General Terms and Conditions IXOLIT Group
- General, scope of application, authorization to modify
- Conclusion of contract, scope of performance
- Client’s duties to collaborate and provide resources
- Performance catalogue
- Additional provisions for software development
- Additional provisions for IT support and maintenance services
- Additional provisions for consulting services
- Additional provisions for IT infrastructure Deliverables
- Usage rights, copyright law, and licensing
- Delivery, Acceptance
- Misrepresentation, Warranties
- Force majeure
- Limitation of Liability
- Remuneration and payment terms
- Term of contract and termination notice
- Data protection
- Other rights and duties
- Final provisions, Jurisdiction
1. General, scope of application, authorization to modify
1.1. IXOLIT Group, comprising
- IXOLIT Holding GmbH, FN 493120b,
- IXOLIT GmbH, FN 213107v,
- IXOPAY GmbH, FN 451099g,
- kiwi suite GmbH, FN 475863z (each Mariahilfer Straße 77-79, 1060 Vienna), and
- IXOPAY LLC, EIN 90-1013241 (215 North Eola Drive, 32801 Orlando, Florida, USA),
(jointly "IXOLIT Group") shall provide work and services in the areas of information and communications technology (“Deliverables”).
Within the scope of these General Terms and Conditions (“GTC”), the term "GROUP MEMBER" refers to the respective group member maintaining or entering into a contractual relationship for the provision of Deliverables with the respective contractual partner ("Client").
1.2. The GTC shall apply to all Deliverables provided by the GROUP MEMBER to its Client. The GTC form an integral component of each contract concluded by the GROUP MEMBER unless expressly agreed otherwise in writing. The GROUP MEMBER expressly objects to supplementary or altering contractual terms, as well as to any GTC of the Client. These shall only apply if they are acknowledged by the GROUP MEMBER expressly and in writing. Employees of the GROUP MEMBER are not authorised to make oral subsidiary agreements or oral covenants.
1.3. Legally binding communication with the Client (inter alia invoicing) is primarily handled via email at the email address (i) as mentioned in the Transaction Document; (ii) in absence of such: as mentioned in Client website's imprint; (iii) only if Client's email address cannot be ascertained clearly by alternatives (i) and (ii): via registered letter to the business address as last notified by Client (jointly "Delivery Address"). Client shall notify GROUP MEMBER of any change of its Delivery Address without undue delay, in absence of which declarations sent to the Delivery Address as ascertained under (i) to (iii) shall be deemed to have been served effectively.
1.4. The GTC apply in its latest version as published on the GROUP MEMBER's website at the time of conclusion of the contract. Please save a copy of the GTC for your records as IXOLIT does not retain a copy for you. In the event of continuing obligations, the GROUP MEMBER shall be entitled to unilaterally modify the GTC applying as of the effective date: The modified GTC shall be sent to the Client. The modified GTC shall take effect if Client does not object to them in writing within an objection period of four weeks after receipt of the notice of modification or continues to use the respective Deliverable(s). In case of an objection, the GROUP MEMBER can terminate contracts to which the previous GTC apply for cause, jointly or individually, on the first day of the month following the objection. Provided that the GROUP MEMBER does not terminate the Agreement with the Client, the previous GTC shall continue to apply to this Client.
1.5. Unless expressly stated otherwise, all quotes of the GROUP MEMBER shall be non-obligatory and all cost estimates shall be non-binding. The GROUP MEMBER reserves the right to invoice a reasonable fee for cost estimates and individual quotes in the event that the Client refrains from placing an order.
1.6. Client confirms to act as entrepreneur under the Austrian Commercial Code ("UGB") and that the Agreement is not entered into in order to create preliminary conditions for a business in the meaning of § 1 sec 3 of Austrian Consumer Protection Law ("KSchG"). Client further warrants that, within its sphere, the Deliverables are not used by minors, consumers or unauthorized third parties.
2. Conclusion of contract, scope of performance
2.1. An order placed by the Client via internet or email constitutes an offer to the GROUP MEMBER for the conclusion of a contract. A contract is effective on the date of acceptance of the "Order Document" (e.g. Purchase Order, Master Services Agreement, Order Confirmation and respective appendizes) by the GROUP MEMBER. Acceptance shall be considered to be given if the GROUP MEMBER (i) submits the countersigned Order Document (ii) makes Deliverables available and submits Access Data, or (iii) delivers, provides or performs Deliverables in any other way to the Client (whichever event occurs first). The GTC, the Order Document and applicable appendizes jointly form the Agreement".
2.2. The type and scope of the Deliverables of the GROUP MEMBER shall be determined by the conditions of the respective Order Document including any statement of work ("SOW") and attachments contained therein. Oral modifications or additional agreements shall not be binding for the GROUP MEMBER.
2.3. The GROUP MEMBER shall not be required to provide Deliverables other than those defined in the Order Document. If new requirements of the Client make it necessary to change the Deliverables, respectively the technologies utilised, then the GROUP MEMBER shall submit a separate quote at the request of the Client. If the Client makes use of Deliverables of the GROUP MEMBER beyond the respectively agreed scope of performance without concluding a separate agreement, then the GROUP MEMBER shall invoice these services according to the actual expenditure for personnel and materials at the currently applicable rates. In particular, this shall include performance outside the ordinary Business Hours, the analysis and resolution of malfunctions or Errors that arise due to improper handling or operation by the Client or due to other circumstances for which the GROUP MEMBER is not responsible. The provision of training and documentation shall only be owed if and to the extent that they are expressly agreed in the Order Document. If the GROUP MEMBER should provide, free of charge, Deliverables that are not a contractual obligation, then these may be discontinued at any time without notice.
2.4. The individual Deliverables are separable and shall be invoiced separately. Deliverables of the GROUP MEMBER shall not be regarded as Projects and shall be viewed as separate from any Client projects. They shall only form components of a Client’s project or of a project implemented by a third party on behalf of the Client with express written agreement. This shall also apply if, from the Client’s point of view, the Deliverables are incorporated technically, organisationally, and/or temporally into an IT project. The Client’s duties with regard to the GROUP MEMBER shall be neither suspended nor limited due to delay in such a project.
2.5. The GROUP MEMBER shall provide its Deliverables during its ordinary Business Hours. These are Mon. - Thu. 03:00 - 11:00 EST (09:00 - 17:00 CET), Fri. 03:00 - 09:00 EST (09:00 - 15:00 CET) (“Business Hours”).
2.6. The GROUP MEMBER shall be entitled to modify the equipment and means utilised to provide the Deliverables at its own discretion if no negative impact to the Deliverables can be expected from this. The selection of employees who shall provide the Deliverables shall be made by the GROUP MEMBER. The GROUP MEMBER shall be entitled to replace assigned employees with other, appropriately qualified employees at any time.
2.7. When fulfilling the Agreement, the GROUP MEMBER can be represented by other qualified third parties, whether natural or legal persons (“Subcontractor” or “Vicarious agent”), appointed by the GROUP MEMBER.
2.8. If the scope of performance also includes Third-Party Services such as purchase of components from, and delivery of these by, third parties and/or delivery of third-party software (“Third-Party Services”), the GROUP MEMBER shall identify, respectively note, these accordingly in the quote. By placing an order, the Client authorises to commission these Third-Party Services on behalf of and for the account of the Client. In this case, a direct contractual relationship shall form between the third party and the Client. Any claims arising from this relationship shall be handled directly and exclusively between these parties. Alternatively, the GROUP MEMBER reserves the right to commission the Third-Party Services in its own name, but for the account of the Client. In this case, the claims of the Client with regard to Third-Party Services shall be limited to the assignment of any claims of the GROUP MEMBER against the third-party to the Client.
2.9. The GROUP MEMBER reserves the right to modify or make improvements to Deliverables that are contractually agreed with the Client, provided that such a modification or improvement is customary, is necessary due to statutory provisions, or is reasonable for the Client with consideration to the interests of the GROUP MEMBER.
3. Client’s duties to collaborate and provide resources
3.1. The proper provision of Deliverables by the GROUP MEMBER presupposes qualitatively flawless, on-schedule support by the Client, respectively by the Client’s qualified personnel. The Client undertakes to support all measures that are necessary for the GROUP MEMBER to provide the Deliverables. If the IT structure of the Client does not fulfil the technical requirements of the GROUP MEMBER for the provision of Deliverables and operation, then adjustments, if any, shall be made by the Client. To the extent that the cooperation and/or provision of resources by the Client or by third parties is necessary for the performance of the Agreement, the Client shall be obligated and responsible to ensure that the performance of all measures to cooperate or provide resources, as appropriate or necessary, is on time and carries no cost for the GROUP MEMBER. The GROUP MEMBER shall inform the Client of the Client’s duties to cooperate and provide resources in a timely manner and in writing.
3.2. Unless this was expressly agreed as the scope of performance, the Client must procure, maintain, and keep in good working order the technical operational environment, respectively infrastructure, necessary for the provision and use of the Deliverables of the GROUP MEMBER at its own cost and risk. This shall apply in particular to the utilisation and appropriate processing of the Deliverables of this Agreement via long-range data transmission (telephone, fax, email, Internet connection). In particular, the Client shall take suitable technical measures to protect its system against third-party access and to identify malware or malicious programs. Additionally, the Client must ensure the performance of a regular back-up of its data independently and in such a way as to prevent data loss. In particular, the Client shall carry out such data back-up before each support or maintenance measure. The GROUP MEMBER itself shall also store the data and information transmitted to the Client so that it can be reconstructed at any time in the event of loss or damage. The GROUP MEMBER shall not be obligated to perform any back-up beyond this. In the event of data loss, the Client must provide the data again to the GROUP MEMBER to the extent necessary for the provision of Deliverables by the GROUP MEMBER immediately and at no cost, and shall procure the condition of the data that corresponds to that of the last available backup for the GROUP MEMBER .
3.3. The Client must inform the GROUP MEMBER pro-actively and in writing of all characteristics of its IT structure, its operational organisation, and the software that it uses, as well as of all circumstances that could prevent, delay, or otherwise negatively impact the Deliverables. In particular, the Client must submit to the GROUP MEMBER the documents and information needed in connection with the Deliverables without delay and in their entirety.
3.4.The Client must ensure that its employees and the third parties that are attributable to it treat with care the equipment and technologies employed by the GROUP MEMBER as well as any assets relinquished to the Client. The Client shall be obligated to treat as confidential the passwords / log-in data necessary for the use of the Deliverables of the GROUP MEMBER. The Client shall be liable to the GROUP MEMBER for any damage arising from improper handling of the released materials, equipment, technologies and/or passwords / log-in data.
3.5. If necessary for the provision of Deliverables, the Client shall deliver to the GROUP MEMBER prior to commencement of its activities a complete and current network documentation (network plan) and production descriptions for the employed hard- and software.
3.6. The Client shall be obligated to review without delay the software provided to it as part of a Deliverable. This shall also apply in particular with regard to any malware or malicious elements. Provided that the software complies with the Agreement, the Client must install or respectively deploy these without delay, unless the GROUP MEMBER has pledged the implementation to the Client in the Order Document or it its made available online.
3.7. The GROUP MEMBER shall not be obligated to verify the quality, respectively the absence of Errors, nor the accuracy, respectively completeness, of cooperative performances or resources provided by the Client.
3.8. The Client shall perform in a timely manner all cooperation duties by which it is bound so as not to obstruct the provision of Deliverables on the part of the GROUP MEMBER. The Client shall be responsible to ensure that its employees or third parties appointed by the Client, cooperate in the performance of the Agreement. In the event of non-fulfilment of a duty of cooperation or provision of resources, the GROUP MEMBER shall grant the Client a reasonable grace period up to a maximum of 14 days to remedy this and fulfil these duties retroactively. If delays and/or additional costs result from the improper or untimely cooperation of and/or provision of resources by the Client, the GROUP MEMBER can demand modifications to the agreed schedule and remuneration, notwithstanding further legal rights. The prices of the GROUP MEMBER that are applicable at the time shall apply to the remuneration for the additional costs. Conversely, the Client shall not be entitled to assert claims against the GROUP MEMBER due to delay and/or additional costs for which the Client is responsible. If the Client fails in its duty in spite of the setting of a grace period, the GROUP MEMBER shall be entitled to withdraw from the contract with immediate effect. In this case, the fee accruing up until the first opportunity to terminate of the Client shall be automatically due upon the dissolution of the contract.
4. Performance catalogue
4.1. The respective GROUP MEMBER can provide Deliverables for the Client in the areas of Information technology, in particular development and provision of IT infrastructure; development and implementation of software, including support, respectively independent implementation, of Austria-wide and international IT roll-outs; ASP Services; maintenance and support services; supply of (third-party) standard software; as well as IT consulting, in particular development of organisational concepts and technical specifications; Client relationship management; promotion- and Client-support services; risk management; as well as marketing, online advertising, and realisation of the consulting outcomes.
4.2. In principle, the Client has no claim to a specific completion date or a specific response time as part of the provision of Deliverables, unless this is expressly agreed in writing in the Agreement. Even in this case, the Client must accept instances in which deadlines are exceeded to a minor extent without being due a claim for damage compensation or right of rescission.
4.3. The place of the provision of Deliverables shall be determined by the GROUP MEMBER according to technical, spatial, and organisational conditions. The GROUP MEMBER can stipulate the actual place of performance from amongst several possibilities at its own discretion.
4.4. The period of performance shall be stipulated in writing by the GROUP MEMBER and the Client in the contract. Otherwise, the GROUP MEMBER shall begin to provide the Deliverables as soon as possible, but in any case within 30 days from the conclusion of the contract.
4.5. Deliverables provided shall be documented by GROUP MEMBER's records of working hours unless a flatrate agreement applies for the respective Deliverable.
4.6. In the event that software is purchased, no continuing services from the GROUP MEMBER, such as, in particular, maintenance and support services, shall be covered. These shall be ordered separately by the Client.
4.7. In the event that the Client leases software under a contract, the maintenance and support services specified in the Order Document shall form a compulsory component of the contract and shall be included in the fee.
5. Additional provisions for software development
5.1. With (individual) programming, in addition to the general obligation of cooperation, the Client must create a complete user requirements document and must define the framework conditions for the (individual) programming. The Client shall be bound by this user requirements document and by these framework conditions. Modifications to the user requirements document and to the framework conditions shall only be binding for the GROUP MEMBER with its written consent and may result in deviations from the deadline and from price agreements for which the GROUP MEMBER is not responsible. Unless otherwise agreed in the Order Document, as from receipt of the user requirements document the GROUP MEMBER can request a deposit of up to 20 % of the agreed fee, in case of (individual) programming to be carried out within three months of up to 40 % of the agreed fee. If the Client does not comply with this request completely and/or in due time, the GROUP MEMBER can refuse its performance and, after having set an adequate grace period, declare the cancellation of the contract.
5.2. The GROUP MEMBER shall not be obligated to review the user requirements document for accuracy, completeness, or feasibility and does not assume any obligation to warn the Client in this regard (Section 5.4 remains unaffected by this). The GROUP MEMBER shall endeavour to fulfil the user specifications as well as possible. If the location of the Client is defined as the place of performance in the Order Document, the Client undertakes to prepare the development environment, the programming tools, and the testing environment. The Client furthermore undertakes to prepare the interfaces for data import and export as well as real data for testing purposes. The obligation of the Client to provide adequate protection against unauthorised access and adverse effects from the outside shall also apply to the development and testing environment. If the Client is already operating live the system provided for the test, the responsibility for securing the real data shall lie exclusively with the Client.
5.3. Insofar as stipulated in the Order Document, the GROUP MEMBER shall take over the creation of the user requirements document pursuant to Section 5.1 on the basis of the information and data provided by the Client for a separate fee (no obligation to provide a binding schedule for implementation (roadmap) shall exist in absence of a prior separate agreement). In this case, the Client shall review the user requirements document provided for accuracy and completeness and endorse it. The provisions of Section 5.2 shall apply by analogy.
5.4. Should it become apparent in the course of the provision of Deliverables that such provision based on the user requirements document is actually or legally impossible, the GROUP MEMBER shall be obligated to notify the Client of this immediately. If the Client does not modify the statement of work to that effect, respectively accomplishes the prerequisite necessary for performance to become possible, the GROUP MEMBER can refuse performance. If the im-possibility of performance is the result of an omission on the part of the Client or of a modification after the fact of the statement of work by the Client, then Section 3.8 shall apply.
5.5. Individual programming shall be accepted by the Client after implementation, respectively installation. The specific test shall be guided by the agreed usage of the software and must be coordinated with the GROUP MEMBER (Section 10 shall apply accordingly).
5.6. ASP Services:
5.6.1. Provided that such is agreed in the Order Document, the GROUP MEMBER shall provide the Client with a direct access option to the software as the application service provider (“ASP Service”). In this case, the software shall be leased by the Client, and the Client shall use the software, and the Client data shall be processed and saved, via the Internet. The Client shall not receive a copy of the software when using the ASP Service (cf. Section 9).
5.6.2. After conclusion of the Order Document, the Client shall receive from the GROUP MEMBER login data and passwords (“Access Data”) for access to the ASP Services and to its internal Client area. The Client shall maintain the security of the Access Data and shall not make them accessible to third parties. The GROUP MEMBER can only verify whether a password match-es a properly released access authorisation. The GROUP MEMBER shall not be subject to any further obligation of verification. The GROUP MEMBER considers everyone who logs in with the Access Data to be authorised to do so by the Client. The Client shall be liable to the GROUP MEMBER for any damage that results from a violation of these provisions.
5.6.3. The Client itself is responsible for the provision, maintenance, and input of the infra-structure, data, and information necessary for the connection to the ASP Services. It undertakes to provide the data exclusively in the agreed form and via the agreed APIs. Client shall bear the full responsibility for the accuracy of the data, as well as for ensuring that such data is provided in a form that is appropriate and corresponds to the standards. The GROUP MEMBER shall not take on any content-related responsibility for the results of the data processing.
5.6.4. Apart from that, the provisions on IT infrastructure Deliverables (Section 8) shall apply also to ASP Services.
6. Additional provisions for IT support and maintenance services
6.1. Insofar as agreed in the Order Document, the GROUP MEMBER shall provide maintenance services for software defined therein during its Business Hours (maintenance readiness time). Maintenance services shall be performed by the GROUP MEMBER via remote servicing. Provision of Deliverables at the site of the Client shall require a separate order and shall be performed against a separate fee.
6.2. In particular, maintenance services include deliveries of general program versions with general error corrections and adjustments to the software, as defined in the Order Document, offered as part of maintenance services during the contract term (“Updates”). However, new program versions that contain substantial feature enhancements or program expansions that the GROUP MEMBER offers as an independent module for purchase (“Upgrades”), are excluded.
6.3. During maintenance readiness times, the GROUP MEMBER shall accept error notifications from the Client via email as set forth in Section 6.6 and offers the Client assistance and support for dealing with Errors and using the software to the extent reasonably required.
6.4. In particular, an “Error” exists if a software
- does not fulfil the functions designated in the SOW;
- delivers inaccurate results, uncontrollably shuts down when running, or
- does not function properly in another way,
so that the use of a software is impossible or significantly limited and the Error is reproducible. Any malfunctions that result from interaction with other software products and operating Errors shall not be covered.
6.5. The reasonable period for troubleshooting and remedying defects shall be determined by the severity of the Error (“Error Classes”):
The Error is critical (i.e. impeding operation) if the appropriate use of a part of, or of the entire, software is not possible or is unacceptably limited. The Error has a serious influence on processing business or on security. Continued work is not possible.
The Error is severe if the appropriate use of a part of, or of the entire, software is seriously limited. The Error has a significant influence on processing business or on security, but continued work is possible.
The Error is minor if the appropriate use of a part of, or of the entire, software is not significantly limited. The Error has little to no influence on processing business or on security, and continued work is possible.
6.6. The Client must notify the GROUP MEMBER of Errors immediately and in writing via email to firstname.lastname@example.org, including a detailed description of how the Error manifests itself, what effect it has, and under which circumstances it occurs. The GROUP MEMBER shall categorise the Error at its own discretion, assign it to an Error Class, and perform the troubleshooting within a reasonable time period.
6.7. A response time of 2 hours within the maintenance readiness time for Errors that impede operation applies as agreed. If necessary, the GROUP MEMBER can initiate earlier troubleshooting for Errors that impede operation subject to the organisational and technical possibilities. For Errors that do not impede operation, an appropriately longer, adequate period applies as agreed. The response time is the time span between the receipt of the error notification from the Client at the GROUP MEMBER and the beginning of the error analysis or the establishment of a measure directed at troubleshooting the Error by the GROUP MEMBER. The calculation of the response time shall be based exclusively on the Business Hours of the GROUP MEMBER. If an error notification is made outside of Business Hours, the response time shall begin on the next working day at the start of the Business Hours. Adequate response times without a specific assurance of the point in time when the activity will commence shall apply to Errors that do not impede operation. In each case, after troubleshooting has been initiated, the GROUP MEMBER shall endeavour to achieve an actual error resolution or to provide a work-around within a reasonable time period.
6.8. The Client shall be obligated to immediately install Updates provided by the GROUP MEMBER for a software as part of the Agreement. If the Client fails to install them, the GROUP MEMBER shall be released from the obligation to provide the Client with further maintenance and support services for the service components; this shall not affect the obligation to pay the agreed remuneration. Troubleshooting shall be performed by the GROUP MEMBER in this case only as part of a separate order and against a separate remuneration.
6.9. Troubleshooting and increased expenditure for the maintenance of the software that are necessary due to use in breach of contract, use in an operational environment other than that agreed, improper use, outside influence, force majeure, or due to a reason for which the GROUP MEMBER is not responsible, are not included in the agreed maintenance and support services. In such cases, the GROUP MEMBER shall provide Deliverables only as part of a separate order and for a separate fee.
6.10. The Client shall designate a qualified contact partner for the GROUP MEMBER who is exclusively authorised to utilise the agreed maintenance and support services. The Client shall ensure that this contact partner is trained so as to be suitable as a contact for the GROUP MEMBER with regard to support for any problems that arise with the item to be maintained. The GROUP MEMBER can charge Client for additional expenditures in accordance with the applicable rates at the time arising out of any examination of Client Error notifications in the event no Error had occurred, such fact having been apparent to Client under due care.
6.11. Support services: The Client shall be supported to an adequate extent by contracted support services in order to be able to appropriately implement individual use cases, and to be able to resolve or work around problems and Errors independently. The GROUP MEMBER shall not be obligated to provide actual availability of the software or any problem or error resolution with the support if not agreed otherwise in the Order Document. The same shall apply to general instructions for the utilisation of the software. In particular, the support shall not replace any user training or consultation of the handbook.
7. Additional provisions for consulting services
7.1. As regards individually contracted consulting services, the GROUP MEMBER shall provide its know-how for the optimisation of IT projects, products, and applications (“Projects”). The specific scope of performance shall be determined in the respective Order Document. The GROUP MEMBER can look into and evaluate diverse Projects in their current design and prepare future-oriented concepts for the design and/or focus of the project. The Client acknowledges that comprehensive changes and/or an entire reorientation of the current project could also result from the consulting services.
7.2. Furthermore, in terms of advertising the respective project, the GROUP MEMBER can advise the Client regarding products and their functionalities, and regarding corresponding public relations activities.
7.3. The GROUP MEMBER shall discuss with the Client on a regular basis the status of the consulting services and their results. If the Client submits change requests or other input, the GROUP MEMBER shall incorporate these in the consulting concept where appropriate and feasible.
7.4. The Client shall enter into a separate agreement with the GROUP MEMBER in advance of the implementation of a concept recommended by the GROUP MEMBER. Apart from that, the Client may implement the results of the consulting services itself, entirely or in part, on its own authority with the required diligence and quality.
8. Additional provisions for IT infrastructure Deliverables
8.1. Insofar as agreed in the Order Document, the GROUP MEMBER shall provide the Client with an individually prepared hosting packet. These Deliverables shall include, for example, server hosting, backups, and improvements to the network speed, data transfer, and the firewall.
8.2. The agreed IT infrastructure Deliverables shall be in principle operational continuously for 24 hours per day, seven days per week, with an availability of 98% per calendar year. This shall exclude pre-defined, individually agreed upon maintenance services, service interruptions due to Updates, times in which the web server cannot be reached via the Internet due to technical or other problems, for which the GROUP MEMBER is not responsible (Internet outage, force majeure, third-party culpability, failure on the part of the Client to establish and maintain of the infrastructure necessary for access, etc.). If it is foreseeable for the GROUP MEMBER that outage times for maintenance and software Updates will last longer than three hours, the GROUP MEMBER shall, whenever possible, notify the Client of this two calendar days before the start of the respective activities. A shortfall of the agreed availability for the calendar year shall be demonstrated by the Client.
8.3. In accordance with Section 6, the GROUP MEMBER shall take over maintenance and support services in the agreed scope for the provided IT infrastructure.
8.4. The Client itself shall be responsible for the maintenance and input of its data and information. Once the IT infrastructure has been stipulated, modification shall only be permissible after written approval from the GROUP MEMBER. The Client shall bear the full responsibility for the accuracy and currency of its data. The GROUP MEMBER shall not assume any content-related responsibility for the results of the data processing.
8.5. The GROUP MEMBER shall take appropriate measures to protect against unauthorised access by third parties the data and information transmitted by the Client. The Client is aware of the risk of unlawful access by third parties that might occur in spite of this. The GROUP MEMBER cannot be held accountable if third parties succeed in obtaining access to the data and information of the Client by illegal means in spite of the security measures.
8.6. When using the IT infrastructure, the Client is obligated to adhere to all applicable statutory provisions and to refrain from any abuse of or threat, respectively damage, to third parties; in particular, each instance of use that threatens public order, security, or morality, that violates the law, or is a nuisance to third parties shall be forbidden.
8.7. If there exists a justified suspicion that the Client or third parties accountable to the Client have violated the obligations of the GTC, then the GROUP MEMBER shall be entitled to suspend the use of the IT infrastructure after prior communication to this effect, respectively to terminate the agreement for cause. In the event of imminent danger, such forewarning may be omitted. The above regulations shall apply even if a third party alleges a right to the data provided by the Client. The Client shall be obligated to reimburse the expenditure of the GROUP MEMBER resulting from the suspension, including, in particular, the costs of the review and the prosecution of the violation. The Client undertakes to comprehensively indemnify and hold harmless the GROUP MEMBER with regard to any damage arising from alleged claims of third parties or from orders of public authorities in the context of the non-compliance on the part of the Client with the obligations of the Agreement, including penalties and court and legal fees, if any, for the defence of the GROUP MEMBER.
9. Usage rights, copyright law, and licensing
9.1. Unless expressly agreed upon otherwise within the Order Document, Client acknowledges that the GROUP MEMBER shall be exclusively entitled to all rights, in particular the exclusive exploitation, editing, and moral rights, to all software and their accompanying documentation as set out in the Order Documents and released, respectively provided, to the Client. The Client shall have solely those powers over the software and the accompanying documentation that are stipulated in the Agreement. The GROUP MEMBER expressly reserves all other intellectual property rights. In particular, the GROUP MEMBER shall be exclusively entitled to all rights to the source code and the documentation of the software developed or enhanced in the context of the performance of the Agreement.
9.2. In case of purchase of software and of individual programming, aside from the mandatory statutory rights of the Client pursuant to §§ 40d and 40e of the Austrian Copyright Law, the Client shall acquire the non-exclusive, non-transferable right to use the software within the scope agreed in the Order Document and for an unlimited time (“Temporally Unlimited Usage Permission”). The usage permission shall commence with the effective date of the contract defined in the Order Document. The grant of this Temporally Unlimited Usage Permission shall be settled with the payment of a one-time lump sum.
9.3. In case of individually agreed upon rental of software, the Client shall receive, aside from the mandatory statutory rights (cf. Section 9.2), the non-exclusive, non-transferable right to use the software within the scope agreed in the Order Document, but for a limited time (“Temporally Limited Usage Permission”). The usage right shall commence with the commencement of contract defined in the Order Document. The Client must pay a monthly fee for the duration of the term agreed in the Order Document for the grant of this Temporally Limited Usage Permission.
9.4. In the case of maintenance and support services by the GROUP MEMBER, the usage permission pursuant to Section 9.2 shall extend to any developments to the software through Updates.
9.5. The Client may only use the software in the agreed operational environment (e.g., CPU) and within the agreed operating conditions (e.g., number of users). When using software products in a network, a licence shall be necessary for each simultaneous user. When using software products on stand-alone PCs, a licence shall be necessary for each PC. The Client may only use the software for the agreed purposes. Each and any further use shall be forbidden to the Client. In particular, any sale and/or editing as well as transfer of the software and any accompanying documentation shall be inadmissible.
9.6. The Client may transfer its usage permission for the software to a third party only if the GROUP MEMBER approves the transfer in writing and the third party has submitted to the usage restrictions. In the case of such a transfer, the usage permission of the Client shall end automatically. The Client has no claim to approval from the GROUP MEMBER. In particular, the GROUP MEMBER can make its consent contingent upon the conclusion of a maintenance and support contract or an advance payment.
9.7. Documents, proposals, test programs or similar documentation of the software shall be the intellectual property of the GROUP MEMBER or of third parties. The Client shall not reproduce and/or provide these to third parties. If no contract is formed, these shall be given back or deleted/destroyed at the option of the GROUP MEMBER and shall not be used or shared.
9.8. Client shall document its use in written or electronic form, enabling the GROUP MEMBER to thoroughly verify Client's compliance with the agreed usage permission. Client provides such documentation to the GROUP MEMBER upon notice within five working days. Furthermore, the GROUP MEMBER may audit Client’s fully compliant usage upon 14 working days' prior written notice during Client's regular business hours and at Client’s offices ("Audit"). The Audit shall not interfere unreasonably with Client’s business. Client shall cooperate as reasonably required in the course of the Audit and will, inter alia, allow inspection of all environments in which the software is used as well as of relevant documents and will provide all necessary information. The GROUP MEMBER can mandate an independent auditor with such Audit, provided auditor’s written contractual or statutory confidentiality obligation. In the event the Audit reveals any use or transfer of the software in excess of the agreed usage permission ("Excessive Use"), at the demand of the GROUP MEMBER, Client shall pay to the GROUP MEMBER (i) a contractual penalty in the amount of three times of the fees actually owed, regardless of fault, for the entire amount of the Excessive Use and (ii) cover all costs of the Audit. Any further statutory rights of the GROUP MEMBER remain unaffected.
9.9. With regard to software products of third parties that the GROUP MEMBER releases to the Client, the current licence terms of the manufacturer of such software shall take priority over the regulations of this section. The GROUP MEMBER shall give no warranty whatsoever for software that is classified as “In The Public Domain” or as “Shareware". The conditions of use specified by the manufacturer of such software or licence systems, if any, shall be observed.
10. Delivery, Acceptance
10.1. Type and date of delivery or electronic provision of the software are set forth in the Order Document. The Client shall install the software and bring them into operation. No acceptance shall take place with software that is to be self-installed by the Client. The five-day written complaint period pursuant to Section 11.8 shall apply here starting with the transfer, respectively provision, of the components. Client can order further installation and implementation services separately. Such services shall be invoiced by the GROUP MEMBER according to the pricing list currently applicable. If the GROUP MEMBER shall provide for the installation and implementation of the software under the Order Document, the Client shall issue its acceptance in accordance with Section 10.4.
10.2. The software shall be provided to the Client in machine-readable form. The source code shall not be released to the Client, and the Client shall have no claim to release thereof. This shall also apply to individual programming.
10.3. The GROUP MEMBER shall provide the software in the version that is current on the date of conclusion of the Agreement. The specification of the software shall be exclusively governed by the Order Document.
10.4. If the Deliverable includes installation and/or implementation of software, then an acceptance by the Client must take place. This shall only include the components that are relevant to the delivery and that shall be installed and implemented by the GROUP MEMBER. To this end, the Client shall perform an appropriate functional test of the program within a testing phase of five working days after the installation and/or implementation. If any critical or severe defects (“Defects That Prevent Operation”) emerge in the testing phase, the GROUP MEMBER shall resolve these within a reasonable time and estimate a new acceptance date. If the Client does not notify the GROUP MEMBER immediately and in writing of any Defects That Prevent Operation that emerge during the testing phase, then the acceptance is successful. If the Client already uses the delivered/provided programs in live operation before the acceptance and fails to give notice within five days from the start of operation about any Defects That Prevent Operation, then the program shall be considered accepted.
11. Misrepresentation, Warranties
11.1. Claims to dispute or amend the Agreement for misrepresentations of the GROUP MEMBER are excluded, except if caused in gross negligence.
11.2. The GROUP MEMBER shall provide the agreed Deliverables according to the general standards in the software and IT sector. The GROUP MEMBER shall not owe any specific performance in the context the provision of Deliverables.
11.3. The GROUP MEMBER shall not be liable for defects resulting from lack of cooperation, incomplete or erroneous information of the Client. If the Client desires subsequent changes, the delivery period shall extend accordingly. The GROUP MEMBER will report delays in the provision of Deliverables. The GROUP MEMBER is entitled to extend binding performance periods for the duration of the delay plus an appropriate starting phase if such delays are not solely attributable to the GROUP MEMBER (e.g. late cooperation or delays by Client's (sub)contractors).
11.4. In any case, the Client itself shall be responsible for selecting Deliverables as well as for the technical operating conditions. The Client shall bear the risk in terms of these meeting its requirements. For this reason, the GROUP MEMBER makes no warranty that these possess the characteristics expected by the Client, or that they are capable of the applications that the Client has in mind.
11.5. In the case of licensing of software or provision of (individual) programming, the GROUP MEMBER shall guarantee that the Deliverables fulfil the specifications stipulated in the Order Document on the date of the transfer/provision. The details contained in the catalogues, brochures, product descriptions, advertising messages and the like, as well as other written or oral statements, shall only be decisive and shall only form subject matter of the contract if the Order Document expressly declares them to be contractual content.
11.6. In the case of other Deliverables, the GROUP MEMBER shall guarantee exclusively that these are provided by appropriately qualified employees.
11.7. The burden of proof for the existence of defects shall be borne by the Client. The presumption of a lack of conformity pursuant to § 924 ABGB (General Civil Code) shall be excluded.
11.8. For Deliverables of the GROUP MEMBER that carry an obligation to accept on the part of the Client, the GROUP MEMBER shall resolve within a reasonable time period the Errors that are noticed during the course of the acceptance process. The assertion of warranty claims for defects that are noticed after the acceptance process shall be excluded. Such defects, respectively Errors, shall be handled in their agreed scope, provided that a maintenance and support obligation was agreed.
11.9. As regards all other Deliverables, the Client shall examine these for defects pursuant to § 377 et seq. UGB. The GROUP MEMBER shall be notified in writing of noticed defects immediately, but not later than within five calendar days after the handover/provision of the Deliverable, and information regarding the type and scope of the defect shall be included in writing. Notification of hidden defects shall be made in writing immediately, but not later than within five calendar days after their discovery. The Client shall support the GROUP MEMBER to a reasonable extent in terms of correction of defects (subsequent improvement) and, in particular, shall provide the relevant documents. The GROUP MEMBER shall perform the correction at its own option by subsequent improvement, troubleshooting, installing a work-around, releasing a new program version, or by demonstrating options for avoiding the consequences of the Error. Price reduction and conversion, unless for errors which factually cannot or have not been remedied despite attempts to do so, shall be excluded. Warranty claims may be asserted in court not later than within 6 months of the delivery of the deliverable concerned. Any out-of-court notification of defects cannot be asserted as a defence against actions for payment after the expiry of the period for in court assertion.
11.10. There shall be no warranty for defects and Errors that are attributable to the responsibility of the Client or the Client’s other suppliers and service providers. The exclusion covers, in particular, malfunctions or damage caused by improper operation; subsequent or unauthorised intervention by third parties; modified operating system components, interfaces, and parameters; the use of inappropriate organisational resources and data storage devices; abnormal operating conditions (in particular deviations from the installation and storage conditions); as well as damage in transport.
11.11. There shall be no warranty for defects and Errors that are attributable to the responsibility of the Client or the Client’s other suppliers and service providers. The exclusion covers, in particular, malfunctions or damage caused by improper operation; subsequent or unauthorised intervention by third parties; modified operating system components, interfaces, and parameters; the use of inappropriate organisational resources and data storage devices; abnormal operating conditions (in particular deviations from the installation and storage conditions); as well as damage in transport.
11.12. Warranty, respectively guarantee, claims on the part of the Client concerning Deliverables purchased from third parties shall be limited to the assignment to the Client of such claims as the GROUP MEMBER itself has against the manufacturer, respectively its distributors (cf. Section 2.8). Moreover, as regards delivery, the GROUP MEMBER itself shall not be obligated to guarantee their deliveries.
12. Force majeure
12.1. To the extent that, and as long as, obligations cannot be fulfilled on time or properly due to force majeure, such as for example war, terrorism, natural catastrophes, fire, strike, lock-out, embargo, interventions by public authorities, failure of the electricity supply, failure of means of transport, failure of telecommunications networks, respectively data cables, this shall not represent a breach of contract.
13. Limitation of Liability
13.1. The GROUP MEMBER shall indemnify Client exclusively for damages arising from malicious intent or gross negligence. This limitation shall not apply to damages for which no limitation of liability is permitted by applicable law, injury of life, personal harm or injury of health, and claims under the Product Liability Act. In any case, the entire liability of the GROUP MEMBER shall, moreover, be limited in total to the (i) amount of the one-time fee (in the case of purchase); or (ii) the cumulated amount of license fees (in the case of rental/leasing) respectively (iii) the cumulated fees for other services (in the case of maintenance and support) paid by Client during a 12-month period preceding the event giving rise to such claim(s) occurred, whichever is the lowest. The Client shall be responsible for providing the evidence that the damage was caused by malicious intent or gross negligence on the part of the GROUP MEMBER.
13.2. The GROUP MEMBER does not assume any liability for lost profit, anticipated savings, indirect or consequential damage, or for damage to data processed. The Client confirms to have taken and to maintain all reasonable measures in his scope of responsibility, in particular data backups and ongoing verification of results, in order to recognise any damage events as early as possible and to minimise the consequences.
13.3. All claims of Client for damages that are not recognised in writing by the GROUP MEMBER shall become time-barred one year after Client becomes aware of the damage and the liable party or, at the latest, five years after the cause of the claim arose.
13.4. Where the GROUP MEMBER provides Deliverables with the help of third parties and warranty and/or liability claims arise against these third parties in this context, the GROUP MEMBER shall assign these claims to the Client. In this case, the Client shall refer to these third parties.
13.5. With regard to consulting services, the GROUP MEMBER shall endeavour to the best of its knowledge and conscience to provide these as well as possible. The Client is aware that some Projects are complex and may affect numerous areas that are not conclusively regulated by law and that are subject to a continual flow. Thus, the GROUP MEMBER shall not be liable to ensure that the respective project complies with all legal requirements through these consulting services.
14. Remuneration and payment terms
14.1. The fees and any special payment conditions for the provision of Deliverables by the GROUP MEMBER shall be defined in the Order Document. All fees shall be understood to be in euros and to include taxes, charges, and public costs.
14.2. Provided that the provision, respectively the delivery, of Deliverables cannot be made digitally, the costs of data storage devices and shipping costs shall be invoiced separately.
14.3. Unless otherwise stipulated in the Order Document, the Deliverables of the GROUP MEMBER shall be invoiced according to the actual accrual and the resulting expenditure.
14.4. The GROUP MEMBER shall be entitled to adjust the remuneration once a year according to the price in-crease of the current consumer price index (CPI) or an index replacing it. The index number calculated for the month in which the contract is concluded (cf. Section 2.1) shall serve as reference figure respectively.
14.5. The GROUP MEMBER shall be entitled at any time to make the provision of Deliverables contingent upon the payment of down payments or upon the supply of other collateral by the Client in a reasonable amount.
14.6. One-time remunerations can be invoiced after the provision of Deliverables and on-going remunerations can be invoiced quarterly in advance. The invoices submitted by the GROUP MEMBER, including VAT, shall be payable, free of any deduction or charge, not later than 14 days after receipt thereof. The payment conditions defined for an aggregate order shall apply by analogy to partial invoices. A payment shall be considered successfully made on the date when the relevant amount is at the disposal of the GROUP MEMBER.
14.7. In the event of default of Client's payment a default interest rate of 12% shall be invoiced starting from the day when the payment was due. Moreover, the GROUP MEMBER shall be entitled in this case, after a reminder and having set a grace period of at least 14 days, to withdraw from all agreements that have been concluded with the Client.
14.8. In the event of default of payment, the GROUP MEMBER shall be entitled to cease, respectively cancel, its Deliverables until the complete settlement of arrears. In such a case, the GROUP MEMBER shall also be permitted to make the software unusable for the duration of the default by using appropriate technical equipment, respectively settings. Moreover, the GROUP MEMBER shall in any case be entitled to call fees for all Deliverables that have already been provided due immediately, regardless of any payment terms.
14.9. The Client may exercise against the GROUP MEMBER rights of set-off and retention only concerning uncontested counterclaims or counterclaims asserted in and finally adjudicated by the court.
14.10. All charges, duties, and taxes that arise from the conclusion of the contract and/or the utilisation of the services shall be borne by Client.
14.11. Any travel time accrued by employees of the GROUP MEMBER shall count as working time. Travel time shall be remunerated in the amount of the agreed hourly rate. Additionally, the travel costs and any accommodation expenses shall be reimbursed by the Client in accordance with the actual expenditure (flight: business class; rail: first class; accommodation: 4-star hotel). The travel and associated costs shall be reimbursed upon submission of receipts (copies).
15. Term of contract and termination notice
15.1. The contract term shall be defined in the respective Order Document.
15.2. The GROUP MEMBER may terminate an Agreement concluded for a limited duration at the end of each calendar year subject to a three-month notice period (receipt). Agreements of unlimited duration can be ordinarily terminated by each contracting party at the end of each month subject to a three-month notice period (receipt). Termination notices must be submitted by means of registered letter.
15.3. As regards an Agreement concerning a one-time Deliverable, ordinary termination is excluded.
15.4. As regards an Agreement that is concluded for a specific time, it shall automatically be renewed for a further year, provided that it has not been terminated by one of the parties by registered letter subject to a three-month notice period (receipt) prior to the expiry of the respective contract term as defined in the Order Document.
15.5. Each contracting party shall be entitled to terminate the Agreement for cause by means of a registered letter prematurely and without notice.
15.6. Cause shall exist, in particular, if the respective other party violates significant obligations arising from the Agreement in spite of written warning, in spite of having been granted an appropriate grace period, and in spite of the threat of termination. Cause shall exist in particular, but not exclusively, for any violation of the usage authorisation, the event of default of payment, in circumstances attributable to the Client that could be detrimental to the GROUP MEMBER's reputation and/or in case of Client's breach of clause 18.6.
15.7. In the event of termination for cause that is the fault of the Client, as well as in the event of unjustified termination by the Client, the GROUP MEMBER shall have a claim to payment without deduction for all Deliverables until the next following ordinary termination date, respectively to the agreed full sum.
15.8. As regards provision of Deliverables defined in the individual contract as an ASP Service or the provision of IT infrastructure, in the case of a termination of the Agreement, insofar as legally permissible under data protection laws access of Client shall be barred once the termination takes effect and the processed Client data shall be deleted. The GROUP MEMBER shall not be obligated to return the received data to the Client (cf. Section 3.3), and the Client itself shall thus be responsible for backing up the data in time.
15.9. Unjustified termination of the individual contract, such as, in particular, cancellation by the Client, shall only be effective with the written approval of the GROUP MEMBER. Should the GROUP MEMBER agree to a termination, then the GROUP MEMBER shall have the right to charge a cancellation fee in the amount of 30% of the not-yet-billed contract value of the entire project in addition to the charge for the Deliverables provided and accrued costs.
15.10. Upon termination of the Agreement, the Client shall immediately return to the GROUP MEMBER all records and documentation that were transmitted to it by the GROUP MEMBER.
15.11. Upon termination of the Agreement and thereafter, the GROUP MEMBER shall support the Client upon request in terms of returning the services to the Client or to a third party under a separate, written agreement and at the hourly rates currently applicable at the GROUP MEMBER.
16. Data protection
16.2. The respective Data Processing Terms (available here) and the respective DPA Appendix attached to the Order Document jointly form the Data Processing Agreement under Art 28 GDPR ("DPA"). The DPA applies and supplements the GTC, if and to the extent the GROUP MEMBER processes personal data on behalf of the Client within the scope of the European General Data Protection Regulation (EU/2016/679, GDPR).
17.1. Each party shall pledge to the other that all business-, trade-secrets or other confidential information ("Confidential Information") brought to its knowledge in the context of the Agreement and its performance shall be handled as such and shall not be made accessible to third parties, provided that Confidential Information is not generally known or has not been revealed due to a final decision of the public authorities or the court. This obligation shall apply for an unlimited period of time even after the end of the Agreement. In each case of Client's breach of this confidentiality obligation, Client shall pay the amount of EUR 10,000.- to the GROUP MEMBER, notwithstanding GROUP MEMBER's right to claim compensation for any damage higher than that.
17.2. Members of IXOLIT Group shall not be deemed as third parties provided that they are subject to a non-disclosure obligation that corresponds to the content of this section.
18. Other rights and duties
18.1. The parties undertake to display mutual loyalty. However, unless expressly agreed otherwise, the GROUP MEMBER shall not be prevented from concluding identical or similar contracts with third parties.
18.2. The Client shall not entice away, either itself or via third parties, employees of the GROUP MEMBER that were appointed to provide Deliverables during the term of the Agreement and until one year from its expiry. For each instance of breach, the Client undertakes to pay to the GROUP MEMBER a contractual penalty in the amount of twelve times the gross monthly salary that the respective employee last received from the GROUP MEMBER, but as a minimum twelve times the salary owed under the collective labour agreement for an employee of a company providing services in the automatic data processing and information technology sector at the experience level of special duties.
18.3. Within the Order Document, the contracting parties shall appoint qualified and competent employees to make or effect binding decisions on behalf of the respective party.
18.4. The GROUP MEMBER shall be entitled to cite to third parties for reference purposes the Client and the type of Deliverables provided to the Client.
Client grants to GROUP MEMBER the worldwide, non-royalty bearing right, unrestricted in content matter and time, to name Client as a reference including inter alia (i) in Websites of IXOPAY GmbH (www.ixopay.com), IXOLIT GmbH (www.ixolit.com), and in other GROUP MEMBERS' Websites; (ii) in marketing materials, in particular newsletters, information and advertisements (in electronic & postal form), of IXOLIT Group; and (iii) in social media platforms such as LinkedIn, Facebook, Twitter, Google+ or substantially similar future platforms, for marketing purposes of IXOLIT GROUP. Only if Client's company name is within the scope of GDPR, this consent can be withdrawn at any time, with effect for the future.
18.5. The GROUP MEMBER may transfer its rights and duties under the Agreement to one or several third parties without the approval of the Client. The Client shall have no right to terminate in the event that the contract is transferred.
18.6. Any rights and obligations under the Agreement shall not be assignable by the Client without prior written consent of the GROUP MEMBER neither in connection with transfer of Client's shares or assets, by any restructuring (inter alia any conversion, merger, demerger, consolidation) nor otherwise via singular or universal succession.
19. Final provisions, Jurisdiction
19.1. In the event of conflict, the following order of precedence applies: 1. Any Exhibit(s) to Order Document in its sequence mentioned therein 2. Order Document 3. these GTC.
19.2. Modifications of and supplements to these GTC or an Order Document shall require written form; the same shall apply to a waiver of the written form requirement. Notifications sent via email, letter, or fax shall count as written declarations within the meaning of these GTC.
19.3. Should one or several provisions of this contract be or become invalid or infeasible, whether in full or in part, the validity of the other provisions shall remain unaffected. The invalid or infeasible provision shall be deemed to be replaced by an analogous, valid regulation that most closely reflects the commercial purpose of the invalid or infeasible clause.
19.4. These GTC and Agreements concluded on the basis thereof shall be governed exclusively by the substantive law of the Republic of Austria, to the exclusion of its conflict of law rules and of the United Nations Convention on Contracts for the International Sale of Goods. The same shall apply if Deliverables of the GROUP MEMBER are provided abroad.
19.5. Exclusive Jurisdiction: All disputes, including disputes relating to the validity of the Agreement and its parts, shall be exclusively settled by the competent court for 1010 Vienna, Austria.