1. CONTRACT TERMS1.1 SCOPE OF APPLICATION
(a) All contracts shall be concluded with S&T Bulgaria EOOD (hereinafter "S&T") solely on the basis of these General Terms and Conditions (hereinafter "these Terms and Conditions") and the attached Supplementary Terms and Conditions ("Supplementary Terms and Conditions") applicable to the relevant supplies and services; these shall collectively form an integral part of any contract concluded by S&T.
(b) The Terms and Conditions shall also apply to any future transactions between the parties, even if not yet incorporated by reference into a future contract. The parties' mutual rights and obligations are determined exclusively in reliance on the substance of an order accepted by S&T and these Terms and Conditions, Supplementary Terms and Conditions and other S&T terms and conditions applicable to quotations.
(c) This applies in all cases, whether or not you incorporate by reference your own terms and conditions, such as terms and conditions for the purchase of goods and services, which may be inconsistent with these Terms and Conditions or Supplementary Terms and Conditions. Your own terms and conditions will not have any legal effect whatsoever, regardless of whether, when and how these were brought to S&T's attention. Agreements in derogation of individual sections of these Terms are applicable only for a specific agreed order and shall require S&T's prior, express and written consent to be valid.
(d) Even if S&T accepts your order by actually providing services, it shall not deemed to have accepted your business terms and conditions or terms and conditions of purchase which may be stated on the purchase order.
1.2 ORDER OF PRECEDENCE
Special regulations incorporated in Supplementary Terms and Conditions shall prevail over regulations incorporated in the Terms and Conditions. Where S&T simultaneously makes different deliveries or provides different services within the scope of an order and several Supplementary Terms and Conditions are attached to these General Terms and Conditions, those regulations of Supplementary Terms and Conditions apply, the subject-matter and function of which are closest related to the relevant supply and service.
1.3 QUOTATIONS, PURCHASE ORDERS, CONTRACT CONCLUSION
(a) All quotations and cost estimates which S&T may make shall be without engagement, non-binding and do not require S&T to provide any service.
(b) Similarly, information about S&T's services which can be found in catalogues, brochures, ads, price lists, websites and other online services shall be considered as non-binding information. Only information which S&T has specifically confirmed in its order response and the contractual specifications shall be deemed authoritative information.
(c) By placing a purchase order, you express your contract offer with binding effect.
(d) S&T may accept the contract offer incorporated in the purchase order within two weeks or reject the purchase order on technical, commercial or operational grounds. S&T will communicate the reason for its rejection to you.
(e) A contract will come into existence once S&T has accepted your order in writing or by fax or if S&T has fulfilled the purchase order by actually delivering the goods or services. Contract execution date shall be the date on which the acceptance notice is sent or, if services are actually provided, the date on which services are shipped. Subject-matter of the contract shall exclusively be the information in the order response or the contract, but not information stated in the purchase order.
2. DELIVERIES AND SERVICES
(a) Unless otherwise agreed, S&T will provide the contractual services in a manner as S&T may deem fit and in accordance with customary industry standards and the state of the art within S&T's normal working hours.
(b) In connection with the provision of its services, S&T will employ facilities and technologies on the basis of your qualitative and quantitative requirements as these have been determined on the basis of information provided by you.
(c) Unless otherwise agreed, S&T is not required to deliver a user manual, project manual or any other documentation or to train your staff. However, deliveries of standard products (software and hardware) shall be accompanied by the manufacturer's documentation in the language used by the manufacturer.
(d) S&T's supplies and services not covered by the scope of deliverables as laid down in the contract will be charged separately according to S&T’s generally applicable rates and tariffs. Unless expressly provided otherwise, the following supplies and services shall be additionally charged:
• services provided outside contractual service times or regular working hours;
• services provided for devices and/or accessory not covered by the contract as well as alterations, add-ons or other facilities of your computer system;
• troubleshooting due to operation errors, improper treatment and technical interference on your part or on the part of third parties or external influence beyond S&T's control and servicing due to your false reports;
• data backup and data restore;
• removal of computer viruses and necessary additional services;
• costs of wear parts and consumables (such as paper, ink ribbons, toners, detergents and data carries).
(e) S&T may fulfil orders by making partial deliveries/shipments or by providing partial services.
(f) S&T shall not be liable for quality defects of delivered products, with respect to the place of use you have selected or the technical requirements you have created for use. You shall be solely responsible for providing the space and creating the technical requirements which are necessary for the use of services provided by S&T.
(g) Instructions may be issued to S&T staff only by S&T itself, even if services are provided at your premises. S&T staff will not be integrated into your business operations.
(h) S&T will decide which staff to use for the service provision. A staff member may be exchanged against another with at least the same qualifications at any time, provided that objective reasons exist and prior notice is given to you.
(i) S&T may use third parties to provide services.
2.2 TARGET DATES AND DEFAULT
(a) Target dates and time-limits for deliveries and services mentioned in the contracts shall be binding only if you and S&T have designated these as binding by written notice; otherwise, all target dates/time-limits shall be non-binding.
(b) If there is any temporary and unforeseeable impediment to performance beyond S&T's control, the agreed time limit is extended and the agreed target date is postponed by the period during which such impediment persists. Performance impediments include, but are not limited to, government intervention, labour disputes, absence of means of transport, telecom facilities or energy or force majeure. If, in such an event, the initial performance target date has already been exceeded by four (4) weeks, both parties may terminate the contract.
2.3 CLIENT COOPERATION AND CLIENT DELIVERABLES
(a) In the context of our cooperation, you will cooperate and provide deliverables which are necessary to enable S&T to provide its services; you will fulfil these obligations free of charge and at your own risk and expense,
(b) These obligations include, but are not limited to the following:
• You will grant staff and subcontractors nominated by S&T access to your business and to the systems and programmes (and will procure the necessary access rights) and information which they need to do their job. S&T shall ensure that staff and subcontractors with access authorisation observe the security policies applicable at your business.
• You will nominate and disclose to S&T the name of a competent and responsible contact person who has authority to make decisions on department and cross-application level (contract, building infrastructure, software licences and updates, etc.).
• You will ensure that the agreed number of staff with the qualifications necessary for the project work is available.
• You undertake to procure that user data subject to change in the course of business processes (e.g. phone numbers, entry and resignation dates and transfer of employees etc) are immediately reported to S&T by written notice, if this could affect S&T's services (e.g. grant of user authorisations, availability of user, security etc).
• You will promptly notify S&T of any measures on your part which could affect the performance of the service or supply, such as support changes, power cuts, IT and telecom facilities reconstruction etc.
(c) You will cooperate with S&T in line with execution policies and target dates defined by S&T from time to time. Any inquiries which S&T may make in the context of service provision shall generally be answered within two work days. Should you need more time to process an inquiry in a particular case, you are required to timely inform S&T. S&T's execution schedule will be extended accordingly.
(d) If you do not cooperate, do not timely cooperate or do not cooperate as agreed, you shall be liable for any consequences arising therefrom (e.g. delays, additional expenses).
3. INTELLECTUAL PROPERTY RIGHTS
(a) Unless otherwise agreed, all rights to agreed services arising from patent and trademark law, utility model and semiconductor law and/or copyright law or arising otherwise from the creation of the services provided by you shall be due to S&T or its licensors.
(b) You will merely be granted the non-exclusive, non-transferable right to use these services after full payment of the agreed compensation and, in case of work, after acceptance of the work results to be provided in compliance with the contractual specifications at the agreed location for the contractual purpose and for the number of licenses you have obtained.
(c) Unless otherwise agreed or if the nature of an order letter imperatively provides otherwise, all other rights shall be reserved to S&T or its licensors; you may therefore not reproduce, alter, make available to third parties or use elsewhere than at the agreed site for the contractual purpose for a number of licenses you have obtained the software, data bases, graphics or other items with respect to which S&T or third party rights exist.
(d) This grant of rights does not cover standard products of S&T or third parties used in connection with performing the contract and the use of open source products. If rights to use these products shall be granted, these rights shall be granted in reliance on separate license contracts.
(e) You may not remove, process, alter or make illegible any property notice, brand, network identification or similar notice affixed to S&T's or third party services.
(f) Even if you are granted exclusive rights to use the output by virtue of a separate agreement, S&T certainly reserves the right to unrestrictedly use, alter, disseminate and exploit any general findings underlying the output created, processes used, process models, methods, know-how etc. as well as interim results that do not contain customer-specific information.
(a) All prices are net local currency prices to which statutory value added tax will be added. Unless otherwise agreed, prices are stated without engagement.
(b) Unless otherwise agreed, the compensation for the main service shall not include incidental expenses for auxiliary services such as the disassembly and removal of devices after use, costs for obligations arising under the Waste Management Act and the Regulation dated 2006 regarding the requirements for marketing of electric and electronic equipment and treatment of transport wastes from electric and electronic equipment, as amended from time to time, costs for the issuance of maintenance certificates, transport costs (e.g. freight, customs duties, insurance, commission), out-of-pocket expenses of S&T staff and subcontractors, if any, (e.g. for travels, overnight stays) or any other taxes and duties; you will be charged for these expenses separately.
4.2 TERMS OF PAYMENT, DEFAULT
(a) Unless otherwise agreed, invoices are due and payable upon receipt and within 14 days from the invoice date.
(b) All payments shall be made free and clear of expenses and deduction. Wire transfers are at your own risk and expense. Debiting and discount fees will have to be borne by you.
(c) If you are in default with payment, S&T may charge default interest as applicable from time to time.
(d) If you are in default with payment, S&T may also withhold all contractual obligations until you have fulfilled all payment obligations.
4.3 ADJUSTMENT OF COMPENSATION
Prices which were not contractually agreed to be fixed prices and all prices after the expiration of the minimum contract term defined in a contract are subject to indexation as follows:
• S&T may adjust the compensation at the beginning of a calendar year.
• S&T will notify you of any change of the compensation with two (2) months' prior written notice, referring to your right to give notice of termination. The compensation may be lawfully increased only if that increase is demonstrably based only on external factors such as higher inflation compared to the national Consumer Price Index or, failing which, a comparable index or on any increase in actual wages according to the collective bargaining agreement. Unless you give notice of termination within two months after receipt of that notice, the new compensation shall be deemed agreed. A price increase will be adjusted according to the following formula: adjusted compensation = previous compensation x index valid on 31 October of a current year / index valid on 1 January of the calendar year in which the relevant contract was concluded.
You may only set off claims which have been determined by judicial decision or acknowledged by S&T's written notice against S&T's claims.
5.1 WARRANTY PERIOD
(a) The warranty period is twelve (12) months from the transfer of risk date.
5.2 S&T'S DEFECT RECTIFICATION
S&T may procure warranty mainly by rectifying defects. S&T reserves the right to rectify a defect, at its election, by changing a service or by replacing it with a comparable service. If the rectification of a defect finally fails, you - subject to the legal requirements - may reduce the compensation, withdraw from the contract or give notice of termination in case of continuing obligations. Any payment of damages and reimbursement of expenses shall be governed by Section 6.
5.3 EXCLUSION OF WARRANTY
S&T is not required to provide services within the scope of the warranty clause if the relevant claims for service provision are asserted due to: (i) site conditions or environment that are incompatible with S&T's site specifications; (ii) your failure to observe the specifications or order documentation; (iii) improper operation; (iv) media, software, links, accessories, or other client or third-party products; (v) changes that were not approved or executed by S&T, unless you can prove that these changes were irrelevant for the occurrence of the defect (vi) abuse, negligence, accident, loss or damage during transport, damage due to transport, fire or flood, power malfunctions, client transport or other causes outside S&T's control.
5.4 THIRD-PARTY PROPERTY RIGHTS
(a) If a third party asserts claims against you on the grounds that any information, technical concept, specification, manual, software, data or material ("Material") delivered by S&T and used by you infringes upon that third party's rights to intellectual property and related property rights, S&T will hold harmless and indemnify you, provided that: (i) you have promptly notified S&T by written notice not later than 30 days after you have become aware of the claim or earlier, if applicable law so requires; (i) you have transferred the exclusive right to control the legal defence and all negotiations to S&T to the extent permitted by law and (iii) make available to S&T any and all information and assistance needed to defend those claims and to conduct settlement negotiations and grant power of attorney to S&T.
(b) If S&T has reason to assume or determines that any Material may have breached a third party's property rights, copyrights or any other proprietary rights, S&T may either elect to change that Material to make it non-infringing (with its usability or functionality principally being preserved) or to procure a licence for further use. If neither is a commercially reasonable option, S&T may terminate the right to use that Material, demand the return of that Material and refund to you the compensation paid.
(c) S&T will not hold harmless and indemnify you if you change or use the Material for a purpose other than that set out in this contract or in the order letter, provided that the infringement claim could have been avoided had an unchanged version of that Material been used. S&T will not hold harmless and indemnify you if an infringement claim is made in reliance on information, technical concepts, specifications, manuals, software, date or material not provided by S&T.
(d) This Section finally governs the remedies either party may rely on to assert any claim and loss in respect of indemnity in case of infringements of intellectual property rights and related proprietary rights.
Notwithstanding the reason for liability (e.g. culpable conduct under the contract, warranty, material defects and defects of title, guarantee, breach and non-fulfilment of contractual obligations and of ancillary contractual obligations, non-contractual liability, etc.), S&T shall be jointly and severally liable only as set out in this Section 6.
(a) S&T shall be unrestrictedly liable to you for any damage S&T caused to you by intent and gross negligence.
(b) S&T shall be liable to you for any direct damage verifiably and culpably caused to you due to a breach of a material contractual obligation as follows: S&T'S liability per damage shall not exceed 10 % of the amounts paid by you to S&T hereunder in the year in which the damage occurred; S&T'S maximum liability shall not exceed the contract value, irrespective of the number of claims.
(c) To the extent permitted by law, S&T disclaims any further liability, including liability for indirect damage, consequential damage, extra expenses or claims of third parties, loss of data, loss of goodwill and reputation and lost profit or unrealized savings as well as business interruptions of any legal nature.
(а) Unless the contract provides for a specific term, it may be terminated by either party with three (3) months’ written notice, except if a contract, by its very nature, ends through the fulfilment of the parties mutual service obligations (purchase contract and contract for work and services).
(b) Notice of termination shall be given in writing. Compliance with the time-limit and written form requirement is not ensured if notice is given by facsimile, e-mail or any other electronic transmission.
( c ) The parties may at any time terminate a contract immediately for good cause by unilateral declaration. Good cause shall be deemed to exist in particular if:
• the other party is subject to an insolvency event. For the purpose of this clause, "insolvency event" means: an initiation of bankruptcy proceedings, a postponement of bankruptcy, a declaration of insolvency, an order to prepare a list of assets or an inventory of those assets that are part of the bankrupt's estate (Konkursinventar), a request for a respite to be granted by a probate court (Nachlassstundung), a liquidity decision, appointment of an administrator, any pledging, the discontinuation of payments or any other event which objectively implies that the other party is no longer able to fulfil its obligations;
• either party breaches material confidentiality obligations or other material contract terms despite a written reminder;
• an event of force majeure or a similar event continues for more than 90 days.
(a) The parties shall keep confidential any information and data obtained in connection with the execution of an order, unless the relevant other party has issued a written release.
(b) This confidentiality obligation shall not apply to information which
• the other party has lawfully received from a third party; or
• had already been public domain upon conclusion of the contract or subsequently became public domain without any breach of the obligations hereunder; or
• was independently developed by the party that is subject to confidentiality; or
• pertains to methods, ideas, know-how and conceptions of a third party (third-party know-how) which that third party lawfully brought to the other party's attention, even if this third-party know-how is accidentally consistent with confidential information as defined herein; or
• shall be disclosed by virtue of mandatory laws.
(c) You expressly agree that your data relating to the order placed, including personal data pertaining to a certain or identifiable natural or legal person, be processed by S&T for purposes of its intra-group customer relationship management and be transmitted to S&T'S affiliated companies. You may revoke that consent at any time.
(d) Subject to the confidentiality obligation set out herein, S&T may use your name as well as information about the services provided as a reference or for marketing purposes both within and outside Bulgaria. This includes, but is not limited to, any use in marketing brochures, on websites, in project applications, press and internal releases as well as internal and external presentations where S&T'S relevant clients are listed. Any additional use in a journal contribution or as an expression of opinion in a factual context shall require your prior consent.
(e) The obligations referred to in Section 8.1 shall also survive up to three years after termination of the contract, unless that obligation survives for an indefinite time or for a longer period of time by virtue of mandatory laws.
8.2 TRANSFER OF RIGHTS AND OBLIGATIONS
The parties may not transfer rights and obligations to third parties without the other party's consent.
8.3 WRITTEN FORM
Any contractual agreement and any amendment and modification thereof as well as any other understanding shall be made by a written instrument and signed by both parties, provided that agreement shall be bilateral. Any waiver of the written form requirement shall also be made in writing.
8.4 PLACE OF JURISDICTION, APPLICABLE LAW
(a) All disputes that may arise between the parties shall be exclusively governed by the Bulgarian law, without giving effect to conflict of law rules and the UN Sales Convention regarding the contracts for international sale of goods.
(b) All disagreements, disputes and claims that may arise - also in the future - shall be decided by the competent Bulgarian court.