.
13.1. Start of settlement
In the case of standard software, invoicing takes place after delivery. For individual software and ASP/SaaS, invoicing begins on the day of acceptance.
13.2. 16. Normal working hours
Unless otherwise agreed, the quantity on which the order is based will be invoiced. By means of a written rollout plan, a step-by-step commissioning can be agreed and invoiced on a pro rata basis.
15. Severability clause
Should individual provisions of these GTCs be or become invalid or inadmissible, this shall not affect the remaining content of this contract. The contractual partners will work together as partners to find a provision that comes as close as possible to the invalid provision.
16. Normal working hours
The normal working time is eight hours per day. It begins at8amand ends incl. a break at 5:00 p.m.
17. Changes of name or address
The customer must immediately inform ILOGS in writing of any changes to his company name or address. If there is no notification of change, documents shall be deemed to have been received by the customer if they were sent to the address last notified by the customer.
18. Place of jurisdiction
Area of jurisdiction for all disputes resulting directly or indirectly from this contract is for both parties the head office of ILOGS.
19. Final provisions
Unless otherwise agreed, the statutory provisions applicable between registered traders under Austrian law shall apply, even if the order is executed abroad. For sales to consumers within the meaning of the Consumer Protection Act, the above provisions shall only apply to the extent that the Consumer Protection Act does not necessarily provide for other provisions.