General terms and conditions of business

Scope

All offers, orders, deliveries and services of Quantum Science & Systems GmbH, hereinafter referred to as QSS, are exclusively subject to the following terms and conditions of business, which are either requested from the office or are available on the nubes.pro website at any time. Other terms and conditions of the customer, which are not expressly accepted in writing, are not binding for QSS in any case. Oral, telegraphic, telephone or other electronic agreements shall only be effective after written confirmation.

QSS expressly reserves the right to change the present "General Terms and Conditions", in this case the changed version will be sent to the contracting party. The changes are considered as approved as soon as they have been signed by the contracting party or if they are not objected to within two weeks after receipt.

Conclusion of contract

Offers of QSS are subject to confirmation and non-binding. A contract is only concluded with the written confirmation of the orders placed with us. The contracting party acknowledges the "General Terms and Conditions" of QSS by placing an order, by acceptance of the delivery or by inclusion in our customer file.

Patent rights and copyrights

QSS reserves the right of ownership and copyright of drafts, circuit diagrams, construction drawings, descriptions and similar documents as well as of the entire software. Without written consent these products may not be copied or made accessible to third parties in any other way. The contracting party undertakes to indemnify and hold QSS harmless for reasons of infringement of possible patent or other industrial property rights of third parties.

Delivery and delivery periods

Unless a fixed date has been expressly agreed, the delivery times announced are not binding, but will be adhered to the best of our ability. For delayed or not feasible services, which are caused by force majeure, lack of material or other unforeseen incidents, a liability to pay compensation is excluded. Partial deliveries with separate invoicing are possible.

Ordered goods must be collected or accepted within 5 working days of notification, otherwise the costs of the delay must be borne by the contractual partner. If delivery to the address provided by the contractual partner is impossible, the goods are deemed to have been accepted, and the contractual partner must bear the costs incurred as a result.

Shipping

The dispatch is carried out from the registered office of QSS or the registered office of the subcontractors commissioned by QSS on account and risk of the contracting party. With the handing over of ordered goods to the persons carrying out the transport, but in any case when leaving the factory/warehouse, the risk is transferred to the contractual partner. If dispatch or handing over is delayed for reasons for which QSS is not responsible, the risk is already transferred to the Contract Partner from the day of readiness for dispatch.

Resignation

All agreements concluded between customers and employees of QSS are subject to the condition precedent that the management agrees to them. QSS is free to deny the approval of legal transactions initiated by their representatives/employees. The contractual partner has to be informed about this within 10 working days.

Prices, terms of payment, interest on arrears

All prices and additional costs are calculated according to the product and service costs, expenses and currency exchange rates valid at the time of the offer. Errors, changes and misprints are reserved. Current unit prices can be requested from QSS at any time and always apply in the latest version.

If the wage or production costs, collective contractual regulations in the industry, due to internal agreements or other costs necessary for the calculation of relevant cost centres or for the production of services such as those for materials, energy, transports, external work, financing etc. change, QSS is entitled to increase or reduce the prices accordingly; the same applies to manufacturer-side changes of the production costs as well as the purchase costs for the goods. QSS is entitled to change the prices and additional costs at any time if the market price of the contractual goods changes (increases) as long as the goods have not been delivered or the contracting party has not yet made payment. The prices are net and exclusive of value added tax and shipping costs. All shipping costs, in particular packaging, transport costs and transport insurance, environmental taxes, as well as the statutory value added tax shall be borne by the contractual partner.

Unless otherwise stated, the invoice date for goods is also the date of dispatch. In the case of services, invoicing may be made either upon performance or at the end of a calendar month.

Subject to a positive credit assessment, a payment period of 7 days net is granted.

Otherwise, delivery will only be made against cash in advance or cash on delivery.

A deviating term of payment requires a written agreement.

Bills of exchange and cheques will only be accepted after express written agreement.

QSS is entitled to cancel payment terms and to make open amounts immediately due if the creditworthiness of the purchaser deteriorates considerably or if a settlement or bankruptcy procedure is initiated over the purchaser's assets or if a corresponding application is rejected due to lack of cost-covering assets.

In the case of projects consisting of several partial deliveries, corresponding partial invoices will be issued for the individual partial deliveries, which will be settled within the respective payment period for the invoice. At the beginning 1/3 down payment of the total project sum is to be made. If the partial deliveries are made continuously in projects, e.g. in software development, the partial amount of the total order which corresponds to the progress of the project in percent according to the current project plan can be offset. For the final acceptance, 10% of the total project remains, which is charged according to this. After that, the project is considered completed. Subsequently, further improvements to the delivery item can be made either by warranty (e.g. bug fixing for software) or by extension orders.

If the agreed payment deadline is exceeded, default interest of 9.2% (§ 456 UGB) per month will be charged.

Offsetting or withholding of payments due to existing or alleged counterclaims - for whatever reason - is not permitted. This shall not affect the provisions of § 6 para. 1 KSchG.

If devices or systems cannot be handed over, installed or put into operation due to circumstances for which QSS is not responsible, payment must still be made as if the deliveries, installations or putting into operation had been carried out at the scheduled time.

In the case of delay with his contractual obligations the Contract Partner undertakes to reimburse QSS for the reminder and collection expenses arising from this, whereby the Contract Partner undertakes in particular to reimburse at the most the remuneration of the collection agency involved, which result from the regulation of the Federal Minister for Economic Affairs about the maximum rates of remuneration due to collection agencies - in the respectively valid version, Federal Law Gazette 1986/141. If QSS is upstream or alone operates a reminder system, the contracting party is obliged to pay a contribution of € 11,-- per reminder and an amount of € 4,-- per half-year for keeping the debt in the reminder system as evidence.

Retention of title

The products delivered by QSS remain their property until the complete payment, in case of a treatment or processing of the delivered goods this also applies to the new goods. The contracting party may only sell the delivered goods or the new goods resulting from their treatment or processing (in short: conditional products) in the ordinary course of business. The contracting party already now assigns the claims to which he is entitled from the resale or from another legal ground concerning the reserved products to QSS as security. He is authorized to collect the assigned claims as long as he meets his payment obligation towards QSS according to the contract. The contracting party has to inform us immediately about possible access of third parties to goods subject to retention of title or to the claims assigned in advance by the contracting party and handing over corresponding documents. The costs of a possible intervention shall be borne by the contractual partner.

Warranty and liability

The warranty provisions of Austrian law shall apply, in addition to the following provisions.

Warranty is given for the faultlessness of the object of purchase according to the respective state of the art. QSS is entitled to free itself from claims for cancellation of the contract or for adequate reduction by exchanging the defective item for a faultless one or by carrying out an improvement or by adding the missing item within an adequate period of time, all this at choice, the invoice value can also be replaced.

Warranty is excluded, however, if the contractual partner undertakes modifications or repairs to the delivered goods on his own initiative. QSS is not liable, if foreign parts are improperly installed in delivered devices and damages or defects occur through this; this also applies to improper or faulty installation of foreign software. Warranty is also void if despite proper handling of the devices by a technician of QSS they are put into a faulty condition during handling.

If deliveries or services are provided by a subcontractor, he is directly liable to the customer for all deliveries and services provided by him there. The subcontractor has to indemnify and hold harmless QSS in this case. However, QSS expressly reserves the right to make the subcontractor liable for claims of the customer to QSS, which arise from improper action or from grossly negligent or deliberate fault of the subcontractor.

For measurable services guaranteed by QSS, such as delivery times, reaction times and similar, it is valid that these are kept to the best of QSS' ability, but in a small percentage of the total number of these services a failure to keep this promise can occur due to adverse circumstances or force majeure. This non-compliance however does not represent a breach of contract by QSS as long as this does not happen three times in a row.

Complaints of any kind have to be made in writing immediately after receipt of the goods. The warranty period is 2 years, if not otherwise noted on the invoice, but for business to business transactions it is limited to 6 months. The liability, as well as for other performance failures, is in any case limited to intent and gross negligence.

For products which have not been manufactured by QSS the warranty obligation is limited to the assignment of the warranty claims against the respective producer. All costs connected with rectification or replacement delivery (e.g. transport costs) are borne by the contractual partner

The liability for consequential damages, especially for loss of data, is excluded.

Standard - Service Levels for Services

Unless otherwise agreed, the service levels of QSS are considered as an integral part of any activity of technicians or other employees as well as subcontractors of QSS as follows

Service levels are guaranteed at an agreed place and at agreed times. The principle applies that the guarantee to maintain a service level can be maintained to a high percentage (>98%) at human discretion and can be invalidated by unforeseeable events such as force majeure. In such cases QSS will report to the customer as soon as possible and propose an alternative scenario.

1st level support

Non-critical incidents: 1 business day until response; troubleshooting is initiated immediately and then occurs depending on the error; usually within one more business day.

Critical incidents (mission critical): 4 hours until reaction; error correction is then initiated immediately and, in case of non-solvability, transferred to 2nd level support within 1 hour.

2nd level support

Errors that cannot be fixed in 1st level support are moved to the 2nd level. These employees do not need to have any contact with the service recipient. The finished message is sent back to the 1st Level Support, which informs the service recipient about it and, if necessary, accepts the service. The 2nd Level Support must solve all errors which cannot be covered by 3rd parties (suppliers of QSS or the service recipient) within the 3rd Level Support.

Mission-Critical Incidents are preferred by 2nd Level Support to Non-Mission-Critical Incidents in processing.

3rd level support

If an error cannot be solved with reasonable, financial effort without the help of a 3rd party (e.g. manufacturer), the 3rd level support will take care of the correction. The lead times depend largely on the respective 3rd party. After completion, the 3rd Level Support hands over the result to the 1st Level for delivery to the service recipient.

Definition of Mission Critical:

These types of incidents considerably impair the business of the potential service recipient. These are e.g. the total failure of email or internet or the failure of essential parts of the merchandise management system such as deliveries from the warehouse.

Collateral agreements and partial effectiveness

All subsidiary agreements and amendments must be made in writing. Should the above terms and conditions be partially invalid, both the contract based on them and the other terms and conditions remain unaffected.

Many of the things regulated in this contract, especially the service levels can be changed and separately regulated with QSS for the respective application case. As long as these changes have not been signed by all contracting parties the present terms of contract are valid for all business cases in which QSS is directly or indirectly involved.

Re-export of products

If the products in question are subject to technology transfer control for foreign technology goods (Federal Law Gazette 184/1984, 11/1985, AHG-Nov. 1988 Federal Law Gazette 377 - as amended), the sale of the products in question shall only be subject to a legally binding transfer of the following obligations: The re-export of such goods - even in processed or dismantled form - is only permitted with the consent/approval of the competent Federal Ministry for Economic Affairs. This obligation is to be imposed on every domestic buyer with the further obligation to impose it on any other domestic buyers.

The contractual partner is obliged to provide the approval himself and to commission the carrier responsible for the export.

Data protection

The contracting party agrees to the storage of personal and/or company-related data, the same applies to QSS. Furthermore, the contracting party is not allowed to pass on data of any kind about QSS itself, its employees or about QSS's business partners to third parties without explicit, written permission of QSS. Otherwise the data protection regulations of Austrian law apply.

Place of jurisdiction and place of performance

The place of jurisdiction for all legal disputes arising from the business relationship, and about the origin or effectiveness of the contract and place of performance for services to be rendered to QSS is Vienna. For all disputes between QSS and the business partners Austrian law applies.

Status: June 2020