1. AREA OF APPLICATION
1.1. The following General Terms and Conditions ("GTC") shall apply whenever (i) CyberGrid GmbH with its registered office at Bayerngasse 3/1 /Top 5, 1030 Vienna ("CyberGrid") acts as a seller of goods/products and/or provider of services in legal transactions, or (ii) reference is made to these GTC in a Contract concluded with a customer ("Customer") for the delivery of goods and/or the provision of services or in any other way.
1.2. All goods delivered and/or services provided by CyberGrid ("Services") shall be specified in an offer or an individual Contract (hereinafter jointly referred to as "Contract"). A legally valid and binding Contract between CyberGrid and a Customer shall contain at least (i) the price for all Services to be provided and (ii) the scope of the Services to be provided by CyberGrid.
1.3. The applicability of the customer's general terms and conditions is hereby expressly excluded and shall not apply under any circumstances.
1.4. In the event of changes to these GTC, CyberGrid shall inform the Customer in writing by e-mail. Notification of changes to the GTC shall be sent to the e-mail address provided to CyberGrid by the Customer. CyberGrid shall be entitled to consider all amendments to these GTC as accepted by the Customer unless a written objection is sent by e-mail to sales@cyber-grid.com within 14 days of the Customer being notified of the amendment to the GTC.
1.5. Provisions in Contracts concluded between CyberGrid, and a Customer shall take precedence over these GTC.
2. OBLIGATION OF THE CUSTOMER TO COOPERATE
2.1. The Customer shall perform all duties agreed upon in a Contract or in these GTC free of charge and shall supply or make available all necessary preliminary work, preliminary products and/or auxiliary materials ("preliminary services") that CyberGrid requires to provide it´s Services. Furthermore, the Customer shall support CyberGrid free of charge with all means and take all measures necessary to enable CyberGrid to properly perform the contractually owed services. CyberGrid shall notify the Customer in writing within a reasonable period of time in the event of defective advance performance.
2.2. The Customer shall also provide all information, data and documents required for the implementation of the Services by CyberGrid, at own expense and on any agreed dates, and shall support CyberGrid in connection with any problem analyses and emergency maintenance or emergency measures to be carried out in connection with the Services to be provided by CyberGrid. Any changes in the Customer's work processes that may lead to changes in the Services to be provided the Customer by CyberGrid for must be agreed with CyberGrid in advance, in particular with regard to the technical and economic effects to be expected by these changes.
2.3. If services are provided on the Customer's premises, the Customer shall provide all components required for the provision of Services by CyberGrid (e.g. network components, connections, supply current including peak voltage equalization, emergency power supply, space for equipment, work areas and infrastructure) in the required quantity and quality free of charge. The Customer is always responsible for ensuring that all manufacturer specifications, in particular with regard to the hardware components provided, are complied with. The Customer must also ensure room and building security, e.g. protection against water, fire and unauthorized access. The Customer is responsible for special security precautions (e.g. security cells) on its premises. The Customer is not authorized to issue instructions of any kind to CyberGrid´s employees.
2.4. If the Customer fails to fulfill its obligations to cooperate on the agreed dates or to the agreed extent, the Services provided by CyberGrid shall be deemed to have been provided in full an in accordance with the Contract despite any shorrtcomings (e.g. with regard to functionality). Schedules for the services to be provided by CyberGrid shall be postponed to a reasonable extent if the Customer fails to comply with its duty to cooperate. Additional services and/or other costs incurred by CyberGrid because of the Customer's failure to cooperate shall be reimbursed separately by the Customer at CyberGrid's respective hourly rates.
2.5. The Customer shall ensure that its employees and assistants (attributable subcontractors, third parties, etc.) handle the equipment used and technologies provided by CyberGrid, and any items provided to the Customer with the greatest possible care. In the event of non-compliance, the Customer shall be liable to CyberGrid for all direct and indirect damages arising therefrom, even in the event of slight negligence.
2.6. CyberGrid expects that all documents, information and data provided by the Customer with regard to the preliminary services to be provided by the Customer are correct, complete and valid and that these documents, information and data can be used for the provision of the services. CyberGrid is under no obligation to check this and accepts no responsibility for its accuracy and completeness.
3. DELIVERY DATES, CHANGE OF SERVICES, INVOLVEMENT OF THIRD PARTIES
3.1. CyberGrid shall provide all services in accordance with the Contract concluded with the Customer. Delivery dates and/or delivery periods for deliveries and services to be provided by CyberGrid shall only be binding if confirmed in writing by CyberGrid.
3.2. The Customer may request changes of the Services to be provided at any time. However, a change request must contain a precise description of the desired change, the reasons for the change and the impact on the agreed schedule and costs, to give CyberGrid the opportunity to assess the change requests, in particular with regard to their feasibility. A proposed change to services shall only be legally binding on CyberGird if it has been confirmed in writing by CyberGrid.
3.3. CyberGrid is entitled to commission third parties to provide all or part of the services without the Customer's consent being required. In particular, CyberGrid is entitled to commission third parties to report relevant trading data in connection with Regulation (EU) No. 1227/2011 on Wholesale Energy Market Integrity and Transparency and all related successor regulations. The third-party service provider must be selected with due care in all cases.
4. CONFIDENTIALITY
4.1. CyberGrid shall maintain confidentiality regarding information and documents that the Customer makes available to CyberGrid within the scope of the Contract.
4.2. The Customer shall maintain strict confidentiality with regard to all information and documents received from CyberGrid, in particular business and trade secrets, and shall not make them accessible to third parties under any circumstances. The Customer shall demonstrable impose this obligation on all employees and any third parties commissioned by the Customer.
4.3. The Customer may only use the services provided by CyberGrid for its own business purposes.
4.4. All documents must be returned immediately at the justified written request of CyberGrid or the Customer.
4.5. The Customer agrees that CyberGrid may make the content of these documents available to its subcontractors.
4.6. All information exchanged between CyberGrid and the Customer shall be treated as confidential ("Confidential Information") and, unless required by law, shall not be disclosed to any other person and shall only be used for the provision of the Services to be performed by CyberGrid.
4.7. Confidential information shall only be passed on or disseminated by employees or agents of third parties of the Customer and only in accordance with the contractual provisions.
5. DATA PROCESSING
5.1. Where applicable, CyberGrid collects and processes personal data, in particular for the performance of a Contract and/or when opening a Customer account, always in accordance with Art. 6 para. 1 lit. b GDPR ("Data"). Which Data is collected can be seen from the respective input forms. Deletion of the Customer account is possible at any time and can be done by sending a corresponding notification to CyberGrid (in writing to office@cyber-grid.com).
5.2. CyberGrid stores and uses the Data provided only for the purpose of processing the Contract. After completion of the Contract and/or deletion of the Customer account, the Data shall be blocked with regard to retention periods under tax and commercial law and deleted after expiry of these periods, unless the Customer has expressly consented to further use of the data or CyberGrid has reserved the right to further use of the data as permitted by law.
5.3. CyberGrid works together with external service providers to process orders, who support CyberGrid in whole or in part in the execution of the Contracts concluded. Certain personal data may be passed on to these service providers in accordance with the following information. For example, CyberGrid may pass on payment Data to the commissioned credit institution as part of payment processing, insofar as this is necessary for payment processing. The legal basis for the transfer of data is Art. 6 para. 1 lit. b GDPR.
5.4. By registering for CyberGrid's email newsletter, the Customer gives their consent to the use of their personal Data in accordance with Art. 6 para. 1 lit. a GDPR. CyberGrid may store the Customer's IP address provided by the Customer's Internet Service Provider (ISP) as well as the date and time of registration in order to be able to trace any misuse of your e-mail address at a later date. The Data collected by CyberGrid when the Customer registers for the newsletter will be used exclusively for the purpose of advertising to the Customer by means of the newsletter. The Customer can unsubscribe from the newsletter at any time. After unsubscribing, the Customer's e-mail address will be deleted from CyberGrid's newsletter distribution list without delay, unless the Customer has expressly consented to the further use of the data or CyberGrid reserves the right to use the data beyond this, as permitted by law.
6. REMUNERATION, INVOICING, TERMS OF PAYMENT & DEFAULT
6.1. If a lump-sum price has been agreed for the services to be provided by CyberGrid, all individual services agreed in the Contract shall be included. If additional work is to be performed by CyberGrid, in particular if the preliminary work provided by the Customer has to be prepared, revised or processed, CyberGrid shall be entitled to invoice the entire additional work on an hourly basis according to the actual personnel and material costs at CyberGrid's usual prices. This includes, in particular, Services provided by CyberGrid outside CyberGrid's normal business hours, the analysis and rectification of faults and errors caused by improper use or operation by the Customer or other circumstances for which CyberGrid is not responsible. In addition, training services are generally not included in the Services and require a separate agreement.
6.2. An agreed time-based remuneration is based on an eight-hour day and a five-day week. Travel time is considered working time.
6.3. All amounts stated are net amounts. All applicable taxes and other charges shall be borne by the Customer. If electricity is supplied to an energy supplier (according to the Regulation on turnover tax fraud, § 2 Z 2 UStBBKV), reverse charge shall apply (§ 1 UStBBKV). The Customer shall provide CyberGrid with all declarations required for the lawful, correct and complete tax treatment of the invoiced amounts upon first request. The invoicing shall comply with the requirements of VAT law, in particular in accordance with § 11 UStG (Value Added Tax Act).
6.4. Travel expenses incurred by CyberGrid in the course of the proper provision of services shall be invoiced separately to the Customer ("Compensation").
6.5. Remuneration and compensation are due and payable within two weeks of receipt of the respective invoice. Payments that are not made by the agreed due date shall bear interest at a rate equal to the three-month Euribor plus one percentage point (100 basis points).
6.6. In the case of payments via third parties, in particular under del credere agreements, the goods shall not be deemed to have been paid for until CyberGrid has received the payment. If several invoices are outstanding, interest payments due shall be set off against the older invoice. A cash discount deduction is not permitted.
6.7. If CyberGrid is in default with the proper provision of services, the Customer may only demand compensation for the damage incurred if CyberGrid or third parties attributable to CyberGrid have caused the default intentionally or through gross negligence.
7. IP, EXPLOITATION RIGHTS
7.1. CyberGrid shall remain the sole owner of all existing exploitation rights, copyrights, utility models, patents and designs in connection with the services provided by CyberGrid.
7.2. In addition, CyberGrid reserves all rights, including intellectual property rights, to all contractual documents, such as specifications, drawings, sketches, catalogs, etc.
7.3. Insofar as CyberGrid provides the Customer with software products or enables the Customer to use software products as part of services, the Customer shall have the non-exclusive, non-transferable, non-sublicensable right to use the software in unmodified form for the duration of the Contract.
7.4. For the use of software products in a network, a separate license is required for each simultaneous user. Each PC requires its own license for the use of software products on individual workstations.
7.5. If CyberGrid provides the Customer with third-party software products, the license conditions of the respective software manufacturer shall take precedence over the provisions of this section.
7.6. Unless a separate agreement is made, no further rights to software products shall be transferred to the Customer. The rights of the Customer in accordance with §§ 40 d, 40 e of the German Copyright Act remain unaffected.
7.7. The documents provided to the Customer by CyberGrid, in particular software product documents, may not be reproduced or distributed in any way, whether for payment or free of charge. In the event of non-compliance, the Customer shall pay a contractual penalty of EUR 15,000 regardless of fault and not subject to judicial mitigation. Any further claims of CyberGrid shall remain unaffected by this.
8. ADDITION OF CYBERGRID; POWER PURCHASE
8.1. CyberGrid warrants that all services owed will be performed with reasonable care and skill and that the services will comply with their agreed specification at the time of delivery.
8.2. The services provided by CyberGrid shall be deemed to have been accepted by the Customer without objection if the Customer does not submit a detailed description of alle claimed defects in connection with the Services provided by CyberGrid within 4 (four) weeks of delivery/performance of the service. This shall also apply to the software provided by CyberGrid - CyberNoc. The applicability of § 924 ABGB, - the presumption of the existence of a defect if it occurs within six months of acceptance of the Service by the Customer - is hereby excluded.
8.3. If the delivered Service is defective, the Customer shall be entitled to demand that the defect be remedied or that a defect-free Service shall be delivered (“warranty remedy). CyberGrid shall be exclusively entitled to choose the warranty remedy. If the defect cannot be remedied, the Customer shall be entitled to reduce the purchase price or withdraw from a Contract if the legal requirements are met.
8.4. The prerequisite for the exercise of any warranty claims is that the Customer duly fulfills his obligations to inspect and give notice of defects within a reasonable period of time in accordance with § 377 UGB
9. LIABILITIES, FORCE MAJEURE, DEFAULT
9.1. CyberGrid shall only be liable for damages caused intentionally or through gross negligence. This shall also apply mutatis mutandis to damages caused by sub-contractors attributable to CyberGrid. Third-party providers recommended or referred by CyberGrid to the Customer for the purchase of hardware components are under no circumstances attributable third parties and CyberGrid does not assume any liability for any damages in these cases. In the event of personal injury caused by CyberGrid, GyberGrid shall be liable to the extent required by law.
9.2. Any liabality of CyberGrid for indirect damages (e.g. loss of profit, indirect damages or other consequential damages) is herewith expressly excluded.
9.3. Claims for damages must be asserted (in court) within six months of knowledge of the damage and the damaging party, otherwise the claim shall be forfeited. If data backups are agreed as a service, liability for the loss of data shall be limited to a total of EUR 15.000, -- and for all other Services provided by CyberGrid with the Contract value of the related Contract..
9.4. Any further claims for damages and warranty claims of the Customer other than those regulated in these GTC, regardless of the legal grounds, are expressly excluded.
9.5. Insofar and as long as obligations cannot be fulfilled on time or properly due to force majeure, such as war, terrorism, natural disasters, fire, strikes, lockouts, embargoes, government intervention, power failures, failure of transportation, telecommunication network and/or data lines, changes in the law after conclusion of the Contract that affect services, or other non-availability of products, this shall not constitute a breach of Contract. CyberGrid shall not be liable for damages caused by force majeure.
9.6. CyberGrid shall not be responsible for any errors in connection with preliminairy services provided by the Customer. CyberGrid accepts no liability for such errors. This also applies to non-delivery, short delivery or defective delivery of hardware components that the Customer purchases from third-party providers, even if these third-party providers are recommended by CyberGrid or even brokered by CyberGrid.
9.7. If CyberGrid is unable to provide services for a reason for which the Customer is responsible, the Customer shall not be entitled to withhold payments, even if CyberGrid does not provide any Services, and all Services provided up to this point in time by CyberGird shall be deemed to have been provided in accordance with the Contract despite any restrictions.
10. TERM OF CONTRACT, EXTRAORDINARY TERMINATION
10.1. Each party has the right to terminate a Contract in writing at the earliest at the end of the contractually agreed minimum term in compliance with the specified notice periods.
10.2. Each contracting party is entitled to terminate the Contract prematurely in writing for good cause. Good cause shall be deemed to exist in particular if obligations arising from a Contract (in particular payment obligations) are breached despite a written request to do so or the threat of termination of the Contract, if insolvency proceedings are applied for or opened against the assets of the other contracting party or if such proceedings are rejected for lack of assets. CyberGrid shall also be entitled to terminate the Contract if CyberGrid cannot reasonably be expected to continue providing the services for economic reasons.
10.3. Upon termination of the contract, the Customer shall immediately return all documents and files received from CyberGrid and vice versa. If a Contract is terminated extraordinarily by the Customer, CyberGrid shall be entitled to invoice the Customer for the services provided up to that point in time. In the event of premature termination by the Customer, CyberGrid shall be entitled to demand from the Customer a lump sum amounting to 50% of the agreed remuneration as compensation for services not rendered. Further claims by CyberGrid shall remain unaffected by this provision.
11. MISCELLANEOUS
11.1. The Customer is not entitled to novate, assign, pledge or transfer the rights and/or obligations arising from an individual Contract, including the assignment or transfer of the individual Contract as a whole, without the prior written consent of CyberGrid.
11.2. All amendments or additions to this Contract must be made in writing to be effective. This also applies to the waiver of this formal requirement.
11.3. This Contract shall be governed exclusively by Austrian law, excluding the conflict of law rules of private international law, the Rome I Regulation and the CISG (Vienna Convention), even if the order is executed abroad.
11.4. All disputes arising from or in connection with a Contract, including disputes regarding the conclusion and validity of a Contract, shall be subject to the exclusive jurisdiction of the competent court in Vienna, the Commercial Court of Vienna.
11.5. Should individual provisions of a Contract be or become void, invalid or unenforceable, this shall not affect the validity of the remaining provisions. The void, ineffective or unenforceable provision shall be replaced by a provision that comes closest to the economic purpose of the void, ineffective or unenforceable provision. The same applies to a loophole in a Contract.
11.6. During the term of a Contract and after termination of a Contract, the Customer shall not entice away any employees working for CyberGrid in the provision of services or have them enticed away by third parties. In the event of an infringement, the Customer undertakes to pay CyberGrid a contractual penalty amounting to twelve times the last gross monthly salary of the employee concerned, but at least the salary of employees of companies in the field of automatic data processing and IT services at the experience level for special tasks (ST2) in accordance with the collective agreement.
11.7. The Customer and CyberGrid agree in writing that their company logo may be used for marketing purposes for the duration of a Contract, in particular to be named as a reference Customer on their websites and on their social media channels (e.g. LinkedIn or Facebook).
11.8. If statutory provisions that are material to the performance of a Contract (e.g. Network Charges Ordinance (NEV), REMIT Regulation) are amended, repealed or modified, the Customer and CyberGrid undertake to comply with the applicable successor provisions.
11.9. Should individual provisions of a Contract concluded between CyberGrid and the Customer contradict the so-called "Market Rules" - i.e. the sum of all rules, regulations and provisions on a statutory or contractual basis which must be complied with by the market participants on the electricity market in order to enable and ensure the proper functioning of this market - as well as the Other Market Rules published by Energie-Control Austria, or should a contract not contain any supplementary provision in this respect, CyberGrid and the Customer hereby agree to adapt this contract to the applicable Market Rules.
11.10. The Customer and CyberGrid agree that a Contract can also be legally signed electronically for both parties using suitable programs (DocuSign, Moxis etc.) and that an electronic signature is equivalent to a handwritten signature of a Contract.
11.11. If the conclusion of, the performance of any obligation under, or exercise of any right pursuant to a Contract would result in the breach of any trade, economic or financial sanctions, export controls, trade restrictions, embargoes or other similar laws, regulations, rules, measures or restrictions (“Sanctions”) or may expose CyberGrid and/or its Affiliates to the risk of any adverse measures pursuant to any Sanctions, CyberGrid is entitled to terminate the Contract in whole or in part by written notice to the Customer with immediate effect and without any liability or compensation. Nothing in this Contract shall, or shall be construed to, require the CyberGrid and/or its Affiliates to act in breach of any applicable Sanctions, or in any way that would expose CyberGird and/or its Affiliates to the risk of any adverse measures pursuant to any Sanctions.
11.12. The German version of these GTC shall take precedence over the English version.
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