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GENERAL TERMS AND CONDITIONS SCHINDLER IT-SOLUTIONS GMBH

Schindler IT-Solutions GmbH (‘SCHINDLER-IT’) provides deliveries and services for customers according to these General Terms and Conditions only. The General Terms and Conditions provided by the customer do not apply.

These General Terms and Conditions provided by SCHINDLER-IT consist of three parts:

Part 1: GENERAL TERMS OF DELIVERY AND SERVICE

Part 2: ADDITIONAL TERMS OF DELIVERY

Part 3: ADDITIONAL TERMS OF SERVICE

Part 1 applies to all deliveries and services of SCHINDLER-IT in general.

Part 2 applies to deliveries of SCHINDLER-IT only and Part 3 to services of SCHINDLER-IT only.

These General Terms and Conditions apply both to initial orders and all subsequent orders executed by SCHINDLER-IT and do only expire with new General Terms and Conditions of SCHINDLER-IT coming into effect (see the clause below on ‘Reserved changes in these General Terms and Conditions’).

Part 1:        GENERAL TERMS OF DELIVERY AND SERVICE

1.1.    ENTREPRENEURIAL CAPACITY OF THE CUSTOMER

These General Terms and Conditions govern all deliveries and services executed by SCHINDLER-IT to the customer in his entrepreneurial capacity. Through placing an order with SCHINDLER-IT the customer confirms that the ordering is made in his capacity as entrepreneur.

1.2    SUBJECT MATTER OF THE AGREEMENT

are deliveries, services or a combination of deliveries and services executed by SCHINDLER-IT by order of the customer. Only deliveries and/or services in the field of information and communication technology shall become subject matter of the agreement. The deliveries and services shal be specified in the order confirmation of SCHINDLER-IT. Other deliveries and services shall not become subject matter of the agreement.

The project management and the project responsibility shall only be undertaken by SCHINDLER-IT if it is explicitly stated in the order confirmation. In all other cases, the project management and the project responsibility shall remain with the customer.

1.3.    CONTENT OF THE AGREEMENT

The components and the content of the agreement between the customer and SCHINDLER-IT shall only constitute of:

  • a) the offer made by SCHINDLER-IT
  • b) the order confirmation by SCHINDLER-IT
  • c) these General Terms and Condition

SCHINDLER-IT shall draft the order confirmation soon after receiving the order. If the offer and the order confirmation by SCHINDLER-IT differ, the order confirmation shall precede. If, in exceptional cases, SCHINDLER-IT does not submit a written offer (order at short notice, comparatively low order volume, etc.) – provided the order placement by the customer -, only the order confirmation by SCHINDLER-IT and these General Terms and Conditions shall form the elements and the content of the agreement. The validity of any further arrangements that amend or modify require the written approval by SCHINDLER-IT.

1.4.    PRECONDITIONED OBLIGATIONS OF THE CUSTOMER AND SPECIAL RIGHT OF WITHDRAWAL

The order acceptance and the contractual performance by SCHINDLER-IT require the unsolicited completion of the following obligations by the customer on time and on his own expense:

  • a) The customer shall provide trained and qualified personnel that is familiar with the IT structure of the customer.
  • b) The customer shall enable SCHINDLER-IT to access its IT structure and shall provide the SCHINDLER-IT personnel with access authorization. The customer shall enable SCHINDLER-IT to have on-site as well as remote / external access to the system
  • c) The customer shall provide for communication connections inclusive internet access and sufficient protection of his IT structure against unauthorized access and against external impairments (user administration, access control, password protection, firewall, Intrusion Detection, virus protection, etc.).
  • d) The customer shall inform SCHINDLER-IT about any specific features of his IT structure, his operational organisation and the software and hardware components used by the customer. He shall further inform SCHINDLER-IT about circumstances that hinder the completion of deliveries and services or that delay or interfere with their completion in any other way.
  • e) The customer shall render a complete and up-to-date network documentation (network plan) and product descriptions for the products used for software and hardware to SCHINDLER-IT.
  • f) The customer shall obtain the required licenses independently and without the assistance or inspection commitment of SCHINDLER-IT for software that is not subject matter of the agreement, but is used by the customer in connection with the contractual performance and/or for the usage of the subject matter of the agreement.
  • g) The customer shall ensure storage and protection of data and programs used by the customer before, whilst and after the provision of deliveries and services by SCHINDLER-IT.
  • h) The customer shall ensure that the following data formats can be received, opened, read, edited (processed) and sent in his IT structure and that they will be available to SCHINDLER-IT for the provision of deliveries and services, in an up-to-date (current) version: TXT, RTF, DOC, DOT, XLS, XLT, PPT, POT, PS (Postscript), PDF, HTML / HTM, ZIP, TIF, BMP, GIF and JPEG / JP

In case SCHINDLER-IT ascertains that one or several of the Preconditioned obligations of the customer are not being fulfilled, SCHINDLER-IT shall grant an appropriate extension to the customer for the remedy and performance of his duty. The extension shall normally amount to 14 days, in urgent cases 72 hours. SCHINDLER-IT shall be entitled to rescind the agreement if the customer neglects the provision of a remedy and the subsequent performance of his duty. In the case of withdrawal from the agreement, the customer shall be obliged to pay the agreed consideration less the value of the deliveries and services not yet having been executed as a result of the withdrawal from the agreement.

1.5.    PRICES AND DUTIES

All prices offered by SCHINDLER-IT are non-binding. Prices offered by SCHINDLER-IT shall be subject to change. If prices set by SCHINDLER-IT are altered due to changes in the current prices, weekly prices or monthly prices set by manufacturers or their sales partners before the order confirmation by SCHINDLER-IT, SCHINDLER-IT shall make a new offer to the customer altered by the components affected by the change in prices. If the change in prices happens after the order confirmation by SCHINDLER-IT and if the change in prices causes an alteration of less than ten percent of the consideration stated in the order confirmation, the customer shall be obliged to bear the change in price. If the consideration stated in the order confirmation is exceeded by more than ten percent, SCHINDLER-IT shall make a new offer to the customer.

Agreed prices do not induce a price confirmation to any further orders made by the customer to SCHINDLER-IT.

All prices are stated exclusive of taxes, fees and public charges. Royalties and license fees for copyright and intellectual property rights as well as consideration claims (‘Leerkassettenvergütung’, copy machine levy) are only included in the price if explicitly stated in the order confirmation by SCHINDLER-IT.

1.6.    PAYMENT AND CONSEQUENCES OF DEFAULT

All considerations have to be paid to SCHINDLER-IT by the customer immediately upon receipt of the invoice.

SCHINDLER-IT shall be entitled to claim a payment on account in the amount of one third of the value of the order including taxes, fees and charges. The deposit is due for payment within 14 days from the date of order confirmation.

SCHINDLER-IT shall be entitled to claim instalments after the beginning of the delivery or service. All payments have to be made without any deductions and free of charge for SCHINDLER-IT.

In case of default, default interest is charged in the amount of 1 % per month plus dunning costs, collection costs and costs of enforcement.

In case of default in payment of the payment on account or one of the instalments, SCHINDLER-IT shall be entitled to defer further deliveries or services until the customer’s payment of all charges due or the customer’s guarantee for payment through a bank guarantee in favour of SCHINDLER- IT.

If the default amounts to more than 14 days as from due date of the payment on account or installment, SCHINDLER-IT shall be entitled to rescind the agreement after granting an extension of time of further 14 days. In case of withdrawal from the agreement, the customer shall be obliged

to pay the agreed consideration less the value of the deliveries and services that have not yet been executed due to the withdrawal from the agreement.

1.7.    PAYMENT CREDITING AND OPPOSITION AGAINST RESERVATIONS AND DEDICATIONS OF PAYMENT

Payments made by the customer that do not entirely redeem the charges due in favour of SCHINDLER-IT shall be first credited to interest, then to dunning costs, collection costs and costs of enforcement and finally to the outstanding capital amount (which is the amount of the invoice without interest and expenses), starting with the oldest debt. SCHINDLER-IT hereby contradicts converse payment references made by the customer. Reservations related to payments declared by the customer shall be legally invalid.

1.8.    PROHIBITIONS OF RETENTION

The customer shall not be entitled to retain the payment on account. In case of default, the above specified consequences of default apply.

The customer is not entitled either to retain any other payments. This also applies in the case of deliveries or services that have not been fully executed yet, guarantees that have not been provided by manufacturers and warranty claims that are not yet fulfilled.

In case any major defects arise that are reported (documented) to SCHINDLER-IT by the customer within the time-limit and in the prescribed manner, the customer may retain payment of a part of the consideration due. This part of consideration shall amount to the double of the costs of remedying the defect at most.

1.9.    PROHIBITION OF SET-OFF

The customer shall not be entitled to offset alleged counterclaims against claims of SCHINDLER-IT. The customer may offset counterclaims only if such counterclaims have been legally established or have been explicitly accepted by SCHINDLER-IT in writing, stating the amount of the counterclaim.

1.10.  RIGHTS AND TERMS OF MANUFACTURERS AND LICENSORS

The customer shall safeguard the rights of the manufacturers and licensors of the components used for the services and delivered by SCHINDLER-IT and shall omit to interfere with the rights of manufacturers and licensors of such components. These rights include particularly industrial property rights, copyrights and related rights as well as trade and business secrets.

The terms of delivery of the particular manufacturer and the license terms of the licensors cannot be altered or amended neither by SCHINDLER-IT nor by the customer. The customer shall retrieve the relevant terms of delivery and license terms of the particular manufacturer and licensor, he shall comply with them and shall safeguard the rights of the manufacturers and licensors resulting from those conditions. In case those terms cannot be retrieved by the customer (exceptional case), SCHINDLER-IT shall make them accessible to the customer upon request.

The obligations described above apply to the customer himself as well as all his employees, agents and also third parties who have access to such components within the entity or within the sphere of influence of the customer with his knowledge. The customer shall provide for the legally effective imposition of those obligations to the above mentioned group of people.

All the mentioned obligations continue to apply for an indefinite time after the contractual relation has come to an end.

1.11.  NON-ASSIGNMENT-CLAUSE

The customer is not entitled to assign demands and other claims from the agreement without an earlier written approval by SCHINDLER-IT.

1.12.  EXCLUSIONS OF LIABILITY

SCHINDLER-IT shall not be liable for any damages resulting based on unexpected conditions and events, for atypical damages, consequential damages, omitted benefits, lost profit, other property damages, indirect damages, third-party claims as well as for any faults, defects, malfunctions, interruptions and expenses due to interventions, actions or alterations on behalf of the customer or the non-compliance with the Preconditioned obligations of the customer.

SCHINDLER-IT shall not be liable either for the accuracy and completeness of data collection and data processing, the achievement of certain processing speeds or response times and the integrability and implementability of components that are not subject of the agreement into the customer’s IT structure as well as the operability and interoperability of such components with components that are subject of the agreement.

Claims for damages against SCHINDLER-IT and its agents shall in any event be excluded unless the customer is able to prove that SCHINDLER-IT’s misconduct was either intentional or due to gross negligence. SCHINDLER-IT’s and its agents’ liability for slight negligence shall be in any case excluded.

1.13. LIMITATIONS OF LIABILITY

Claims for damages against SCHINDLER-IT and its agents made by the customer are in any case limited to twice the value of the order exclusive of taxes, fees and charges (according to the order confirmation by SCHINDLER-IT) and with the maximum amount of EUR 20.000,00 (EURO twenty thousand), whereby the lower of these two upper limits is applicable.

Regardless of the above specified exclusions of liability and limitations of liability, liability of SCHINDLER-IT and its agents shall be limited to the expenses necessary for damage repair despite the fulfilment of the Preconditioned obligations of the customer or the expenses necessary in case of non-fulfilment of these customer obligations.

The Product Liability Act is applicable with the amendment that SCHINDLER-IT shall not be obliged to reimburse to the customer. The customer shall be obliged to impose this restrictive clause according to the Product Liability Act on his own contractual partners, otherwise he is responsible to recourse to SCHINDLER-IT.

1.14. PRESCRIPTION OF LIABILITY

All liability claims by the customer prescribe by a limitation period of one year, starting from the moment when the customer becomes aware of damages and the damaging party or – priorly – should have been aware of in case of fulfilment of the Preconditioned Obligations of the Customer. The provisions concerning the warranty period shall remain unaffected by this.

1.15. APPLICABLE LAW

The contractual relationship, its realisation, its validity, its enforceability and all the rights and obligations resulting thereof are subject to Austrian Law. The applicability of the UN Sales Convention (CISG) and the applicability of law rules (conflict-of-law rules) that refer to another than the Austrian law is excluded.

1.16. PLACE OF FULFILMENT AND PLACE OF JURISDICTION

The place of fulfilment is SCHINDLER-IT’s business premises in 2100 Stetten, Austria.

Waiving any other jurisdiction, SCHINDLER-IT and the customer shall acknowledge the competence of the court in A-2100 Korneuburg having subject-matter jurisdiction in any and all cases of dispute arising from the contractual relationship and in connection therewith.

1.17. SAFEGUARDING CLAUSE AND INTERPRETATION OF THE CONTRACT

Should any part of the agreement be invalid, annullable or else contradict any existing law, the rest of the agreement shall remain unaffected and valid. Instead of the invalid provision a valid provision shall be deemed agreed that comes as close as possible to the economic equivalent of the original provision and the purpose of the contract. The same shall apply for the completion of gaps in the contract through a supplementary contractual interpretation in the aforementioned manner. SCHINDLER-IT and the customer commit themselves mutually to fulfil in good faith all obligations arising from the contract.

1.18. RESERVED CHANGES IN THESE GENERAL TERMS AND CONDITIONS

Changes in technologies, in prices and (marketing) conditions prescribed by manufacturers and licensors, in the terms and conditions of liability insurances, in the taxation of production factors and the legal situation cannot be influenced by SCHINDLER-IT, but might lead to changes in these General Terms and Conditions. SCHINDLER-IT reserves its right to make such alterations and shall make such altered General Terms and Conditions accessible to the customer in time, before their entry into force. The customer shall be able to access the General Terms and Conditions at any time. The customer shall receive them from SCHINDLER-IT at his request at any time.

1.19. WRITTEN FORM REQUIREMENT

Amendments of and supplements to the content or any parts of the contract shall be made in writing in order to be legally effective (mutual authorized signature). Waiving of this formal requirement may only be made in writing with mutual authorized signature.

1.20 REFERENCES AND OBLIGATIONS OF SECRECY

SCHINDLER-IT shall be entitled to name the customer as well as the deliveries and services provided for him to third parties for reference purposes.

Without prejudice to this right, both the contract and all operational, technical and organizational matters as well as matters relating to business of SCHINDLER-IT are subject to strict secrecy, and beyond the end of the contractual relation for an indefinite time.

Part 2:        ADDITIONAL TERMS OF DELIVERY

2.1 DELIVERY AND DIVISIBILITY

Delivery will be made either on-site by SCHINDLER-IT’s personnel or by shipment, whereby SCHINDLER-IT at its own discretion decides upon the delivery method and nominates the carrier. The carrier shall not be a subcontractor of SCHINDLER-IT. Delivery by shipment is made at the customer’s risk. SCHINDLER-IT will take out transport insurance (shipping insurance) at the customer’s request only.

Each delivery can be divided into the components it consists of.

In case of the initial and/or subsequent non-fulfilment of the Preconditioned Obligations of the Customer as well as the delay or interruption of the delivery due to reasons that fall into the customer’s responsibility, SCHINDLER-IT shall be entitled to bill the customer for the parts of consideration that are attributable to the delivered components. Those parts of consideration are to be paid by the customer immediately after receipt of the invoice. Exceeding demands and claims shall not be affected by the partial maturity of the consideration.

2.2 PERIOD OF DELIVERY AND COMPONENT CHANGES

As long as SCHINDLER-IT does not communicate an earlier date of delivery in the order confirmation, SCHINDLER-IT shall begin with the delivery within a period of 30 days, counted from the last of the below points in time:

  • a) Fulfilment of the Preconditioned Obligations of the Customer
  • b) Date of the order confirmation by SCHINDLER-IT
  • c) Credit of the payment in advance to SCHINDLER-IT’s bank account.

SCHINDLER-IT shall be entitled to carry out the delivery at any time within the delivery deadline and within the customer’s business hours. The customer shall ensure that the delivery can be carried out without delay and without interruption.

In case of the initial and/or subsequent non-fulfilment of the Preconditioned Obligations of the Customer as well as the delay or interruption of the delivery due to reasons that fall into the customer’s responsibility, SCHINDLER-IT shall be entitled to newly execute, suspend and subsequently continue the delivery. The customer shall bear the time delays as well as the additional costs for personnel and transport arising therefrom.

In case the manufacturer of a component or his sales partner does not deliver to SCHINDLER-IT in time for reasons that do not fall into SCHINDLER-IT’s responsibility, resulting in the fact that SCHINDLER-IT will not be able to comply with the delivery date or the delivery deadline, SCHINDLER-IT shall be entitled to prolong the delivery date or delivery deadline for 14 days at most.

In case the manufacturer of a component or his sales partner does not deliver within this prolonged deadline of 14 days in time either or in case the manufacturer even stops the production and/or delivery of the component, SCHINDLER-IT shall deliver a component of the same quality produced by the same manufacturer or a different one. An extra charge associated with this, if necessary, shall not exceed a tenth of the price for the component offered by SCHINDLER-IT.

2.3 RESERVATION OF TITLE AND CUSTOMER OBLIGATIONS

All components delivered by SCHINDLER-IT shall remain unrestricted property of SCHINDLER-IT until full payment of considerations (sum of all invoice amounts) and incidental costs (interest, dunning costs, collection costs and costs of enforcement) and may not be resold, passed on and charged by the customer until full payment of considerations. Limitations on disposal, transfer and charging of components covered in manufacturer’s terms of delivery and licensor’s licence terms shall not be affected by this and shall remain valid without limitations.

The customer shall be obliged to maintain the delivered components in a proper, unchanged condition and according to the manufacturer’s terms until full payment of considerations and, in case, to make employees, agents and third parties aware of SCHINDLER-IT’s unrestricted reservation of title.

Also, the customer shall omit changes of location, pledge and assignment as security of the delivered components until full payment of considerations.

In case of changes of location, executive pledging or confiscation of the delivered components ordered by the authorities, SCHINDLER-IT must immediately be informed by the customer, and the customer shall assist SCHINDLER-IT so that SCHINDLER-IT will be able to assert its property rights as well as regain ownership of the components.

2.4 ACCEPTANCE

In the case that the delivery also includes installation and implementation, acceptance shall be carried out by the customer.

The acceptance comprises only the delivered components to be installed and implemented by SCHINDLER-IT, but not any other hardware and software used by the customer.

Acceptance shall be carried out immediately after completion of the installation and implementation of the delivered components, by means of a functional test.

In case defects that substantially obstruct operations emerge throughout the test, SCHINDLER-IT shall remedy these defects within a reasonable period of time and shall set a new acceptance date.

The acceptance is successful if no defects that obstruct operations emerge. However, SCHINDLER- IT shall be obliged to remedy defects that do not obstruct operations within a reasonable period of time that does not exceed 30 days.

In case the customer makes use of the delivered components in real operation prior to the acceptance and does not make a complaint about the obstructing defects within 7 days from implementing the components, acceptance shall be substituted by real operation and the legal effects of acceptance shall come into force without performance of the test.

In the case of delivery of the components by SCHINDLER–IT for installation by the customer, no acceptance takes place.

2.5 WARRANTY

SCHINDLER-IT warrants that the delivered hardware components are free from defects that obstruct operations and are, in principle, suitable for the utilisation in the customer’s entity, provided that the customer complies with the terms quoted in the product descriptions and the terms of manufacturers.

SCHINDLER-IT warrants that the delivered software components are executable with the provided hardware components and are, in principle, suitable for the utilisation in the customer’s entity, provided that the customer complies with the terms quoted in the product descriptions and other documentations of manufacturers or licensors.

SCHINDLER-IT shall assume warranty for the operability of other hardware only if SCHINDLER-IT had sufficiently been informed about the characteristics of this hardware and the software installed on it, prior to the order placement and if SCHINDLER-IT confirms in writing the operability of the delivered software with this hardware and the interoperability of the delivered software with the software that has been used by the customer before the delivery.

Warranty requires the fulfilment of the Preconditioned Obligations of the Customer during the delivery and during the warranty period.

The warranty period amounts to 6 months from the delivery. In case an acceptance takes place besides or instead of a delivery, the warranty period shall run from the acceptance date. The warranty period shall not be extended by remedying or replacement, nor shall it be reset.

The customer shall notify defects to SCHINDLER-IT in writing and with a complete and conclusive description of the defects within 7 days from the delivery or acceptance. The description of the defects has to be written in a way that the defects can be reproduced and can be remedied as effectively as possible.

SCHINDLER-IT shall be entitled to charge the customer with costs for personnel and transport that arise from complaints about non-existing defects, incomplete descriptions of defects, complaints about defects that cannot be reproduced and complications remedying defects.

2.6 EXCLUSION OF WARRANTY

SCHINDLER-IT shall not warrant for any defects or faults that fall into the customer’s responsibility or that can be ascribed to one or more of the causes listed below:

  • a) the utilisation of used components
  • b) installations and rebuildings carried out by the customer
  • c) the utilisation of components by the customer that may object to SCHINDLER-IT’s recommendations
  • d) non-compliance with the terms of the manufacturers and licensors of the delivered components by the customer
  • e) changes of the operating system, the application programs, interfaces and configurations without the consent of SCHINDLER-IT
  • f) improper operation of the components or equivalent user errors or operation that contradict the product descriptions or the terms of the manufacturer and licensor
  • g) deferred or incorrectly conducted maintenance and servicing of the components
  • h) defects and faults as a result of external access or external influences (hacker, intrusion, virus attack, etc.)

2.7 MANUFACTURER WARRANTIES AND RESTRICTIONS OF WARRANTY

In case manufacturers guarantee for the components delivered by SCHINDLER-IT, SCHINDLER-IT shall support the customer in the assertion of guarantee claims.

In case a defect to such components occurs, SCHINDLER-IT shall either assert the guarantee in accordance with the manufacturer’s guarantee conditions itself or support the customer in the assertion of guarantee claims.

The customer accepts the manufacturer’s guarantee conditions including the manufacturer- and component-specific particularities (guarantee period, on-site guarantee, Bring-In guarantee, permissibility of the component exchange, no assumption of transport costs, etc.).

Warranty on delivered software components is limited to the assignment of those warranty claims to the customer that SCHINDLER-IT itself has against the manufacturer or his sales partner.

Part 3: ADDITIONAL TERMS OF SERVICE

3.1 PERFORMANCE OBJECT

SCHINDLER-IT renders support, programming or training or a combination of such services to the customer. The nature as well as the duration of those services shall be specified in the order confirmation by SCHINDLER-IT.

The customer has no claim to the provision of recurring services or services exceeding the subject matter of agreement by SCHINDLER-IT. Nor does the customer have claim to a certain response time or a certain completion date if not explicitly confirmed by SCHINDLER-IT in writing.

3.2 SEPARATION OF DELIVERIES AND PROJECTS

Services rendered by SCHINDLER-IT form a separate performance unit from deliveries made by SCHINDLER-IT and are invoiced independently from such deliveries. This applies also when SCHINDLER-IT renders services in connection with deliveries.

Services rendered by SCHINDLER-IT are not of a project nature and do not form part – in the relationship between SCHINDLER-IT and the customer – of IT projects conducted by the customer at most. This also applies if from the customer’s point of view the services are technically, organisationally and/or timely integrated into an IT project.

The customer’s obligations to SCHINDLER-IT shall not be postponed or restricted by any delays in such IT projects.

3.3 PLACE OF PERFORMANCE

The place for the provision of services shall be defined by SCHINDLER-IT according to technical, spatial and organisational conditions. In case the service can be provided both on site at the customer’s premises and outside the customer’s premises, SCHINDLER-IT shall select the place of performance that can be used most appropriately and effectively with respect to the nature and duration of the service.

3.4 TIME OF PERFORMANCE

SCHINDLER-IT shall begin to render the services at the date stated in the order confirmation by SCHINDLER-IT. This date shall be deemed to be a fixed date only in case of training.

In case no date and no deadline for the commencement of the services are stated in the order confirmation by SCHINDLER-IT, SCHINDLER-IT shall begin to render the services within 72 hours in urgent cases, otherwise within 30 days from the date of dispatch of the order confirmation by SCHINDLER-IT.

The customer shall ensure that the services can be rendered without delay and without interruption. In case of delay or interruption due to reasons that are attributable to the sphere of the customer, SCHINDLER-IT shall be entitled to the provision of services at a later date and interruptions of such. The customer shall bear the additional cost arising therefrom.

The customer shall confirm services in written accounts of time taken. Insofar as the subject of performance consists of half day or daily training with lump sum payment arrangements such accounts do not apply.

In case SCHINDLER-IT renders support or programming to the customer for more than one month, the accounts of time shall be summarized on a monthly basis for billing purposes. The consideration shall be invoiced to the customer monthly.

3.5 CONSIDERATION AND ADDITIONAL COSTS

The consideration for half day or daily trainings shall be agreed as a lump-sum payment. All other services, including hourly trainings, shall be accounted to the customer on a time spent basis, at the hourly rate valid for the provision of services.

The lump sum payment arrangement and the hourly rate, respectively, shall be stated in the order confirmation of SCHINDLER-IT.

The customer shall bear any costs for travel, boarding and lodging, in case of training, where required, also the costs for the rental of premises.

3.6 CUSTOMER OBLIGATIONS IN CASE OF PROGRAMMING

The preparation of the functional specification document and the determination of the conditions for the programming shall be the duty and responsibility of the customer. The customer shall remain bound to this functional specification document and these conditions until completion of the programming by SCHINDLER-IT. Alterations made to the functional specification document and the conditions for the programming are made binding upon SCHINDLER-IT only with the written approval of SCHINDLER-IT.

SCHINDLER-IT shall not be obliged to revise the functional specification document and the determination of the conditions for the programming for accuracy, completeness and feasibility and shall not be deemed to assume any liability or duties to warn vis-à-vis the customer.

Beside the Preconditioned Obligations of the Customer the customer shall also be obliged to provide the development environment, development tools and test environment, interfaces for data import and export as well as actual data (real data) of corresponding test data for the programming.

The customer’s obligations concerning the sufficient protection against unauthorized access and against external impairments shall also apply to the development environment and the test environment.

3.7 WAIVER OF ACCEPTANCE

Due to the lack of project character of the programming and the limited extent in terms of scope and time the customer renounces the acceptance.

An acceptance, in contrast, takes places by way of exception only if SCHINDLER-IT confirms so in writing. In this case clause 2.4 ACCEPTANCE shall apply correspondingly and analogously for the acceptance and the test.

3.8 RIGHTS OF USE OF PROGRAMMES

Except intellectual property rights on programmes and program code remaining with the customer according to constraining law, the customer shall acquire only a non-transferable, non-exclusive right of use that is restricted to the IT structure of the customer, but without limitation in time on license of use.

All other rights for programmes, documentations and all findings shall remain with SCHINDLER-IT. Rights of use of third parties shall remain unaffected.

The customer shall be obliged to refrain from the use of the programmes, documentations and work results outside the scope of the preceding provisions. Otherwise  the customer is obliged to pay an appropriate remuneration to SCHINDLER-IT at any time upon request – regardless of any further omission and compensation claims.

3.9 WARRANTY FOR PROGRAMMING

SCHINDLER-IT warrants that the created programmes correspond to the functional specification document and the determination of the conditions for the programming specified by the customer.

SCHINDLER-IT warrants that the programmes are executable in the test environment of the customer and, in the absence of a test environment, in the IT structure provided by the customer for real operation and that the programmes are, in principle, suitable for the usage in this IT structure.

Warranty requires the fulfilment of the Preconditioned Obligations of the Customer during the programming and the warranty period.

The warranty period amounts to 6 month from delivery of the programmes to the customer.

In case, by exception an acceptance is agreed, the warranty period shall run from the acceptance date.

The customer shall notify defects to SCHINDLER-IT in writing and with a complete and conclusive description of the defects within 7 days from the completion of the programming (or from the exceptionally agreed acceptance). The description of the defects has to be written in a way that the defects can be reproduced and can be remedied as effectively as possible.

SCHINDLER-IT shall be entitled to charge the customer with costs for personnel and transport that arise from complaints about non-existing defects, incomplete descriptions of defects, complaints about defects that cannot be reproduced and complications remedying defects.

3.10 EXCLUSION OF WARRANTY

Warranty claims against SCHINDLER-IT shall be excluded if:

  • a) the customer alters the programmes or else intervening in the code of the programmes;
  • b)        the customer alters the provisions specified in the functional specification document or in the determination of the conditions for the programming in a way that they cannot be taken into consideration for the programming provided by SCHINDLER-IT;
  • c) the customer uses the programmes in a different IT structure, not corresponding with the test environment or, in the absence of such, with the environment provided by the customer for real operation
  • d) defects, faults or disorders can be ascribed to the access by persons that are not competent or trained, that are not familiar with the customer’s IT structure or that are not entitled o the access of the programmes;
  • e) defects, faults or disorders can be ascribed to the unauthorized access or to external impairments;
  • f) defects, faults or disorders can be ascribed to the fact that the customer utilises the programmes on hardware and/or together with software without the written assurance by SCHINDLER-IT of the operability of these programmes with this hardware or the interoperability of the programmes with the Software used by the customer before the beginning of the programming.

3.11 RIGHTS OF USE OF TRAINING DOCUMENTATION

All rights on documentation associated with trainings (handouts, slides, scripts, etc.) provided to the customer or made accessible to the customer by SCHINDLER-IT shall remain with SCHINDLER- IT. The customer shall be obliged to omit the passing-on and the usage of such training documentation that transcends the entity and to omit the removal or amendment of added copyright notations.