Terms & Conditions
Terms & Conditions of NOUS Wissensmanagement GmbH ("NOUS") for application development
- NOUSGuide is a service provider in the
communication- and entertainment industry with its business focus on the
generation, conception, development, implementation as well as the
commercialization of Mobile Applications ("Apps") and multimedia
- These general terms apply to all current and future
services, which NOUS provides to the customer. General Terms of the
client shall only apply if they were recognized by NOUS in a written
- The present General Terms and Conditions apply to all
Services NOUS provides to the customer, even if the General Terms and
Conditions are not explicitly referred to in the specific contract. Any
terms and conditions of the customer shall apply only if expressly
accepted by NOUS in writing.
Subject-matter and scope
- The following may be subject of an order
- developing organizing concepts
- global and detail analyses
- developing individual programs
- purchasing exclusive licenses for the use of software products
- purchasing non-exclusive licenses for the use of software products
- commissioning support (adjustment support)
- maintenance of programs
- developing program carriers
- other services
- The exact scope of Services to be provided by NOUS shall be defined in
the contract with the customer. Unless otherwise agreed upon, NOUS shall
provide the Services during usual NOUS business hours. If a Service
Level Agreement [hereinafter referred to as “SLA”] has been agreed upon
with the customer, NOUS shall ensure provision and availability of the
Services as stipulated in the applicable SLA.
- The development of
individual organizing concepts and programs shall be carried out based
on the type and scope of binding information, documents, and support
which shall all be provided in their entirety by the customer. This
shall also include text data suitable for practical application as well
as sufficient test opportunities provided by the customer in time,
during normal working hours, and at its expense. If the system which is
made available for tests is already in live operation and used by the
customer, the customer shall be responsible for the backup of live data.
development of individual programs shall be based on a written
performance specification which is drawn up and made available by NOUS
based on the documents and information placed at the seller's disposal,
or which is drawn up in the framework of a joint workshop. Said
performance specification shall be confirmed by the customer. The
customer shall examine whether said performance specification is correct
and complete and add its note of confirmation. If changes are desired
later on, this may entail new agreements with view to deadline and
- Individually developed software or program adaptations shall
be subjected to an acceptance inspection by the customer no later than
two weeks after delivery. The acceptance inspection of the program shall
be confirmed by the customer in a protocol. (Inspection of correctness
and completeness based on the performance specification which was
accepted by the customer using the test data made available.) If said
two-week-period expires without that an acceptance inspection was
carried out by the customer, the software shall be considered accepted.
If the software is used by the customer in live operation, the software
shall in any case be considered accepted. Defects, which shall be
defined as deviations from the performance specification agreed upon in
writing, shall be sufficiently documented by the customer and reported
to the seller, who shall strive to eliminate the defects as soon as
possible. If there were significant defects of which the seller was
notified in writing, i.e. if live operation may not be started or
continued, a new acceptance inspection shall be carried out after the
elimination of the defects.
- If it becomes apparent in the course of
work that fulfilling the order according to the performance
specification is factually or legally impossible, the NOUS shall be
obliged to immediately notify the customer. If the customer does not
change the performance specification accordingly or does not create the
preconditions allowing the fulfillment of the order, NOUS may refuse to
execute the order. If the order cannot be fulfilled due to a failure on
the part of the customer or due to a subsequent change of the
performance specification by the customer, NOUS shall have the right to
withdraw from the order. The costs incurred until that point in time for
the seller's work as well as expenses and possible disassembly costs
shall be compensated by the customer.
- Program carriers,
documentation, and performance specifications shall be shipped at the
customer‘s expense and risk. If the customer desires additional
trainings and explanations, these shall be separately invoiced.
Insurance contracts shall only be concluded at the customer's request.
- NOUS shall endeavor to keep the agreed dates of performance (completion) as exactly as possible.
- The intended dates of performance can only be met, if the customer places all necessary work and documents, especially the confirmed performance specification, in their entirety at the seller's disposal at the established dates and if the customer fulfills its obligation to cooperate to the extent required. NOUS shall not be held responsible for delays in delivery and cost increases that result from incorrect, incomplete, or subsequently changed data and information or documentation provided by the customer. Such delays shall not result in NOUS’s being in default of delivery. Additional costs which result therefrom shall be borne by the customer.
- In the case of orders which comprise several units or programs, NOUS shall have the right to carry out partial deliveries and issue partial invoices.
Obligations of the Customers to Cooperate and to Supply Products and Services
- The customer shall tolerate and support all reasonable measures required for NOUS to provide the Services. The customer shall furthermore engage to take all the measures which are required to fulfill the contract and which are not part of the scope of Services.
- As far as the Services are provided on site at the customer’s, the customer shall make available the network components, connections, power supply, including peak voltage equalization, emergency power supply, space for equipment, workplaces and infrastructure free of charge and in the quantity and quality [e.g. health and safety protection, air conditioning] required by NOUS to provide the Services. In any case, the customer shall be responsible for the operational requirements of hardware as defined by the respective hardware manufacturer. Furthermore, the customer is liable for the safety of buildings and facilities, especially with regard to fire and water protection or unauthorized access. Special safety precautions in customer’s facilities [e.g. safety cells] are customer’s sole responsibility. The customer shall not be entitled to give instructions of any kind to NOUS employees and shall convey all requests relevant to Service provision exclusively to the contact person appointed by NOUS.
- The customer shall, at the agreed dates, in the form required and at its own expense, make available to NOUS all the information, data, and documents necessary to enable NOUS to fulfill the contract. Furthermore, the customer shall support NOUS, if so requested, in problem analysis and fault clearance, the coordination of processing jobs, and the harmonization of Services. Changes in the customer’s workflows, which might cause changes to become necessary in the Services, shall require prior consultation with NOUS with regard to the technical and commercial consequences.
- Unless explicitly included in the scope of Services, the customer shall provide, at its own expense and risk an appropriate net-connection.
- The customer shall keep the passwords and Log-Ins required for using the Services confidential and shall not disclose them to third parties.
- The customer shall keep all information handed over to NOUS additionally stored on the customer’s own premises to ensure that restoration will be possible in the case of loss or damage.
- The customer shall meet all the obligations to cooperate and assist in such a timely fashion that NOUS will not be obstructed in providing the Services. The customer shall make sure that NOUS and/or third parties commissioned by NOUS have access to the customer’s premises as required for providing the Services. The customer shall be responsible that all employees of the customer’s associated companies or its subcontractors will contribute accordingly to fulfilling this contract.
- If the customer does not meet the aforementioned obligations to cooperate and assist at the agreed dates or to the agreed extent, the Services provided by NOUS in spite of possible restrictions and limitations shall nevertheless be considered as provided according to the contract. Time schedules for the Services shall be modified accordingly. The customer shall separately reimburse any extra effort and/or cost arising to NOUS through such circumstances at the rates applicable at the time.
- The customer shall be responsible that the customer’s employees and any third parties for which the customer is accountable will treat the equipment and technologies used by NOUS as well as any assets surrendered to the customer with care; the customer shall be liable to NOUS for any loss or damage if NOUS has not caused such loss or damage negligently.
- Unless otherwise agreed, products and services as well as cooperation and assistance efforts shall be provided by the customer free of charge.
Intellectual Property (Copyright, Use and Attribution)
- The NOUS or its licensers shall be entitled to all copyrights of the agreed services (programs, documentation etc.). The customer shall just be entitled to use the software, after having made the agreed payments, only for personal purposes, only for the hardware specified in the contract, and only in compliance with the acquired number of licenses for the simultaneous use of the software on several workstations. With the present contract, only a non-exclusive license shall be acquired. The distribution by the customer shall be excluded in compliance with copyright law. The customer shall not, by its cooperation in the development of the software, acquire any rights going beyond the use established by the present contract. Every infringement of NOUS copyrights shall result in damage claims, whereby in such cases full amends shall be made.
- If the software does not include an explicit prohibition of the licenser or third parties, the customer shall be allowed to make copies for archiving and backup purposes if all notes with view to copyright and ownership are included unchanged in the copies.
- If the disclosure of interfaces is necessary in order to provide interoperability of the present software, the customer shall ask NOUS for said disclosure which will be carried out against payment. If NOUS does not comply with this request and a decompilation is carried out in compliance with copyright law, the results shall exclusively be used in order to provide interoperability. Abuse shall entail damage claims.
- If audio files, images or videos are provided for integration into the NOUS Guide or the application, the customer is responsible for securing the necessary copyrights and usage rights. Deliveries must be made in the format required for the NOUS Guide/application and according to schedule. The rights to the content developed by NOUS shall be held by NOUS. NOUS shall archive the produced content and be entitled to present the content for demo purposes, to publish it and to use it to promote the system.
- The customer agrees to use the designation “NOUS GUIDE” for the multimedia guide within the scope of the rental or in publications (press releases, internet, etc.). The NOUS logo on the NOUS carrying system may not be removed or masked. Likewise, the NOUS contact details in the Software imprint may not be removed.
- NOUS integrates the NOUS logo in the application and the imprint of the created application and is named as a development partner with the following information: NOUSGuide, Inc., www.nousguide.com, CEO name, project name, name of the developer and the designer. NOUS is entitled to provide the application for upload to a platform with the following keywords: NOUS, nous guide.
- The customer approves and supports a press release by NOUS after publication of the application or the use of NOUS Guides. This includes in particular the naming of NOUSGuide,Inc. and www.nousguide.com in press releases and articles for publication on the created applications. NOUS may include the customer into the reference list and cite the customer, including mapping of each application as a reference to www.nousguide.com and in marketing materials.
Right of rescission
- If the agreed delivery time is exceeded solely due to NOUS‘ fault or unlawful conduct, the customer shall be entitled to withdraw the order concerned by registered letter, if essential parts of the agreed service are not delivered within a reasonable grace period and there is no failure on the customer's part.
- Force majeure, industrial disputes, natural disasters, and transportation embargos as well as other circumstances beyond NOUS‘ reasonable control shall release NOUS from the delivery obligation and shall entitle NOUS to fix a new delivery date.
- Cancellations on behalf of the customer shall only be possible after having obtained the written consent of NOUS. If NOUS agrees to a cancellation, it shall have the right to charge, in addition to the already delivered services, a cancellation fee amounting to 30 % of the order value of the overall project which has not yet been settled.
Warranty and disclaimer
- Defect claims shall only be valid, if they concern reproducible defects and if they are filed in writing within four weeks of the delivery of the agreed service or, in the case of individual software, within four weeks of the acceptance inspection according to 2.5. If a defect claim is justified, the defects shall be eliminated within a reasonable period of time, whereby the customer shall enable NOUS to carry out all measures necessary for inspecting and eliminating the defect.
- Corrections and additions which, due to organizational shortcomings and program defects for which the seller is responsible, become necessary before the agreed service is delivered shall be carried out free of charge by NOUS.
- Costs of support, fault diagnosis, and the elimination of faults and malfunctions shall be borne by the customer, and other corrections, changes, and additions shall be carried out by NOUS against payment. This shall also hold true for the elimination of defects, if Program changes, additions, or other interventions were carried out by the customer itself or a third party.
- Moreover, NOUS refuses any liability in case of faults, malfunctions, or defects which are due to improper operation; changes of components of the operating system, interfaces, and parameters; the use of unsuitable organization resources and data carriers, if special organization resources and data carriers are prescribed; abnormal operating conditions (especially deviations from the installation and storage conditions) as well as transport damage.
- NOUS refuses any liability for programs which are subsequently changed by programmers of the customer or third parties.
- If changes of or additions to existing programs are subject of the contract, the warranty provisions shall only apply to said changes or additions. The warranty provisions concerning the original program shall not be revived thereby.
Limitation in Liability
- NOUS SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS OPPORTUNITY, DATA OR USE, INCURRED BY RED BULL OR ANY THIRD PARTY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- ANY LIABILITY OF NOUS, FOR WHATEVER LEGAL REASONs, IS LIMITED TO THE AMOUNT OF THE CONTRACT PRICE.
- The confidential information of each party is the exclusive property of that party. The parties agree that they have not acquired and shall not acquire any right, title or interest in the confidential information of the other parties. The mutual NON-DISCLOSURE-AGREEMENT apply.
- During the term of the contract and for another full year after termination of the contract, the customer shall neither directly or via third parties entices away employees deployed by NOUS to the provision of Services. For each violation of this obligation, the customer shall pay to NOUS a penalty amounting to twelve times the most recent gross monthly salary the employee received from NOUS.
- If individual provisions of this contract are or become invalid, this shall not affect any of the remaining provisions of this contract. The contracting parties shall cooperate in finding provisions which come as close as possible to the invalid provisions.
- Unless otherwise agreed, the legal provisions applicable between businesspeople shall exclusively be provisions according to Austrian law. This shall also be the case, if the order is executed abroad. In case of disputes, the local jurisdiction of the court which is competent at the seller's business domicile shall be agreed upon.