General Terms and Conditions (GTC) for Contracts Concluded between Ocean Maps GmbH and Contractors
PART 1 – GENERAL TERMS AND CONDITIONS FOR DIVE MAPS
The products to be purchased and the services to be rendered by the Contract Partner in accordance with the order form are subject to the following General Terms and Conditions (hereinafter “GTC”) of Ocean Maps GmbH (hereinafter the “Company”).
The GTC comprise part of any order form submitted to the Company and govern the business relationship between the Company and the Contract Partner, on the one hand in connection with the transfer and granting of the right to use the “SCUBA DIVING BY OCEAN MAPS” software (hereinafter the “Software”) developed by the Company as well as the marketing services to be rendered for the software by the Contract Partner in return (hereinafter “Cooperation Partnership”), and on the other in connection with the rendering of agency services for the sale of the software to final customers (hereinafter “Sales Partnership”). Part 1 of the GTC (“Cooperation”) applies solely to the Cooperation Partnership; Part 2 of the GTC (“Public presentations”) applies to Contract Partners who intend to use the software as described therein; Part 3 of the GTC (“Sales”) applies solely to the Sales Partnership. The remaining provisions of these GTC, especially Part 4, apply to both Sales and Cooperation Partnerships.
The version applicable at the time the contract is concluded shall be the definitive version. By placing an order, the Contract Partner expressly acknowledges the validity of these GTC. Deviations from the GTC shall apply only if they have been agreed by the Contracting Parties in writing. The general terms and conditions of the Contract Partner shall not apply even if the Company does not explicitly reject them. Acts in performance by the Company shall not represent any approval of the general terms and conditions of the Contract Partner.
The Company is only prepared to conclude contracts in accordance with these GTC, which shall also apply to further business with the Contract Partner without the need for further reference. The application of deviating conditions requires an express written agreement. Should individual conditions be modified in writing, all unmodified conditions shall remaining binding on both parties. Modifications shall apply only to the company for which they have been agreed. Verbal agreements shall only be binding upon the Company once they have been confirmed by the Company in writing.
1. USE BY THE CONTRACT PARNTER
(1) Pursuant to point 1 (2) to (4) and point 2, the Contract Partner is authorised to use the software for its own purposes, limited to the regional dive spots allocated to it according to the order form, and in particular for presentations to individual customers on a computer and other activities commonly undertaken within the scope of the ordinary course of business of a dive base, at the location specified on the order form and on the servers installed at that location (hereinafter the “Cooperation”). In return, the Contract Partner undertakes to purchase the services of the Company and to use the software pursuant to point 3 of these GTC.
(2) The Contract Partner has the right to activate the software in a server version for office access as well as for individual users who are located at the location during normal dive base operations for the Contract Partner and who act on behalf of the Contract Partner.
(3) There are two ways for the software to be activated for the Contract Partner for the corresponding number of dive sites indicated on the order form: either the Contract Partner creates the accounts required for the respective users via the website of the Company itself and sends the Company a list of the number and names of the respective users, or the Contract Partner sends the Company the data required to register the individual users by completing the relevant fields on the order form. The Contract Partner shall additionally be provided with a licence key which determines the number of licences needed by the Contract Partner for server and client software. If the required number of licences changes, the licence key will be adjusted accordingly. The Contractor is solely responsible for the software being used by the users as intended, both in accordance with this Contract and within the scope of the normal activities of the Contract Partner.
(4) The Contract Partner and the users specified by the Contract Partner are featured and made visible on the website of the Company.
(5) Each time the software is used, the Contract Partner must clearly identify such use with the name of the Company and make active reference to the fact that the software is a product owned by the Company. The Company’s logo must also always be clearly displayed.
2. RIGHTS OF USE / INTELLECTUAL PROPERTY RIGHTS
(1) Upon concluding the contract, the Contract Partner shall be granted the non-exclusive limited right to use the software free of charge for the duration of the contractual relationship and for the purposes defined in these GTC. The software may only be used in the form provided by the Company and never in a modified, translated, edited or redesigned form. The Contract Partner is not entitled to obtain, use or inspect the software’s source code or development documentation.
(2) The Contract Partner may use the software only for the purposes of its business activity in the area of the scope of use described in point 1 regarding the rendering of the services it offers.
(3) The Contract Partner shall not itself, or through a third party, modify, decode or decompile the object code or manufacture/attempt to manufacture the source code through reverse engineering or in any other way, with the exception of instances in which this is necessary for creating interoperability or for ensuring debugging the troubleshooting pursuant to Art. 40d Austrian Copyright Act. Prior to decompiling the software, the Contract Partner shall write to the Company in good time requesting the Company to provide the information and documentation necessary for creating interoperability. The Contract Partner is authorised to decompile the software in the sense mentioned above only if the request to do so remains unsuccessful, despite the setting of a grace period in writing.
(4) The Contract Partner is not authorised to sell, hire out or transfer the software or make it accessible to third parties in any other way unless agreed otherwise in accordance with the provisions of Part 2 of these GTC. Furthermore, the Contract Partner is not authorised to grant third parties rights of use, permissions to use, sub-licences or other rights of use over the software. The duplication, dissemination and making available of the software are also prohibited unless expressly permitted.
(5) The Contract Partner is not permitted to develop or program upgrades or enhancements of the software without the consent of the Company. The Contract Partner is also not permitted to emulate the software for the development and manufacture of its own product, or to develop a similar computer program or another similar technical application on the basis of the software, or to use the software in any way whatsoever as a template or suggestion for the development of similar computer programs, apps or other technical solutions.
(6) The Contract Partner is required to prevent the unlawful use of the software and any other unauthorised access to the software by customers, business partners or other third parties by taking suitable technical, organisational or structural precautions and technical protective measures. To this end, the Contract Partner shall, inter alia, require the users of the software pursuant to point 1 (3) to use the software only in the manner deemed necessary in accordance with the scope of use pursuant to point 1 of these GTC and to ensure that the software is also used as intended by the users with due regard for the rights of the Company.
3. PUBLICITY
(1) Within the scope of the Cooperation, both the Contract Partner and the Company have the right to publicise the Cooperation in all media. Information expressly identified as confidential is excluded from publication.
(2) The Contract Partner undertakes to use the documents, texts, logos and materials made available by the Company for the purpose of advertising the Cooperation and the services of the Company. However, in doing so, no publications which could harm the Company shall be actively released in the media. The materials made available by the Company for publication shall be transmitted by email or placed on the Company’s website for downloading. The marketing materials shall be clearly identified as such. The use of other materials or materials created by the Contract Partner is not permitted, unless permission has been granted by the Company. Such permission must be given in writing. The Contract Partner is responsible for bearing the costs of the respective media, advertisements, etc. Exceptions must be agreed with the Company in writing.
(3) The Contract Partner can be presented on the websites and software of the Company. The content and layout shall be specified by the Company. The Company is not required to use or make public the information, texts, logos or other documents provided by the Contract Partner.
(4) The Contract Partner assures the Company that the contents created or made available by it, such as texts, graphics, concepts, photographs and the like, shall not infringe any third-party rights, in particular trademarks, copyright or other rights of utilisation, or statutory provisions, such as, in particular, the E-Commerce Act, and shall indemnify and hold the Company entirely harmless in this respect.
(5) If the Contract Partner has its own website, it shall undertake to make the Cooperation clearly visible on its homepage and to use the information and documents specified by the Company for this purpose.
(6) If the Contract Partner has its own newsletter, it shall undertake to announce and promote the Cooperation therein. The contents of the newsletter shall be developed in conjunction with the Company. The information and documents provided by the Company shall be used by the Contract Partner for this purpose.
(7) The Contract Partner undertakes to clearly affix or lay out the posters, flyers, vouchers and stickers provided by the Company for the purpose to or on its business premises. In addition, the provided documents shall also be affixed to or laid out on the boats used by the Contract Partner for the purpose of identifying the Cooperation.
(8) The Contract Partner shall use only the documents provided by the Company.
4. USE OF MAPS
The software provided by the Company within the scope of the Cooperation and the maps it contains may only be used in the form specified by the Company for the purposes defined in these GTC. The duplication, dissemination, transmission, public playback or other provision of the maps in whole or a significant part thereof, regardless of whether in analogue or digital form, is prohibited unless agreed otherwise in accordance with the provisions of Part 2 of these GTC.
5. FEEDBACK
Within the scope of the Cooperation, the Contract Partner undertakes to send the Company written feedback on the market situation and market development at the end of each calendar month. In particular, feedback should be sent on the use of the software and map materials, especially on their usefulness for operations in dive bases, so that the Company is in a position to make improvements and optimWithin the scope of the Cooperation, the Contract Partner undertakes to send the Company written feedback on the market situation and market development at the end of each calendar month. In particular, feedback should be sent on the use of the software and map materials, especially on their usefulness for operations in dive bases, so that the Company is in a position to make improvements and optimisations. If the Contract Partner has also concluded a distribution agreement, it shall additionally report on sales activities in its business and in respect of the use of software and map materials, including their usability by customers.isations. If the Contract Partner has also concluded a distribution agreement, it shall additionally report on sales activities in its business and in respect of the use of software and map materials, including their usability by customers.
6. LIABILITY
(1) As the software is provided free of charge, the Company precludes any warranty where legally permitted, including but not limited to any liability for the assurance of conformity to market conditions, fitness for a specific purpose and the presence of specific functions. With regard to the software, no warranty is made with respect to infringements, ownership, or freedom from third-party intervention. The full risk regarding the quality and performance of the software rests with the Contract Partner. The Contract Partner is solely responsible for ensuring that the software meets specific needs and requirements. The Company does not accept any responsibility for the choice of software or the results that can be achieved with the software or the objects used in conjunction with it.
(2) The Company does not provide any warranty for faults, disruption or damage caused by improper installation, failure to follow the installation instructions, improper use, infection with computer viruses, use of unsuitable organisational material and data carriers, or abnormal operating conditions.
(3) In particular, the Company does not provide any warranty for a certain level of marketability, adequacy or fitness of the software for a specific purpose. Whether or not the software is suitable for customer-specific applications is therefore solely the responsibility of the dive base. The virtual underwater maps provided within the scope of the software’s agreed scope of performance have been developed on the basis of a state-of-the-art underwater mapping method. Underwater regions are constantly changing due to a wide range of factors. The Company does not provide any warranty that the underwater regions and maps shown in the software correspond to the actual conditions in the area.
(4) Claims brought under the Product Liability Act are precluded where legally permitted.
7. EXTENDED USE BY THE CONTRACT PARTNER
(1) The Contract Partner is authorised to make use of the software pursuant to point 8 of this Part 2 of the GTC only at the dive spot specified on the order form and only with the equipment and locations specified therein in return for payment of a licence fee.
(2) To this end, the Contract Partner shall specify the number of screens and other receiving devices required for a calendar year on the order form, including a description of these devices and their locations.
(3) Before the start of and during each dive briefing (hereinafter referred to as “Briefing”), the Contract Partner must make active reference to the fact that the software is a product owned by the Company. The Company’s logo must also always be clearly displayed throughout the Briefing.
8. EXTENDED RIGHTS OF USE
(1) Upon concluding a contract, the Contract Partner shall receive the paid, non-exclusive, limited right to public playback and public performance of the software, including the screenshots and in particular the digital maps displayed when running the software, for the purposes defined in these GTC and for the duration of the contractual relationship; the content covered by this license is limited to Briefings which the Cooperation Partner holds within the scope of its usual business activity as well as locally on boats and in other presentation rooms in which the devices described on the order form are set up and which lie within the dive spot allocated to the Cooperation Partner.
(2) For use pursuant to paragraph (1) of this provision, the Cooperation Partner shall pay a licence fee. The amount of the licence fee to be paid in advance for a calendar year depends on the number of screens and other receiving devices via which the software and the digital maps are to be used for the Briefings. This number must be specified in the order form. The annual licence fee per screen is stipulated on the order form regardless of whether and how many Briefings are organised each year.
(3) The licence fee (plus statutory VAT) for the current calendar year shall be paid within 14 days of contract conclusion, and for subsequent years by not later than 10 January of the respective calendar year, in each case following delivery of an invoice by the Company.
(4) The Company reserves the right to adjust the licence fee at any time and, in particular, to increase it. Such changes to the licence fee shall take effect from the calendar year following the adjustment and shall not, therefore, have any effect on the current calendar year. Once the adjustment comes into effect, use of the software pursuant to Part 2 is permitted only following payment of the adjusted licence fee.
9. SALE OF DIVING MAPS
(1) The company also offers maps and map sections in analogue form. To order analogue dive maps or dive cards, the specific name of the card, the desired number and the size must be specified on the order form. The prices for obtaining analogue maps, if available, are based on the prices stated on the order form, otherwise they must be obtained from the Company.
(2) The contractual partner is only entitled to resell the analogue maps and map sections to customers. However, all other exploitation rights to the maps and map sections remain with the Company. The contractual partner is therefore in particular not entitled to reproduce, edit, publicly reproduce the maps or map sections, to make them available to the public and, in particular, not to publish them in print or online media.
(3) The contractual partner is free to determine the sales prices. The Company shall disclose to the Company separately non-binding recommended sales prices, which are based on market custom, whereby the Company may adjust these prices at any time subject to a notice period of 30 days.
PART 2 – GENERAL TERMS AND CONDITIONS FOR ENGINEERING COMPANIES IN AUSTRIA - B2B (BETWEEN COMPANIES)
The " General terms and conditions for engineering companies in Austria – B2B (between companie " as published by the Association of Engineering Offices apply
(https://www.ingenieurbueros.at/verband/de/das-ingenieurbuero/branchenrecht/allgemeine-geschaeftsbedingungen):
1. VALIDITY OF GENERAL TERMS AND CONDITIONS AND DEVIATIONS
(1) The following general terms and conditions shall apply for all current and future contracts between the client in its capacity as an operator and the engineering company.
(2) Deviations from these conditions, and in particular the conditions of the client, shall apply only if the engineering company has expressly acknowledged and confirmed them in writing.
2. QUOTATIONS, SUBSIDIARY AGREEMENTS
(1) Unless otherwise indicated, the quotations from the engineering company shall be non-binding with regard to all indicated details, including the fee.
(2) If a contract confirmation from the engineering company contains modifications to the contract, these shall be considered approved by the client unless the client promptly indicates otherwise in writing.
(3) Agreements must in principle be in writing.
3. AWARDING OF CONTRACT
(1) The nature and scope of the agreed service shall be based on the contract, power of attorney and these general terms and conditions.
(2) Modifications and additions to the contract shall require written confirmation by the engineering company in order to become part of the contractual relationship.
(3) The engineering company shall fulfil the contract awarded to it properly and in accordance with generally recognized good engineering practice and the principles of sound financial management.
(4) The engineering company may enlist the services of other appropriately authorized parties to fulfil the contract and place orders with them on behalf of and for the account of the client. The engineering company is however obliged to inform the client of this intention in writing and grant the client the option of rejecting this order placement with third parties within 10 days.
(5) The engineering company may enlist the services of other appropriately authorized parties as sub-planners and place orders with them on behalf of and for the account of the engineering company. The engineering company shall, however, undertake to inform the client in writing if it intends to have orders fulfilled by a subplanner and grant the client the option of rejecting this order placed with the sub-planner within one week; in that case, the engineering company shall fulfil the order itself.
4.) WARRANTY AND COMPENSATION OF DAMAGE
(1) Warranty claims may only be lodged after notification of deficiencies. These claims must be submitted exclusively by registered letter within 14 days of the provision of the service or part service.
(2) Claims to cancellation of sale and price reductions shall be excluded. Claims for improvement and/or amendment of the deficiency must be met by the engineering company within a reasonable period; this period should in principle be one third of the agreed period for fulfilment of the service. A claim for damage caused by delay cannot be invoked within this period.
(3) The engineering company shall provide its services with the care expected of a specialist (Austrian General Civil Code [AGBG], Section 1299).
(4) If in breach of its contractual obligations the engineering company is guilty of causing damage to the client, its liability to make good the damage caused – unless otherwise arranged in individual cases – by slight negligence shall be limited as follows:
i) for cancellation of sale and personal injury, no limitation,
ii) the following limitations shall apply in all other cases:
– in the case of a contract amount up to 250,000.00 euros: a maximum 12,500.00 euros;
– bei einer Auftragssumme über 250.000,00 Euro: 5 % der Auftragssumme, jedoch höchstens 750.000,00 Euro.
iii) Liability for consequential damages and lost income shall also be excluded in the case of gross negligence unless otherwise arranged in individual cases.
5. WITHDRAWAL FROM CONTRACT
(1) Withdrawal from the contract shall only be permitted for cause.
(2) In the event of a delay in the engineering company supplying a service, it shall only be possible for the client to withdraw after a reasonable period of grace has been set; this period of grace must be set by means of a registered letter.
(3) In the event of a delay in the client providing a partial service or an agreed collaboration activity which makes the fulfilment of the contract by the engineering company impossible or significantly impedes it, the engineering company shall be entitled to withdraw from the contract.
(4) If the engineering company is entitled to withdraw from the contract, it shall retain the right to claim the entire agreed fee, including in the case of unjustified withdrawal by the client. ABGB, Section 1168, also applies; in the case of justified withdrawal on the part of the client, the client must remunerate the engineering company for the services provided. WKÖ AUSTRIAN FEDERAL ECONOMIC CHAMBER AUSTRIAN ASSOCIATION OF CONSULTING ENGINEERS Issued by the Fachverband Ingenieurbüros (Austrian Association of Consulting Engineers), Schaumburgergasse 20/1, 1040 Vienna, Austria Tel: 05 90900 3248; Email: ftbi@wko.at; http://www.ingenieurbueros.at
6. FEES, SCOPE OF SERVICES
(1) Unless otherwise indicated, all fees shall be in euros.
(2) The VAT (turnover tax) shall not be included in the fee amounts; this shall be paid separately by the client.
(3) Compensation with counter-claims, for whatever reason, shall be inadmissible.
(4) Unless otherwise agreed, the non-binding calculation recommendations from the Austrian Association of Consulting Engineers shall be part of the contract content.
(5) Unless expressly agreed to the contrary, payment must be made without deductions within 30 days of invoice submission. This payment shall be made into the account specified by the engineering company at a bank with a branch within Austria. In the event of a delay in payment, interest in the amount of 9.2% per annum above the base interest rate of the ECB plus the cost of reminders shall be paid.
7. PLACE OF FULFILMENT
The place of fulfilment for all company services shall be the registered office of the engineering company.
8. CONFIDENTIALITY
(1) The engineering company shall be obliged to maintain confidentiality regarding all information provided by the client.
(2) The engineering company shall also be obliged to keep its planning activities confidential if and so long as the client has a justified interest in this confidentiality. Upon fulfilment of the contract, the engineering company shall be entitled to make public for advertising purposes, in whole or in part, the work specified in the contract, unless otherwise contractually agreed.
9. PROTECTION OF PLANS
(1) The engineering company shall retain all rights and uses regarding the documents created by it (especially plans, brochures and technical documents).
(2) Any use (in particular processing, execution, reproduction, distribution, public display, provision) of the documents or parts thereof shall only be permitted with the express approval of the engineering company. All documents must therefore be used only for the purposes expressly determined when the order is placed or through a subsequent agreement.
(3) The engineering company shall be entitled and the client obliged to indicate the name (company and trade name) of the engineering company in publications and announcements about the project.
(4) In the event of the contravention of these provisions for protecting documents, the engineering company may claim a contractual penalty in the amount of twice the appropriate compensation for unauthorized usage, whereby the right to a claim an additional compensation for damages is retained. This contractual penalty shall not be liable to a judicial reduction of compensation. The client shall be responsible for furnishing proof that it has not used the engineering company’s documents.
10. GOVERNING LAW, PLACE OF JURISDICTION
(1) Austrian law shall apply exclusively for contracts between the client and the engineering company.
(2) It is agreed that all disputes arising from this contract shall be the responsibility of the competent court at the location of the registered offices of the engineering company.
PART 3 - GENERAL; PROVISIONS
1. PAYMENT TERMS
(1) Once an order has been accepted by the Company, the Contracting Party shall pay the entire costs set forth herein in full, unless otherwise specified below or in Ocean Maps GmbH's offer. All payments due hereunder are in euros excluding VAT, unless otherwise stated in the offer or in the order form.
(2) If payment is not made on time, the Company shall have the right to charge statutory default interest on the unpaid balance from the due date. The Company shall also be entitled to offset the dunning and collection fees necessary for the appropriate collection and recovery of the claim in accordance with the applicable fee schedule of the collection agencies or the applicable lawyer's tariff. This does not preclude the assertion of further damages.
(3) The contractual partner is generally not entitled to withhold or offset payments due to counterclaims or warranty claims, unless expressly provided otherwise in detail.
2. OBLIGATION OF CONFIDENTIALITY
(1) All information, documents, communications, information and data that are given or made available or otherwise made accessible between the contracting parties and their authorized representatives or other persons (auditors, lawyers, business or financial consultants), whether in writing, orally or by means of electronic data transmission ("confidential information"), shall be treated as strictly confidential and kept secret.
(2) The validity of this confidentiality obligation shall continue to apply for an unlimited period of time even after the termination of the contractual relationship.
3. CONTRACTUAL PENALTY
(1) Any duplication, modification or use of the software or maps as a whole or individual elements thereof in a framework other than that specified by the Company in these GTC or in the offer is prohibited to the contractual partner and the latter is obliged to ensure that this prohibition is not violated even when the software is used in its operation.
(2) For any violation of this provision, or any other improper use of the Cards or the Software, a contractual penalty in the amount of € 30,000 (thirty thousand) shall be payable to the Company without proof of damage and regardless of the fault of the contractual partner. This shall not affect the Company's right to claim compensation for any additional damage caused by the infringement.
4. START, DURATION, TERMINATION
(1) The contractual relationship begins on the date of confirmation of the order by the company and is concluded for a limited period of 3 years. The contractual relationship shall then be automatically extended by 1 further year, unless it is terminated in writing by one of the parties in compliance with a notice period of 3 months before the end of the contract.
(2) Each party to the contract is entitled to terminate the contractual relationship prematurely with immediate effect for good cause. The Company shall be entitled to terminate the contract for good cause, in particular in the event of conduct of the Contractual Partner in breach of contract, in the event of conduct of the Contractual Partner that is detrimental to the reputation of the Company or the Software, or in the event of a bad image of the Contractual Partner.
(3) All materials provided by the Company must be returned to the Company immediately upon termination of the Agreement. For prepaid voucher cards and analogue cards purchased by the Contracting Party, the Company will refund the purchase price upon return in intact form. Any further use of the Company's software, maps and other materials or copies thereof is prohibited after termination of the Agreement.
5. NO NON-COMPETITION CLAUSE
The contract with the contractual partner does not restrict the Company from exploiting the software without restriction and, in particular, from granting licenses to any party. In particular, the Contracting Party expressly agrees that the Company will also enter into additional cooperation agreements of any kind, and therefore also with providers of competing services and products. The company is in no way restricted in its business activities by the contractual relationship.
6. LIABILITY
(1) The liability of the Company towards the Contracting Party for damages or other disadvantages arising from or in connection with these GTC, in particular for deliveries and services in accordance with Part 1 and Part 2 of the GTC, regardless of the reason, is excluded.
(2) The Company shall only be liable to the contractual partner for the resulting damages in the event of gross negligence or intentional conduct. The Company shall not be liable to the contractual partner for loss of profit, compensation for indirect damages or consequential damages arising from or in connection with the contractual relationship.
7. FINAL PROVISIONS
(1) Changes and additions to these GTC must be made in writing; this also applies to a change in the written form requirement itself.
(2) The Company is entitled to correct obvious errors (typographical and arithmetical errors) on quotations, cost estimates, delivery notes, invoices, etc. at any time.
(3) In the event that individual provisions of these GTCs are or become invalid in whole or in part, or in the event that these GTCs contain unintentional gaps, this shall not affect the validity of the remaining provisions of these GTCs. The invalid provision shall be replaced by such a valid provision as the parties would have agreed to taking into account the purpose of these GTCs if they had been aware of the invalidity or absence of the provision in question at the time of conclusion of these GTCs.
(4) These GTCs together with Ocean Maps GmbH's written offer constitute the entire agreement between the parties and supersede all prior oral or written agreements or understandings between the parties regarding the subject matter of this agreement. It can only be amended by a document signed by both parties. The foregoing shall also apply if the prescribed written form is waived.
(5) Austrian law is applicable to this contractual relationship with the express exclusion of any conflict of law provisions.
(6) In the event of legal disputes arising from the contractual relationship in question, in particular also regarding the validity of these GTC, the parties to the contract agree on the exclusive jurisdiction of the competent court in the city of Salzburg, waiving any other ordinary place of jurisdiction.