1. Scope

1.1 These General Terms and Conditions (GTC) apply solely to contractual relationships between handshake Handelsges.m.b.H. and handshake Consulting GmbH (hereinafter collectively referred to as “handshake”) and business entities. They do not apply to contracts with private individuals, as the statutory provisions apply in such cases.

1.2 Unless expressly agreed otherwise, our GTC, as communicated to the contractual partner, apply. The contractual partner agrees that in the event they use their own terms and conditions, our terms and conditions shall prevail, even if the contractual partner’s terms remain unchallenged. These conditions apply to all services provided by the contractor or a subcontractor named by them under this agreement.

1.3 Should individual provisions of these GTC be invalid, unenforceable, or void, the validity, enforceability, or effectiveness of the remaining provisions shall remain unaffected. In the event of invalidity, unenforceability, or voidness, the provision shall be replaced by a valid, enforceable provision that most closely reflects the economic intent of the original.

1.4 Amendments and supplements to these terms and conditions require written form to be effective. All declarations concerning the contractual relationship must also be made in writing.

1.5 Amendments to the GTC become legally binding at the beginning of the month following the month after written notification to the contractual partner, unless a written objection is received by handshake by then.

1.6 handshake shall inform the contractual partner in the notice about the change of the GTC and point out that their silence after the following month shall be deemed consent to the change.

1.7 The contractual partners are bound by any offers (especially orders or commissions) for 30 calendar days. An offer is deemed accepted when it is confirmed in writing.

2. Delivery and Services

2.1 Delivery is at the expense and risk of the client.

2.2 Unless otherwise agreed, handshake performs its services at its business location.

2.3 Announced delivery dates, unless a fixed transaction has been agreed, are only approximate estimates. The agreed delivery period begins when all necessary working documents have been provided by the client.

2.4 Storage measures and costs required due to reasons within the client’s sphere are borne by the client.

2.5 If handshake cannot perform delivery or services due to force majeure or other unforeseen obstacles within handshake’s or its subcontractors’ sphere, handshake is released from its obligations for the duration of the hindrance. No claims arise for the contractual partner from this.

2.6 If delivery/service is delayed due to handshake’s fault and not fulfilled within a reasonable grace period set by the client (minimum 40 days), the client is entitled to withdraw from the contract, excluding further claims.

2.7 The basis for the creation of individual programs is the written specification prepared by the contractor based on the documents and information provided by the client or made available by the client. If the client does not provide documents or fails to correct the specification prepared by handshake, handshake’s specification shall prevail.

2.8 handshake is entitled to modify its service or delivery obligations for objectively justified reasons and to a reasonable extent. Changes to the scope of services will be communicated to the client in writing, by fax, email, or other technical means. With one month’s notice to the end of any calendar month, these changes become valid. The applicable tariff is visible in the current price list or agreement.

3. Prices and Payment

3.1 Fees and prices (collectively “prices”) of handshake result from the respective contract. Billing occurs per agreement but no later than the day the services are provided by handshake. The date of provision is determined by handshake and informally communicated to the client. Amounts are due immediately without deduction and free of charges. For ongoing contracts, billing occurs monthly in advance.

3.2 For orders comprising several units, the contractor is entitled to issue invoices after delivery of each unit or service.

3.3 Training and explanations requested by the client are billed separately. Insurance is only provided upon the client’s request.

3.4 Prices quoted do not include VAT unless explicitly stated.

3.5 handshake is entitled to adjust prices prospectively for objectively justified reasons, particularly due to collective agreement changes, industry-wide changes, internal agreements, or necessary cost adjustments (materials, transport, external work, financing, etc.). These price changes will be communicated to the client in writing, by fax, or email. With one month’s notice to the end of a calendar month, they become valid. The client has an extraordinary termination right within one month if the price increase exceeds 10% beyond mere inflation adjustments.

3.6 In case of late payment, handshake charges default interest of 15% annually, without prejudice to claims for higher proven damages. handshake is also entitled to withhold services and deliveries or withdraw from the contract after a minimum four-week grace period. Advance payments are forfeited. Further rights, especially for damages, remain unaffected.

3.7 If handshake manages dunning internally, the debtor agrees to pay €10 per reminder and €5 per half-year for maintaining the debt record.

3.8 Payments received by handshake are applied first to compound interest, then to interest and ancillary costs, then to pre-litigation costs (such as lawyer or collection fees), and finally to outstanding principal, starting with the oldest debt.

3.9 Offsetting by the client is not permitted unless the claim is legally established or acknowledged by handshake.

3.10 The client is not entitled to withhold payments due to incomplete overall performance, guarantee, or warranty claims, or complaints. However, in justified complaints, an appropriate part of the invoice amount may be withheld.

3.11 Cancellations by the client are only possible with handshake’s written consent. In the event of cancellation, handshake is entitled to charge, in addition to services rendered and incurred costs, an appropriate cancellation fee.

4. Ownership Rights

4.1 Ownership of goods (including software, manuals, data carriers, or hardware) transfers to the client only after full payment of all handshake’s claims related to the acquisition.

4.2 Intellectual property (copyrights, trademarks, patents, other protective or usage rights, etc.) remains with handshake, regardless of differing provisions.

4.3 Assertion of retention of title only constitutes withdrawal from the contract if explicitly declared.

4.4 Rights granted to the client are — unless explicitly agreed otherwise in writing — non-transferable and non-exclusive. In particular, the client is not entitled to rent, lend, lease, sell, or otherwise make the product or parts thereof available to third parties, either for payment or free of charge, without handshake’s express written consent. The object code of programs may not be disassembled, nor may the program logic or parts thereof be reconstructed in any technical manner. Sub-licenses may likewise not be granted.

5. Cost Estimates, Presentations

5.1 Cost estimates are prepared to the best of professional knowledge, but no guarantee for accuracy is assumed.

5.2 Cost estimates are subject to charges. A fee paid for a cost estimate will be credited if an order is placed based on the estimate.

5.3 The client’s invitation to prepare a presentation (draft) is considered an order to deliver a defined service, creating a legal claim for compensation. The amount of compensation is determined by agreement. If no amount was agreed upon at the time of invitation, reasonable compensation is owed. Holding the presentation is deemed simultaneous acceptance and fulfillment of this order.

5.4 Plans, drafts, or similar created during the preparation of a cost estimate remain the property of handshake. The (potential) contractual partner is not entitled to use these in any way.

6. Contract Duration, Withdrawal, Termination

6.1 For ongoing contractual obligations, unless otherwise agreed, the contract is concluded for an indefinite period and may be terminated by either party in writing with one month’s notice to the end of any quarter. The postmark date applies.

6.2 The contract can be terminated by either party at any time for good cause. Good cause particularly exists if a party fails to meet its contractual obligations despite a minimum four-week grace period or if performance becomes impossible due to force majeure or third-party actions that cannot be averted with economically reasonable means.

6.3 handshake is especially entitled to withhold its services while retaining its rights under the contract if the client:
a) does not allow maintenance by handshake;
b) misuses the product or causes disruptions;
c) engages in other actions contrary to handshake’s business policy.

6.4 Upon termination, client-provided data (except for those needed for documentation) will be deleted. Licensed software components or program packages from handshake must be returned.

6.5 handshake is entitled, if there is suspicion of a breach of these terms, to have compliance reviewed by a confidentiality-bound person. The client must grant this person access to all business premises and IT systems. If the suspicion proves unfounded, handshake bears the cost of the review.

7. Warranty

7.1 handshake provides its services according to the economically reasonable state of the art. handshake warrants that services meet the functions and performance features included in the product description at the time of contract or guaranteed by agreement.

7.2 Upon delivery, goods must be inspected immediately. Identified defects must be reported to the seller immediately, at the latest within 3 days, specifying the type and scope of the defect. Hidden defects must be reported immediately upon discovery. If no defect report is made or made in time, the goods are deemed accepted. The client must always prove that the defect existed at the time of transfer.

7.3 handshake assumes no responsibility for service disruptions due to defective hardware or software not supplied or handed over by handshake.

7.4 Used movable goods, wear parts, and accessories (e.g., data carriers, type wheels) as well as repairs due to unauthorized third-party interventions are excluded from warranty. If contractual items are used with third-party devices or programs, warranty applies only if the defects would occur even without such connection.

7.5 Beyond the provisions in 7.1 to 7.4, further warranty claims are excluded.

7.6 The warranty period is six months from delivery or service.

7.7 A recourse claim under § 933 b ABGB expires after the warranty period.

7.8 handshake reserves the right to fulfill warranty claims by improvement, replacement, or price reduction, except where statutory rescission rights apply.

7.9 If a material defect of the software program is addressed, the client must provide the contractor, free of charge and during normal working hours, with the computer system, software, protocols, diagnostic documents, and data required for testing and diagnostics.

8. Liability

8.1 Any liability — unless expressly assumed in writing — only arises in cases of gross negligence or willful intent by handshake; this does not apply to personal injury. The contractual partner must always prove gross negligence. Claims must be asserted within twelve months of the damage event; otherwise, they expire.

8.2 Further claims against handshake and the manufacturer, their agents, and assistants, especially for damages (such as delay, impossibility, positive breach of contract, pre-contractual fault) or indirect damages, consequential damages, lost profits, unrealized savings, as well as claims by third parties or due to unlawful acts, are excluded unless they are based on willful intent or gross negligence.

8.3 handshake is not liable for content, data, or any actions related to or arising from data, information, etc.

8.4 If the client makes adjustments or settings not coordinated with the contractor, handshake assumes no liability. Coordination requires written form. The client must prove proper use and settings.

8.5 If work is carried out using third parties and the client is informed, warranty and liability claims under the law and the third party’s terms are deemed assigned to the client.

8.6 Any recourse claims under the “Product Liability Act” (PHG) against handshake are excluded unless the recourse claimant proves that the defect originated within handshake’s sphere and was caused by at least gross negligence.

8.7 These liability limitations also apply in the event of rescission or any other retroactive cancellation or annulment of the contract.

8.8 The software may contain errors and is not designed or intended for use in hazardous environments that require fail-safe performance, including but not limited to nuclear facilities, air traffic control, weapons systems, life-support machines, or any other application where software errors could directly lead to death, injury, or severe property damage (“high-risk activities”), or in environments involving substantial financial transactions (stock exchanges, banks, etc.). handshake disclaims any contractual or statutory warranty or liability for fitness or suitability for high-risk activities.

9. Copyright, Ancillary Copyrights, and Use

9.1 The contractor remains the owner of all copyrights and ancillary copyrights to the software, database, services, including related documentation. This applies even if the client modifies, edits, or combines the software with other software with the provider’s consent.

9.2 Existing markings, copyright notices, or ownership indications must not be removed or altered by the client.

9.3 The software is intended solely for the client’s own use. The client receives the right to use the software only for their own purposes, only on the contractually specified hardware, and only to the extent of the acquired number of licenses for simultaneous use on multiple workstations.

9.4 The creation of copies for archiving and data backup purposes is only permitted with the prior written consent of the contractor, provided that there is no explicit prohibition in the software by the licensor or third parties and that all copyright and ownership notices are transferred unchanged to these copies.

10. Data Protection and Change of Address

10.1 The client consents that the personal data contained in the purchase contract may be stored and processed by the contractor using automated systems for contract fulfillment. The client agrees that handshake may also transfer the data abroad or to third parties for company-wide processing.

10.2 The contractual partner gives their explicit consent to be included in handshake’s publicly accessible user directory.

10.3 The client is obliged to inform the contractor of changes to their business address as long as the contractual legal transaction has not been fully fulfilled by both parties. If this notification is omitted, communications sent to the last known address shall be deemed delivered.

10.4 handshake takes all technically appropriate and economically reasonable measures to protect the data stored at handshake against unauthorized access. However, handshake is not liable if someone unlawfully gains access.

11. Jurisdiction and Governing Law

11.1 Place of payment and performance is Vienna.

11.2 These General Terms and Conditions are governed by Austrian substantive law. The same applies to every agreement or declaration made by handshake, unless expressly and in writing agreed otherwise. References under Austrian law to foreign law or the UN Sales Convention do not apply.

11.3 The competent court at handshake’s registered office has jurisdiction.

12. Miscellaneous

12.1 The assignment of rights and claims from this contract requires the prior consent of the other party. This does not apply to purchase price or license fee claims.

12.2 Rights and obligations under these General Terms and Conditions or the underlying contract apply jointly to multiple contractual partners, whereby handshake may choose to hold all or individual partners liable.

12.3 Communications from handshake to the contractual partner are deemed received if sent to the last address, fax number, or email address provided in writing. Timely dispatch by post preserves deadlines.

12.4 If insolvency or similar proceedings are opened over the client’s assets or such proceedings are rejected for lack of assets, any ongoing contracts are immediately terminated, provided they have not been fully fulfilled. All handshake claims become due immediately. The client or insolvency administrator has no right to demand further services from handshake. The same applies in the case of the initiation of reorganization or similar insolvency measures.