1. General principles
1.1 JTM digital GmbH (hereinafter referred to as "JTM digital") provides all services in the field of mobile and web development, as well as consulting, on the basis of these "General Terms and Conditions" (hereinafter referred to as "GTC") and the individual written offer issued by JTM digital.
1.2 These GTC shall also apply to all future contractual relationships, even if they are not expressly reffered to in subsequent offers from JTM digital.
1.3 Any general terms and conditions of the Customer that deviate from these HTC shall only apply if JTM digital has expressly recognized them in writing.
1.4 Amendments or additions to these GTC must be made in writing. Verbal collateral agreements or declarations shall only be valid if confirmed by JTM digital.
2. Scope of services, conclusion of contract
2.1 The scope of services to be provided shall be based on the written offer by JTM digital.
2.2 Unless otherwise stated in the offer, offers shall be valid for four weeks from the date of issue.
2.3 By accepting the offer, the Customer acknowledges that the services provided by JTM digital may include recommendations, for which JTM digital shall not be responsible or liable regarding their implementation.
2.4 The agreement shall be deemed concluded upon JTM digital’s receipt of the order confirmation, signed by the Customer and enclosed with the offer.
3. Obligations to cooperate
3.1 The agreement shall be deemed concluded upon JTM digital’s receipt of the order confirmation, signed by the Customer and enclosed with the offer.
3.2 The relationship of trust between the Customer and JTM digital requires that JTM digital is fully informed of any previous or ongoing services related to the services to be provided.
3.3 The Customer shall ensure that all requirements specified in the offer are accurate and complete.
3.4 The Customer shall make all decisions necessary for the provision of the agreed services in a timely manner and obtain aall required approvals (e.g. from the group management, supervisory board, employees, or works council).
3.5 The Customer and its representatives shall be solely responsible for:
3.5.1 Performing all management functions decisions
3.5.2 Appointing a competent representative to oversee the services provided by JTM digital,
3.5.3 Assessing the appropriateness and results of JTM digital’s work,
3.5.4 Assuming responsibility for the results, establishing and maintaining internal controls, including those related to JTM digital’s activities.
3.6 If the agreed services are provided on the Customer's premises, the Customer shall provide the necessary office infrastructure free of charge and ensure that all organizational and operational prerequisites are in place to enable uninterrupted service delivery.
3.7 Any changes in the Customer’s workflows that may affect the agreed services must be coordinated with JTM digital prior to evaluation oft he technical nd commercial implications.
3.8 If the Customer fails to meet its obligations to cooperate or if other circumstances beyond the scope of JTM digital prevent JTM digital service delivery, any agreed schedule (including milestones) shall be adjusted accordingly. JTM digital shall be entitled to charge the Customer for any additional costs (e.g. employee downtime).
3.9 Unless otherwise stated in the offer, the Customer shall provide all relevant content for development such as texts, translations, pictures, logos in agreed quality and within the agreed time period. Upon request and agreement, JTM digital may support with these tasks and will invoice these on a time-and-material basis.
3.10 If project timeline is repeatedly delayed due to the Customer’s missed decisions or other internal reasons, JTM digital may halt a project or charge additional project management fees on a time-and-material basis.
3.11 The Customer shall ensure that all necessary roles, project and process knowledge are represented within the project team.
3.12 The Customer shall test the delivered code promptly and no later than 4 weeks after the handover. If no written feedback is subjected within this period, JTM shall deem the code approved unless otherwise agreed.
4. Performance of the services
4.1 JTM digital is obligated to provide the services specified in the offer, but does not guarantee any specific economic success.
4.2 Custom software development shall be based on the written specification provided by the Customer or created by JTM digital based on information and documents supplied by the Customer. The Customer shall review and approve the specification for accuracy and completeness. Subsequent change requests may cause delays and additional costs, which shall be billed on a time-and-material basis.
4.3 If the Customer provides specification, JTM digital shall base its offer solely on the received information. Any additional functions that are identified during the detailed specification phase will be treated as a change request and may impact the project’s cost and timeline.
4.4 JTM digital shall be entitled to assume that all information and data provided by the Customer are accurate and complete. Unless expressly agreed otherwise, JTM digital is not required to verify their correctness.
4.5 Unless explicitly agreed otherwise, accessibility in accordance with the Federal Law on Equality of Persons with Disabilities (Federal Disability Discrimination Act — BGStG) is not included in the scope of services. If accessibility is not agreed upon, the Customer shall be responsible for ensuring compliance with the Federal Disability Discrimination Act. Moreover, the Customer shall be responsible for verifying the legal admissibility of content, particularly in terms of competition, trademark, administrative and copyright compliance. JTM digital shall not be liable for minor negligence or, after fulfilling any duty to warn, for the legal pertinence of content provided by the Customer.
4.6 Any defects – defined as deviations from the agreed written specification - shall be reported to JTM digital in written form with sufficient documentation by the Customer. JTM digital shall make efforts to remedy such defects promptly. Should substantial defects prevent or significantly hined operation, re-acceptance shall be required after the correction of abovementioned defects.
4.7 The Customer shall not be entitled to refuse acceptance due to minor defects.
4.8 Both parties may request amendments to the agreed scope of services ("change requests") at any time. Each change request shall include a detailed description, justification, and an assessment of its impact on cost and schedule. A change request shall be binding only upon written approval by both parties.
4.9 JTM digital shall endeavor to accommodate the Customer's preferences regarding personnel deployment, but reserves the right to assign and reassign staff at its own appropriate discretion for the provision of the services.
4.10 JTM digital shall be entitled, at its discretion, to engage qualified subcontractors or cooperation partners to perform parts or all agreed services.
5. Delivery Deadlines
5.1 JTM digital shall make ecery reasonable effort to meet agreed completion deadlines.
5.2 Adherence to deadlines requires timely and complete provision of all necessary documents and approvals by the Customer, including the approved specification as outlined in Clause 4.2., and full copmpliance with the Customer’s cooperation obligations.
5.3 JTM digital shall not be liable for delays or cost increases resulting from incorrect, incomplete, or retrospectively modified information provided by the customer. Any additional costs arising therefrom shall be borne by the Customer.
5.4 For multi-component projects, JTM digital may make partial deliveries and issue corresponding partial invoices.
6. Fee
6.1 The amount of JTM digital's fee shall depend on the type and scope of the agreed services and shall be specified in JTM digital's offer. In the absence of an express agreement, an appropriate fee shall apply.
6.2 All prices are stated in euros, exclusive of value-added tax (VAT), and apply only to the respective order.
6.3 Travel expenses, daily allowances, accomodation costs, and other cash expenses incurred by JTM digital‘s employees shall be invoiced separately to the Customer at the applicable rates. Travel time shall be considered working time.
6.4 If, during support services, an error analysis reveals that the issue was caused by a third-party provider or by the Customer, the time spent shall be invoiced separately based on actual hours worked in accordance with current hourly rates, irrespective of any existing support contract.
6.5 Unless otherwise agreed in the offer, invoices shall be issued monthly in arrears.
6.6 Any objections to invoices shall be submitted in writing within seven days of receipt. Failure to raise any objections within this period shall be deemed acceptance of the invoice.
6.7 The Customer shall not be entitled to withhold payments on the grounds of incomplete deliveries, warranty claims or alleged defects.
6.8 In the event of delayed payment, JTM digital shall be entitled to charge default interest at a rate of 8 percent above the base interest rate (in accordance with § 352 UGB). The applicable base interest on the last calendar day of a half-year shall only apply to the following half-year. Furthermore, JTM digital may temporarily suspend ongoing services and withdraw from the contract after an unsuccessful reminder. The Customer shall bear all reasonable reminder, collection and legal costs incurred.
6.9 All prices and rates are subject to an annual index adjustment. JTM digital shall be entitled to adjust agreed fees to reflect changes in market conditions, with at least one month‘s prior written notice. The Consumer Price Index 2015 (base year 2015) published by Statistics Austria (or any successor index) serves as the basis for calculating the adjustments. The index figure for the month in which the agreement was concluded constitutes the reference value. Variations of up to three percent shall be disregarded. Once this threshold is exceeded upward or downward, the first index figure outside the applicable margin shall serve as the new basis for recalculation. Adjustments shall be calculated to one decimal place. Announced price adjustments shall not affect orders already placed.
7 Rights of Use, Intellectual Property and confidentiality
7.1 All documents provided by JTM digital in paper or electronic form (including offers, analyses, statements, expert opinions) remain the intellectual property of JTM digital until completion of the order. Except for documents directly related to order initiation, ownership shall transfer to the Customer upon full payment and completion. The Customer recognizes the rights of JTM digital to the documents, whether or not the documents are protected by copyright, trademark or competition law.
7.2 Upon full payment of the agreed remuneration, JTM digital shall grant the Customer a worldwide, perpetual, irrevocable, non-exclusive, unrestricted, sublicensable, transferable and assignable license to use and modify the work in any manner.
7.3 This license includes, without any limitation, the rights to reproduce, distribute, rent, broadcast via wired or wireless networks, publicly perform, present, recite and provide the Subcontracted Work.
7.4 Should JTM digital provide the Customer with software or other materials licensed by third parties (e.g. standard software from Microsoft), the applicable license terms of the respective licensor shall apply.
7.5 The trust-based relationship between the Customer and JTM digital requires strict confidentiality. Each party undertakes to protect all confidential information disclosed under this contract, to use it solely for fulfilling the agreement and to reproduce it only as necessary for performance. This requirement shall not apply to information already publicly known or lawfully obtained from third parties.
7.6 JTM digital, its employees and its cooperation partners undertake to maintain confidentiality regarding all non-public information procured during the performance of services.
7.7 The requirement to maintain confidentiality shall continue to apply after the termination of the contract. Exceptions apply only where disclosure is legally required or where the Customer has expressly released JTM digital from confidentiality in writing.
8 Data protection
8.1 JTM digital is the data controller within the meaning of the General Data Protection Regulation ("GDPR") for all personal data processed under this agreement. JTM digital is entitled to process personal data provided by the Customer for the purpose of fulfilling the contract, to store it electronically and to engage third parties as processors under Art. 28 GDPR , subject to appropriate contractual safeguards.
8.2 The requirement to maintain confidentiality shall continue to apply after the termination of the contract. Exceptions apply only where disclosure is legally required or where the Customer has expressly released JTM digital from confidentiality in writing.
8.3 JTM digital shall use appropriate technical and organizational measures, always adapted to the current state of the art, to secure the processed data, taking into account the nature, scope, circumstances and purposes of the processing as well as the different probabilities of occurrence and severity of the risks to the rights and freedoms of the data subjects, in order to ensure that data processing is carried out in accordance with the requirements of the GDPR. However, the Customer hereby agrees that (in the absence of a written agreement to the contrary in individual cases) electronic communication between the Customer and JTM shall take place digitally or vice versa in unencrypted form. The Customer declares that it is aware of the risks associated with the use of unencrypted electronic communication (in particular access, confidentiality, alteration of messages in the course of transmission).
9 Right of Withdrawal
9.1 The Customer withdraw from an order by registered letter or digitally signed email if JTM digital fails to meet the afreed deadline solely due to its own fault or unlawful conduct, and does not substantially complete the service within an adequate grace period, without the liability of the Customer.
9.2 Order cancellations by the Customer require and are only valid in connection with JTM digital’s prior written consent. Should JTM digital agree to the cancellation, it shall be entitled to charge a cancellation fee of 30 percent of the total project value not yet invoiced, in addition to all services rendered and costs incurred up to that point.
10 Termination
10.1 Unless otherwise agreed (e.g. for specific defined projects or project phases), either party may terminate the agreement in writing with 90 days' notice, effective at the end of a calender month.
10.2 JTM digital reserves the right to terminate the business relationship in whole or in part with immediate effect by written notice if:
• A change in laws, case law or other regulations
• A change in circumstances (including changes in ownership or corporate structure) renders continuation of the engagement unlawful or incompatible with professional or independece regulations.
10.3 Upon termination, the Customer shall reimburse JTM digital for all services rendered and expenses incurred up to the effective date of termination and compensate JTM digital for all resulting costs.
11. Liability
11.1 JTM digital shall be liable for the contractual result only to the extent agreed upon below and shall not be liable for interim reports, communications or emails exchanged during the project.
11.2 JTM digital shall be liable for damages only where intent or gross negligence is proven. Liability for slight negligence is excluded, including for the actions of subcontractors.
11.3 Under no circumstances shall JTM digital be liable for loss of profit, consequential damages, indirect losses or purely financial damages of any kind.
11.4 JTM digital's liability shall be limited to the order value, but not exceeding EUR 100.000. A single case of damage shall include all claims arising from the same service. In the case of multiple breaches based on the same professional error, liability remains capped at the order value or EUR 100.000, whichever is lower.
11.5 If the Customer believes that potential damage may exceed this limit, JTM digital shall, upon request and at the Customer’s expense, attempt to obtain supplementary insurance coverage in order to mitigate this risk.
11.6 Any claims for damages must be asserted in court within three months of becoming aware of the damage and no later than three years after the event giving rise to the claim.
11.7 If JTM digital engages a third party to provide services and informs the Customer thereof in writing, JTM digital shall be released from liability except for ist own proven fault.
11.8 Liability toward any parties other than the Customer is expressly excluded. If JTM digital consents to third party disclosure of its documents, no liability shall arise toward such third parties. Should a third party assert claims against JTM digital, the Customer shall fully indemnify and hold JTM digital harmless.
12. Loyalty, Non-solicitation
12.1 During the term of this agreement and for a period of six months thereafter, the Customer shall not employ or otherwise engage any JTM digital employee involved in the fulfillment of this contract. In the event of a breach of this obligation, the Customer shall pay a contractual penalty of EUR 50.000.
13. Final Provisions
13.1 JTM digital shall be entitled to include the Customer's name, logo, trademark and a general project description in its reference list. The Customer agrees to provide reasonable information for this purpose following prior notification by JTM digital.
13.2 The Customer may not assign rights or obligations under these GTC to third parties without JTM digital’s prior written consent. JTM digital may transfer its rights and obligations under this agreement to affiliated companies with debt-discharging effect, without separate consent from the Customer.
13.3 JTM digital utilizes advanced spam-filtering technology. Nevertheless, misclassification of emails cannot be entirely ruled out. JTM digital therefore does not guarantee that all Customer e-mails will reach the intended recipient.
13.4 The Commercial Court of Vienna shall have exclusive jurisdiction for all disputes arising between JTM digital GmbH and the Customer.
13.5 This agreement shall be governed exclusively by Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods and conflict-of-law rules.
13.6 Should individual provisions of these GTC be or become invalid, the validity of the remaining provisions shall remain unaffected.
13.7 In the event of force majeure - including but not limited to war, terrorism, natural disasters, fire, strikes, lockouts, work conflicts, embargos, government interventions, power outages, transport cancellation, telecommunication network blackouts or legislative changes occuring after contract conclusion – JTM digital shall be released from its performance obligations without being in breach of contract. Such circumstances shall justify an extension of delivery deadlines or a new delivery schedule.