Status as of: 01.02.2016
I. Preliminary Remarks
Fabasoft Austria GmbH with its registered offices in Honauerstraße 4, 4020 Linz (“Fabasoft“) sells software products that have been produced by Fabasoft R&D GmbH and/or Mindbreeze GmbH (“software products“). For this reason Fabasoft has special expertise and experience in the possible applications, functionalities, features and characteristics of these software products and offers customers training courses in this respect.
The customer wishes to participate in such training courses and to gain the relevant knowledge concerning the possible applications, functionalities, features and characteristics of these software products within the framework of the training courses.
II. Applicability of the General Terms and Conditions
The following General Terms and Conditions (“GTCs”), in their respective version valid at the time of registration, shall apply exclusively for all current and future business transactions with Fabasoft connected with the training courses, in particular for the registration, conclusion of the agreement and holding of these training courses.
Fabasoft expressly reserves the right to make reasonable amendments to these GTCs. Customers will be informed of any amendments at least 1 (one) month prior to their entry into force by means of a notification by email sent to the email address indicated by the customer with the registration (“customer email address”) and by means of their publication on the website (“Fabasoft website”). The respective amendments are deemed accepted if the customer does not object to the amendments within one month after their announcement by email. The consequences of this, namely the implication of the planned amendment for the customer, the customer’s right of objection and the time limit for the objection, are indicated separately in the notification. The date on which the objection is sent is decisive for its timeliness.
III. Registration, Conclusion of the Training Agreement
The training courses are either published on the Fabasoft website quarterly in advance (“Open Customer Training Courses”) or agreed as required in individual cases with the customer ("Individual Training Courses"). Presentation of the training courses does not constitute a binding offer on the part of Fabasoft for the conclusion of a training agreement.
The customer submits his/her offer for concluding a training agreement by completing the registration form, confirming knowledge of the GTCs and clicking on the button “Registration with obligation to pay”, for which he/she will receive an automatically generated confirmation of receipt. The customer is bound by this offer for 10 working days after submission of the offer.
The training agreement is not concluded with binding effect for both parties until and in as far as Fabasoft accepts the offer by means of the issuing of an invoice (conclusion of the agreement).
IV. Subject Matter of the Training Agreement
Based on the training agreement Fabasoft provides a training service vis-à-vis the participants named by the customer. The training service is specified as follows (“course description”):
- in the case of open customer training courses, it is based on the course description published on the Fabasoft website or
- in the case of individual customer training courses, it is based on the course description specifically developed and agreed with the specific customer.
Fabasoft’s contractual obligations entail the holding of the training course in the agreed scope in compliance with the course description. Whereby Fabasoft’s owes the requisite diligence, but not, however any specific success, in particular its liability does not preclude that the participant implements or is able to implement the know-how imparted in the training course or that the requirements or expectations of the customer or participant are fulfilled.
In as far as the prospect of a specific trainer or lecturer has been indicated in the description of the course, Fabasoft reserves the right to replace said person with a different equally qualified trainer or lecturer without any special reason being required for doing so.
At the end of the training course the participant will receive confirmation of participation in the form of a certificate of participation. This contains confirmation that the participant took part in a specific training course.
V. Dates and Times of the Training Courses
The training courses take place on the dates announced in the course description or the agreed dates from 9:00 a.m. to 5:00 p.m. This time includes two coffee breaks and a one-hour lunch break. Fabasoft reserves the right to adapt the training times to bring them in line with organisational requirements.
Fabasoft reserves the right to cancel individual training courses if for a specific training course the minimum number of participants stipulated in the course description has not been reached. The customer will be notified of the cancellation of the course by email sent to the customer's email address at least 8 working days prior to the start of the respective training course. The customer will be offered an alternative date within three months, calculated from the date of the cancelled training course. Any more extensive claims of the customer or participant are excluded.
VI. Participation in a Seminar
For reasons of quality assurance training requirements with regard to the prior knowledge of the participants, e.g. with regard to language, previous completion of other training courses, levels of difficulty, etc. (training requirements), are specified in the course description. The customer is obliged to ensure that the participants he/she registers for a course fulfil these training requirements.
VII. Course Fees, Terms of Payment, Cancellations
The course fee falls due for payment promptly with the issuing of the invoice and must have been received by Fabasoft at the latest at the start of the training course. Offsetting of the course fee against claims of the customer vis-à-vis Fabasoft is excluded.
Travel expenses as well as costs for accommodation and meals incurred by the participant are not included in the training course nor the course fees, so that the customer is responsible for payment of any such costs and expenses incurred.
Fabasoft will not charge any cancellation fees in the event a registration is cancelled at the latest 30 calendar days prior to the start of a training course. A cancellation fee amounting to 50% of the course fee will be charged in the event a registration is cancelled at the latest 10 calendar days prior to the start of a training course. A cancellation fee amounting to 100% of the course fee will be charged for cancellations received later than this or in the event a participant fails to appear on the agreed date.
The cancellation is deemed timely if it is received by Fabasoft by the day indicated in the previous paragraph. The day on which the training course is held is not included in the calculation of the time limit.
If a course fee has already been paid, this will be refunded minus the cancellation fee within 14 calendar days calculated as of the date of the cancellation.
The customer is entitled to submit the name of suitable substitute participants to fabasoft in writing up until 3 calendar days prior to the start of the training course.
VIII. Training Venue
The training courses take place at the venue indicated in the course description. As a matter of principle, this is a venue determined by Fabasoft (“in-house”). In the case of a separate agreement with the customer, Fabasoft will hold the training course on the premises of the customer ("on-site training course").
In the event the customer provides hardware or software for the participants or the trainers/lecturers, the customer is obliged to secure any data stored on or connected with such software or hardware at his/her own expense.
The following special regulations apply in the case of on-site training courses:
- The customer shall provide the rooms as specified by Fabasoft at his/her own expense;
- The customer is obliged at his/her own expense to provide the demonstration and EDP equipment for the individual participants and the trainer or lecturer specified by Fabasoft, such as suitable exercise devices and appropriate software, of the type and numbers requested by Fabasoft;
- The customer is obliged to reimburse Fabasoft for all additional costs incurred in connection with the fact that the training course is not held in-house (e.g. allowances, travel and accommodation expenses etc.);
- Fabasoft assumes no liability for any damage to the EDP system of the customer or its databases caused by the work, demonstrations, installations or any other manipulations involved in its use. Fabasoft expressly points out that it is the sole responsibility of the customer to ensure his/her EDP system in such a way that neither the participants nor the trainer or lecturer can damage it or the databases.
IX. Warranty and Liability
Fabasoft undertakes to fulfil all its obligations arising from the training agreement with the required diligence and expertise, but can however, not guarantee to fulfil all requirements and expectations of the customer or the participant.
Neither of the parties is liable vis-à-vis the other party for non-performance or delayed performance of a service arising from circumstances outside of the control of the party, provided these are not the fault of the party whose performance is not fulfilled or is delayed or the risk of one of the aforementioned events. This shall apply in particular in the case of force majeure, acts of war, terror attacks, natural disasters, accidents, industrial action and acts, omissions and negligence of third parties or official, administrative and/or judicial measures.
Insofar the customer is a consumer pursuant to § 1 KSchG (Consumer Protection Act), warranty and compensation rights are governed by the statutory regulations, provided nothing to the contrary is specified below: Fabasoft is liably solely for damage caused by wilful intent or gross negligence on the part of Fabasoft. Fabasoft is liable solely for personal damage in the case of simple negligence. This shall in no way affect the statutory right of revocation (see Point X, of the GTCs).
Insofar the customer is an entrepreneur pursuant to § 1(2) KSchG (Consumer Protection Act), warranty and compensation rights are governed by the statutory regulations, provided nothing to the contrary is specified below:
- The customer is obliged to check the service for contractual conformity and any other deficiencies immediately after delivery. Fabasoft or the trainer or lecturer must be notified immediately in writing of any deficiency in the service performed by Fabasoft, i.e. during the training course, however, at the latest immediately afterwards. Presumption pursuant to § 924 ABGB (Austrian General Civil Code) is expressly excluded.
- In the event of a warranty claim, Fabasoft can at its own discretion offer to replace, remedy the service or offer a reduction in price. All other warranty remedies (revocations) are expressly excluded. The customer will support Fabasoft with the removal of deficiencies to a reasonable extent.
- The judicial assertion of claims under warranty rights must be made within 6 months as of the performance of the service.
- Fabasoft is liable solely for damage caused by its wilful intent or blatant gross negligence. Liability for simple negligence, provided this is legally permissible, is excluded in all cases. The customer is shall bear the burden of proving wilful intent or blatant gross negligence on the part of Fabasoft.
- In as far as it is permitted by law, Fabasoft assumes under no circumstances liability for loss of profit, anticipated savings that did not materialise, loss of interest, third party claims for damages against the customer, indirect damage or consequential damage.
- A limitation period of one year applies to claims for compensation against Fabasoft. The limitation period starts at the time the customer gains knowledge of the deficiency.
X. Right of Revocation, Revocation Instruction
Insofar the customer is a consumer pursuant to § 1 KSchG and the training agreement is concluded as a distance sales agreement or outside of the business premises of Fabasoft, the customer is entitled to the following statutory right of revocation:
Right of Revocation
The customer has the right to revoke this training agreement within fourteen days without having to state any reasons.
The revocation period is fourteen days as of the day the agreement is concluded.
In order to exercise the right of revocation, the customer must notify Fabasoft Austria GmbH with ist registered offices in Honauerstrasse 4, 4020 Linz, Austria, telephone +43 732 606162 -0, fax +43 732 606162 -609, email firstname.lastname@example.org of his/her intention to revoke this training agreement by means of a clear declaration of such (e.g. sent to Fabasoft in letter form by post or per fax or email). The customer may use the attached sample revocation form for this, although this is not obligatory.
In order to observe the revocation period it is sufficient that the customer sends of the notification of the exercising of the right of revocation before expiry of the revocation period.
Consequences of the Revocation:
In the event the customer revokes this training agreement, Fabasoft is obliged to return all payments to the customer that it has received from him/her, including delivery costs (with the exception of any additional costs incurred as a result of the customer choosing a form of delivery other than the competitive standard delivery offered by Fabasoft) without delay and at the latest within fourteen days as of the day Fabasoft receives notification of the revocation of this training agreement. Unless expressly agreed with the customer to the contrary, Fabasoft will use the same means of payment for the refund as the customer used for the original transaction; under no circumstances will the customer be charged for this refund.
In the event the customer demanded that the services should begin during the revocation period, the customer is obliged to pay Fabasoft a reasonable sum proportional to the part of the service already performed at the time the customer notifies Fabasoft of the exercising of the right of revocation of the training agreement compared to the total scope of the service indicated in the training agreement.
Exclusion of the Right of Revocation
The right of revocation is excluded in the event Fabasoft has started performance of the service – based on the express demand of the customer and confirmation of his/her knowledge of the loss of the right of revocation in the case of full performance of the agreement – and completely performed the service before expiry of the revocation period.
XI. Non-disclosure, Confidentiality
The parties undertake to treat all confidential information received in the course of the training course as strictly confidential and to otherwise refrain from using such information. In particular, it is not permitted to pass on this confidential information to any third parties without the prior written approval of the other party. The customer undertakes with regard to the participants attributed to him/her and Fabasoft undertakes with regard to the trainer or lecturer to point out this non-disclosure obligation to said persons, to obligate these to non-disclosure and to take all suitable measures to ensure the confidential information is not disclosed.
The non-disclosure obligation does not apply to confidential information that (i) became public knowledge without any activity of a party, (ii) was lawfully received from a third party without any violation of a non-disclosure obligation, (iii) is released in writing by the respectively authorised party, (iv) the respective party is obliged to pass on due to binding legal regulations or a final decision of a judiciary or administrative authority.
XII. Intellectual Property
Software made available to the participants by Fabasoft, the trainer or the lecturer during the course of the training, remains equally in sole ownership of Fabasoft as the information it contains. Through participation in the training course the participant acquires no other right of use to this software or this information than use during the training course and only then in as far as this is necessary for the training course and is authorised by the trainer or lecturer.
All documentation and any other training documents made available to the participants during the course of the training, including training examples, training material and all types of software or parts of software regardless of whether these are in paper for or electronic form (“training documentation”) are protected in favour of Fabasoft or a contractual partner of Fabasoft or constitute protected know-how or trade and business secrets of Fabasoft.
Unless agreed to the contrary, the customer is obliged to return all information and training documentation provided in the course of the training to Fabasoft at the end of the training course and/or to ensure that these are returned and for whose return the customer is liable.
Neither the participants nor the customer are granted any exclusive rights, in particular no property rights or any other copyrights or rights of use, to this information or training documentation. Transmission, reproduction or dissemination – in any form whatsoever – is not permitted.
Should copyright-protected works come about by reason of the training course, these belong exclusively to Fabasoft. The customer is only authorised to use such copyright-protected works in accordance with an individual licence agreement that is to be concluded.
XII. General Provisions, Place of Jurisdiction
Fabasoft and the customer are independent parties to the agreement. No regulation included herein shall establish a partnership, joint venture or a contractual relationship between the parties.
This training agreement sets forth the entire and finalised agreement between the parties to the agreement. Any prior agreements become null and void. There are no verbal subsidiary agreements.
All amendments to this training agreement require the written form (require a signature). This also applies to the any amendment to this written form requirement.
The training agreement and all disputes associated with it are subject exclusively to Austrian law, to the exclusion of the UN Convention of Contracts for the International Sale of Goods.
The statutory place of jurisdiction applies vis-à-vis consumers. If the place of residence, normal domicile or place of employment of the customer is not in Austria, the place of jusrisdiction is Linz. Linz is agreed as the exclusive place of jurisidiction vis-à-vis enterprises pursuant to § 1 KSchG. At the discretion of Fabasoft proceedings can also be brought before the competent court in whose jurisdiction the customer has its registered offices, a subsidiary or assets.
XIII. Severability Clause
Should a point in these GTCs or the training agreement be invalid, this shall in no way affect the remaining points. A point that is valid and comes as close as possible to the economic purpose of the invalid point is deemed agreed to replace said invalid point.