GTC

GENERAL TERMS AND CONDITIONS of Josef Brunner-Lochan, registered business owner Seidlgasse 21, Top 13, 1030 Vienna Austria current version August 27, 2024

1. General provisions

1.1 The Contractor shall provide the Client with information technology services as well as the operation of hardware and software components in compliance with the attached Service Level Agreements (SLAs), which form an integral part of these Terms and Conditions.

1.2 These General Terms and Conditions (GTC) shall apply to all current and future services provided by the Contractor to the Client, irrespective of whether express reference is made to the GTC when the contract is concluded. Any terms and conditions of the Client shall only apply if they have been recognized by the Contractor in writing.

2. Scope of services

2.1 The precise scope of the Contractor’s services is defined in the respective SLA with the Client. Unless otherwise agreed, the Contractor shall provide the services during the Contractor’s standard business hours in accordance with the SLA. The Contractor shall arrange for the provision and availability of the services in accordance with the respective SLA.

2.2 The equipment and technology used by the Contractor for the provision of services shall be based on the Client’s qualitative and quantitative service requirements as determined on the basis of the information provided by the Client. If the Client changes its requirements and the new requirements necessitate a change to the services or the technology used, the Contractor shall submit a corresponding offer at the Client’s request.

2.3 The Contractor has the right to change the equipment used to provide the services at its discretion, provided that no impairment of the services is anticipated.

2.4 Services provided by the Contractor which are used by the Client beyond the agreed scope of services shall be remunerated by the Client according to the actual personnel and material expenses at the Contractor’s current rates. This includes, in particular, services provided outside the Contractor’s standard business hours, analyzing and eliminating faults and errors caused by improper handling or operation by the Client or other circumstances for which the Contractor is not responsible. Similarly, training services are not typically included in the scope of services and require a separate agreement.

2.5 If the Contractor arranges third-party services at the request of the Client, these contracts shall be concluded exclusively between the Client and the third party in accordance with the third party’s respective terms and conditions. The Contractor is responsible only for the services it provides itself.

2.6 Please note that a barrier-free design as defined by the Austrian Disability Equality Act (Bundes-Behindertengleichstellungsgesetz, BGStG) is not included in the offer, unless this has been requested separately/individually by the Client. If no barrier-free design has been agreed, the Client is responsible for checking whether the service is permissible in accordance with the Disability Equality Act.

3.Obligations of the Client to provide assistance and resources

3.1 The Client undertakes to support all measures that are required for the provision of the services by the Contractor. The Client also undertakes to carry out all measures that are necessary to fulfill the contract and that are not included in the Contractor’s scope of services.

3.2 If the services are provided on site at the Client’s premises, the Client shall provide the network components, connections, supply current including peak voltage equalization, emergency power supplies, equipment storage areas, workstations and infrastructure required for the provision of the services by the Contractor free of charge to the extent and quality required (e.g., air conditioning). The Client shall in all cases be responsible for fulfilling the conditions required by the manufacturer for the operation of the hardware. The Client shall also be responsible for ensuring that the premises and building are secure, including providing protection against water, fire and unauthorized access. The Client shall be responsible for special security precautions (e.g, security cells) on its premises. The Client shall not be entitled to impose directives of any kind on the Contractor’s employees and shall submit all requests relating to the provision of services exclusively to the contact person designated by the Contractor.

3.3 The Client shall provide all the information, data and documents required by the Contractor for the execution of the order in the form requested by the Contractor on the agreed dates and at its own expense and shall provide the Contractor with support in analyzing problems and eliminating faults, coordinating processing orders and aligning the services on request. No changes in the Client’s work processes that may cause changes in the services to be provided by the Contractor for the Client may be made without prior discussion with the Contractor with regard to their technical and commercial implications.

3.4 The Client shall provide a network connection at its own risk and expense unless this is expressly included in the Contractor’s scope of services.

3.5 The Client is under obligation to treat the passwords and log-ins required to use the Contractor’s services as confidential.

3.6 The Client shall store a copy of the data and information provided to the Contractor so that it can be reconstructed at any time in the event of loss or damage.

3.7 The Client shall perform all its cooperation obligations in a timely manner so that the Contractor is not impeded in the provision of the services. The Client shall ensure that the Contractor and/or the third parties commissioned by the Contractor have such access to the Client’s premises as is necessary for the provision of the services. The Client is responsible for ensuring that the employees of its affiliated companies involved in the fulfillment of the contract or third parties commissioned by it provide appropriate support in the fulfillment of the contract.

3.8 If the Client does not fulfill its obligations to cooperate on the agreed dates or to the agreed extent, the services provided by the Contractor shall nevertheless be deemed to have been provided in accordance with the contract despite possible restrictions. The timelines for the provision of services by the Contractor shall then be deferred to a reasonable extent. The Client shall remunerate any additional hours and/or costs incurred by the Contractor resulting from the Client’s failure to fulfill its obligations separately at the Contractor’s applicable rates.

3.9 The Client shall ensure that its employees and any third parties attributable to it exercise due care in handling the equipment and technology deployed by the Contractor and any assets provided to it; the Client is liable to the Contractor for any damage.

3.10. The Client shall provide any necessary resources and assistance free of charge, unless otherwise agreed.

4. Change Requests

4.1 Both contracting parties may request changes to the scope of services at any time (“Change Request”). A Change Request must, however, contain a precise description of the change, the reasons for the change, as well as the impact on scheduling and costs, in order to enable the party to whom the Change Request is addressed to evaluate it properly. Change Requests do not become binding until they have been legally signed by both parties.

5. Service defects

5.1 The Contractor undertakes to provide the services in accordance with the contract. If the Contractor does not provide the services at the scheduled times or performs them poorly, i.e, with significant deviations from the agreed quality standards, the Contractor shall be obliged to begin remedying the defects immediately and to provide its services properly and free of defects within a reasonable period of time by repeating the affected services or carrying out the necessary remedial work at its discretion.

5.2 If the defect is attributable to the provision of resources or assistance by the Client or to a breach of the Client’s obligations pursuant to section 3.9, any obligation to remedy the defect free of charge shall be excluded. In such cases, the services provided by the Contractor shall be deemed to have been provided in accordance with the contract despite possible restrictions. The Contractor shall undertake to remedy the defect at the Client’s expense if requested to do so by the Client.

5.3 The Client shall support the Contractor in remedying defects and provide all necessary information. The Client shall notify the Contractor of any defects immediately in writing or by email. The Client shall bear any additional costs for the rectification of defects caused by late notification.

5.4 The provisions of this clause shall apply mutatis mutandis to any deliveries of hardware or software products from the Contractor to the Client. The warranty period for such deliveries is six months from the time of acceptance. Section 924 of the Austrian General Civil Code ( (ABGB) “Presumption of defectiveness” is excluded by mutual agreement. For any third-party hardware or software products provided to the Client by the Contractor, the respective warranty conditions of the manufacturer of these products shall take precedence over the provisions of this clause. The Contractor shall retain title to all hardware and software products supplied by it until payment has been made in full.

6. Contractual penalty

6.1 The Contractor is under obligation to comply with the degrees of fulfillment and/or recovery times specified in the SLA in order of priority. If the Contractor exceeds the recovery time limits specified in the SLA, the Contractor shall pay penalty fees to the Client per hour or part thereof until actual recovery (fulfillment) in accordance with the SLA:

The above penalties per year are capped at 10% of the total annual fee. The assertion of any further claims for damages is excluded, except in cases of intent or gross negligence.

If a delay resulting in a penalty should occur, the Contractor must be notified immediately in writing.

7. Liability

7.1 The Contractor shall only be liable to the Client for damages for which it is demonstrably at fault in the event of gross negligence. This shall also apply mutatis mutandis to damages attributable to third parties engaged by the Contractor. The Contractor shall be liable without limitation in the event of personal injury for which it is responsible.

7.2 Liability for indirect damages – such as loss of profit, costs associated with business interruptions, loss of data or third-party claims – is expressly excluded.

7.3 Claims for damages expire in accordance with the statutory limitations, but no later than one year after the damage and the damaging party become known.

7.4 If the Contractor performs the work with the assistance of third parties and warranty and/or liability claims against these third parties arise in this context, the Contractor shall assign such claims to the Client.

7.5 If data backup is expressly agreed upon as a service, liability for the loss of data is – in derogation of section 8.2 – not excluded, but is however capped at a maximum of 10% of the value of the order per claim, up to a maximum of 15,000 EUR. Warranty claims and claims for damages on the part of the Client that go beyond those specified in this contract are excluded, irrespective of the legal basis.

8. Remuneration

8.1 The remuneration to be paid by the Client and the payment conditions are set out in the contract. The statutory value added tax shall be charged in addition.

8.2 Travel time of the Contractor’s employees shall be considered working time and shall be remunerated at the agreed hourly rate. The aforementioned rates shall change in accordance with the price escalation clause in section 9.5. In addition, travel expenses and any accommodation costs incurred shall be reimbursed by the Client according to actual expenditure. Travel expenses and incidental expenses shall be reimbursed subject to submission of receipts (copies).

8.3 The Contractor is entitled at any time to make the provision of services dependent on the provision of down payments or other securities by the Client in a reasonable amount.

8.4 Unless otherwise contractually agreed, one-off payments shall be invoiced after the service has been provided, and ongoing payments shall be invoiced quarterly in advance. Invoices issued by the Contractor, including VAT, are payable within 30 days of receipt of the invoice without any deductions and free of charges. The payment conditions defined for the total order shall also apply mutatis mutandis to partial invoices. A payment shall be deemed to have been made on the day on which the Contractor can use the funds. If the Client defaults on its payments, the Contractor shall be entitled to charge the statutory default interest and all the costs incurred in recovering the debt. If the Client delays payment for more than 14 days, the Contractor shall be entitled to suspend all services. The Contractor shall also be entitled to demand immediate payment for all services already rendered, irrespective of any payment deadlines.

8.5 Ongoing remuneration is based on the salary of an employee of companies in the field of automatic data processing and information technology services in the experience level for special activities (ST2), as defined in the relevant collective agreement.

8.6 The Client shall only be permitted to offset a counterclaim that has been recognized by the Contractor or has been declared legally binding. The Client has no right of retention.

8.7 All tax liabilities arising from the contractual relationship, such as legal transaction fees or withholding taxes, shall be borne by the Client.

8.8 In the event that the Contractor is held liable for such charges, the Client shall indemnify and hold the Contractor harmless.

9. Force majeure

9.1 If and for as long as obligations cannot be fulfilled on time or properly as a result of force majeure, such as war, terrorism, natural disasters, fire, industrial action, lockouts, embargos, sovereign intervention, power supply failures, failure of means of transportation, failure of telecommunications networks or data lines, changes in the law affecting the services after conclusion of the contract or other non-availability of products, this shall not constitute a breach of contract.

10. Rights of use to software products and documents

10.1 If the Contractor provides the Client with software products or enables the Client to use software products as part of the services, the Client shall be entitled to the non-exclusive, non-transferable, non-sublicensable right, limited to the term of the contract, to use the software products in unmodified form.

10.2 If software products are used in a network, a license is required for each simultaneous user. If software products are used on “stand-alone PCs,” a license is required for each PC.

10.3 If the Contractor provides the Client with third-party software products, the respective license terms of the manufacturer of these software products shall take precedence over the provisions of this section.

10.4 In the absence of a separate agreement, no further rights to software products shall be transferred to the Client.

10.5 This does not affect the rights of the Client pursuant to sections 40(d), 40(e) of the Austrian Copyright Act (UrhG).

10.6 None of the documents provided to the Client by the Contractor, in particular the documentation for software products, may be reproduced or distributed in any way, whether for a fee or free of charge.

11. Term of the contract

11.1 These GTC enter into force as soon as the Client has given its consent on the Contractor’s website and apply for an indefinite period. The contract may be terminated by either contracting party by registered letter subject to a notice period of 6 months, but at the earliest at the end of the minimum term agreed in the contract or SLA.

11.2 Each contracting party has the right to terminate the contract prematurely and without notice by registered letter for good cause. Good cause shall be deemed to exist in particular if the other contracting party breaches material obligations arising from the contract despite receiving a written warning and threat of termination or if bankruptcy or other insolvency proceedings are filed against the other contracting party, opened or rejected for lack of assets or if the performance of the other contracting party is hindered or prevented for a period of more than six months as a result of force majeure.

11.3 The Contractor is also entitled to terminate the contract prematurely for good cause if essential parameters of the provision of services have changed and the Contractor can no longer be reasonably expected to continue the services from an economic point of view for this reason.

11.4 Upon termination of the contract, the Client shall immediately return to the Contractor all documents and documentation provided to it by the Contractor.

11.5 Upon request, the Contractor shall support the Client at the end of the contract in retransferring the services to the Client or a third party named by the Client at the Contractor’s applicable hourly rates.

12. Data protection / confidentiality

12.1 The Contractor shall comply with the provisions of the Austrian Data Protection Act, the EU-GDPR and the Austrian Telecommunications Act when handling personal data and shall implement the necessary technical and organizational measures for data protection within the Contractor’s area of responsibility.

In particular, the Contractor undertakes to ensure that its employees comply with the provisions of section 6 of the Data Protection Act.

12.2 The Privacy Policy within the meaning of Art. 13 and 14 EU-GDPR and the Processor Agreement within the meaning of Art 28 (3) EU-GDPR shall be attached to the order.

12.3 Contracted processing pursuant to Art. 28 EU-GDPR

12.3.1 The orders cover the administration of documents and training certificates of trained care workers for nostrification in an EU member state. The subject matter of the orders is described and defined in more detail in the SLA Service Level Agreement.

12.3.2 The following data categories are processed: contact data, personal data, order data, training data, contract data, billing data.

12.3.3 The following categories of data subjects are subject to processing: carers who are seeking nostrification of their training, agency staff preparing the nostrification, employees of government agencies processing the nostrification, employees of care homes and hospitals seeking to recruit new carers.

12.3.4 The agreement is concluded for an indefinite period and can be terminated by either party subject to a notice period of 6 months. The right of extraordinary termination for good cause remains unaffected.

12.3.5. OBLIGATIONS OF THE CONTRACTOR

(1) The Contractor shall undertake to process data and processing results exclusively within the scope of the Client’s written orders. If the Contractor receives an order from a government authority to disclose the Client’s data, the Contractor shall – to the extent permitted by law – immediately inform the Client of this and direct the government authority to the Client. Similarly, data processing for the Contractor’s own purposes requires a written order.

(2) The Contractor hereby declares with legally binding effect that it has obligated all persons commissioned with data processing to maintain confidentiality before commencing their work or that they are subject to an appropriate legal obligation to maintain confidentiality. The confidentiality obligation of the persons entrusted with data processing in particular shall remain in force even after their employment has ended and they have left the Contractor’s company.

(3) The Contractor hereby declares with legally binding effect that it has taken all necessary measures to ensure the security of processing in accordance with Art. 32 EU-GDPR.

(4) The Contractor shall take the technical and organizational measures necessary to enable the Client to fulfill the rights of the data subject under Chapter III of the EU-GDPR (information, access, rectification and erasure, data portability, objection, and automated decision-making in individual cases) at any time within the statutory time limits and shall provide the Client with all information necessary for this

purpose. If a data subject application is addressed to the Contractor and the Contractor becomes aware that the applicant mistakenly believes that the Contractor is the Client of the data processing operated by the Contractor, the Contractor must forward the request to the Client without delay and inform the applicant of this.

(5) The Contractor shall assist the Client in complying with its obligations under Art. 32 to 36 EU-GDPR (data security measures, reporting of personal data breaches to the supervisory authority, notification of the person affected by a personal data breach, data protection impact assessment, prior consultation).

(6) The Contractor is advised that it must set up a processing directory in accordance with Art. 30 EU-GDPR for this commissioned processing.

(7) The Client or its authorized third parties shall be granted the right to inspect and monitor the data processing facilities relating to the processing of the data provided by the Client at any time. The Contractor shall undertake to provide the Client with the information necessary to monitor compliance with the obligations set out in this agreement.

(8) After termination of this agreement, the Contractor is under obligation to destroy all processing results and documents containing data on its behalf. If the Contractor processes the data in a specific technical format, it is obliged to return the data after termination of this agreement either in this format or, if requested by the Client, in the format in which it received the data from the Client or in another common format.

(9) The Contractor shall inform the Client immediately if it believes that an instruction from the Client violates data protection regulations of the European Union or its Member States.

12.3.6 DATA PROCESSING LOCATION

Data processing activities are carried out exclusively within the EU.

12.3.7. SUB-PROCESSORS

The Contractor may commission sub-processors. It must inform the Client of its intention to commission a sub-processor in good time so that the Client can prohibit this if necessary.

The Contractor shall conclude the necessary agreements as defined in Art. 28 (4) EU-GDPR with the sub-processor. In doing so, it must ensure that the sub-processor enters into the same obligations that are incumbent on the Contractor on the basis of this Agreement.

If the sub-processor fails to comply with its data protection obligations, the Contractor shall be liable to the Client for compliance with the obligations of the sub-processor.

13. Confidentiality

13.1 Each contracting party warrants to the other that it shall treat all trade secrets disclosed to it by the other party in connection with this contract and its performance as such and shall not disclose them to third parties, unless they are generally known, or were already known to the recipient previously with no confidentiality obligation, or were disclosed or provided to the recipient by a third party with no confidentiality obligation, or were demonstrably developed independently by the recipient, or their disclosure is required by a legally binding official or judicial decision.

13.2 The subcontractors assigned by the Contractor shall not be deemed third parties insofar as they are subject to a confidentiality obligation corresponding to the content of this clause.

14. Other provisions

14.1 The contracting parties shall name competent and informed employees in the contract who are authorized to make or initiate the necessary decisions.

14.2 The Client shall not seek to recruit employees assigned by the Contractor to provide the services itself or via third parties during the term of the contract and for a period of one year after the end of the contract. The Client undertakes to pay the Contractor a contractual penalty in the amount of twelve times the gross monthly salary that the employee concerned last received from the Contractor for each instance of non-compliance, but at least the salary of an employee of companies in the field of automatic data processing and information technology services in the experience level for special activities (ST2), as defined in the relevant collective agreement.

14.3 Any amendments and additions to the contract must be made in writing. This also applies to the waiver of the written form requirement.

14.4 In the event that one or more provisions of the contract are or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid provision that most closely approximates the economic purpose of the invalid or unenforceable clause.

14.5 Any transfer of rights or obligations arising from the contract requires the prior written consent of the other contracting party. However, the Contractor is entitled to transfer the contract to a company affiliated with the Contractor under corporate law without the Client’s consent.

14.6 Unless otherwise agreed, the statutory provisions applicable between entrepreneurs shall apply exclusively in accordance with Austrian law, even if the order is carried out abroad.

14.7 Any disputes shall be subject exclusively to the local jurisdiction of the competent court in Vienna, Austria.

15. Mediation clause

15.1 In the event that a dispute arising from this contract cannot be settled amicably, the contracting parties mutually agree to consult registered mediators (ZivMediatG) specializing in business mediation from the list of the Austrian Ministry of Justice in order to settle the conflict out of court.

15.2 If no agreement on the choice of business mediators or on the content of the negotiations can be reached,

legal action will be taken no earlier than one month after the failure of the negotiations.

15.3 In the event that mediation proceedings do not take place or are terminated, Austrian law shall apply in any court proceedings that may be instituted.

15.4 All necessary expenses incurred as a result of prior mediation, in particular those for a legal advisor, can be claimed as “pre-litigation costs” in court or arbitration proceedings as agreed.