General Terms and Conditions of kiwi suite GmbH
1. Miscellaneous, scope of application, authorisation to modify
kiwi suite GmbH ("kiwi suite”) shall provide work and services (“deliverables”) in the domains of information and communications technology for the respective contractual partner (“customer”). These General Terms and Conditions (“GTC”) shall apply as amended at the time that the contract is concluded to all deliverables, including those to be provided in the future, that kiwi suite provides for the customer and shall form an integral component of each contract concluded by kiwi suite, even failing express reference to them, unless ex-pressly agreed otherwise in writing. kiwi suite expressly objects to supplementary or altering contractual terms, as well as to any GTC of the customer. These shall only apply if they are recognised by kiwi suite expressly and in writing. Employees of kiwi suite shall not be au-thorised to make oral subsidiary agreements or oral covenants.
In the event of continuing obligations, kiwi suite shall be entitled to unilaterally modify the GTC at any time, even during a valid contractual relationship. The modified GTC shall be sent to the customer. They shall take effect if the customer does not object to them in writing within four weeks after receipt of the notice of modification. In case of an objection, kiwi suite can terminate the contracts for cause together or individually on the last day of the current month. Provided that kiwi suite does not terminate the contract with the customer, the old GTC shall continue to apply to this customer.
Unless they are marked otherwise, all quotes of kiwi suite shall be non-obligatory and all cost estimates shall be non-binding. kiwi suite reserves the right to invoice a reasonable fee for cost estimates in the event that the customer fails to place an order.
2. Conclusion of contract, scope of performance
A contract is formed upon the written declaration of acceptance / confirmation of order by kiwi suite (“individual contract”).
The type and scope of the deliverables of kiwi suite shall be determined by the conditions of the respective individual contract concluded in writing between kiwi suite and the customer and by the statement of work contained therein. Oral modifications or additional agree-ments shall not be binding for kiwi suite.
kiwi suite shall not be required to provide deliverables other than those defined in the individual contract. If new requirements of the customer make it necessary to change the deliverables, respectively the technologies utilised, then kiwi suite shall submit a separate quote at the request of the customer. If the customer makes use of deliverables of kiwi suite beyond the respectively agreed scope of performance without concluding a separate con-tract, then kiwi suite 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 of the ordinary business hours of kiwi suite, or the analysis and resolution of malfunctions or errors that arise due to improper handling or operation by the customer or due to other circumstances for which kiwi suite 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 individual contract. If kiwi suite should provide, free of charge, deliverables that are not a contractual obligation, then these may be discontinued at any time without notice.
The individual deliverables are separable and shall be invoiced separately. Deliverables of kiwi suite shall not be regarded as projects and shall be viewed as separate from any customer projects. They shall only form components of a customer’s project or of a project implemented by a third party on behalf of the customer with express written agreement. This shall also apply if, from the customer’s point of view, the deliverables are incorpo-rated technically, organisationally, and/or temporally into an IT project. The customer’s duties with regard to kiwi suite shall be neither suspended nor limited due to delay in such a project.
kiwi suite shall provide its deliverables during its ordinary business hours. These are Mon. - Thu.: 3am - 8am PST, Fri.: 3am - 6am PST (“business hours”).
kiwi suite 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 kiwi suite. kiwi suite shall be entitled to replace assigned employees with other, appropriately qualified employees at any time.
When fulfilling an individual contract, kiwi suite can be represented by other qualified third parties, whether natural or legal persons (“subcontractor” or “vicarious agent”), appointed by kiwi suite.
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”), kiwi suite shall identify, respectively note, these accordingly in the quote. By placing an order, the customer authorises kiwi suite to commission these third-party services on behalf of and for the account of the customer. In this case, a direct con-tractual relationship shall form between the third party and the customer. Any claims aris-ing from this relationship shall be handled directly and exclusively between these parties. Alternatively, kiwi suite reserves the right to commission the third-party services in its own name, but for the account of the customer. In this case, the claims of the customer with regard to third-party services shall be limited to the assignment of any claims of kiwi suite against the third-party to the customer.
kiwi suite reserves the right to modify or make improvements to deliverables that are contractually agreed with the customer, provided that such a modification or improvement is customary, is necessary due to statutory provisions, or is reasonable for the customer with consideration to the interests of kiwi suite.
3. The customer’s duties to collaborate and provide resources
The proper provision of deliverables by kiwi suite presupposes qualitatively flawless, on-schedule support by the customer, respectively by the customer’s qualified personnel. The customer undertakes to support all measures that are necessary for kiwi suite to provide the deliverables. To the extent that the cooperation and/or provision of resources by the customer or by third parties is necessary for the implementation of an individual contract, the customer 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 kiwi suite. kiwi suite shall inform the customer of the customer’s duties to cooperate and provide resources in a timely manner and in writing. If the IT structure of the customer does not fulfil the technical requirements of kiwi suite for the provision of de-liverables and operation, then adjustments, if any, shall be made by the customer.
Unless this was expressly agreed as the scope of performance, the customer 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 kiwi suite at its own cost and risk. This shall apply in particular to the utilisation and appropriate processing of the deliverables of this contract via long-range data transmission (telephone, fax, email, Internet connection). In particular, the customer shall take suitable technical measures to protect its system against third-party access and to identify mal-ware or malicious programs. Additionally, the customer 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 customer shall carry out such data back-up before each support or mainte-nance measure. kiwi suite itself shall also store the data and information transmitted to the customer so that it can be reconstructed at any time in the event of loss or damage. kiwi suite shall not be obligated to perform any back-up beyond this. In the event of data loss, the customer must provide the data again to kiwi suite to the extent necessary for the pro-vision of deliverables by kiwi suite immediately and at no cost, and kiwi suite shall produce the condition of the data that corresponds to that of the last available backup.
The customer must inform kiwi suite pro-actively and in writing of all characteristics of its IT structure, its operational organisation, and the software programs that it uses, as well as of all circumstances that could prevent, delay, or otherwise negatively impact the deliver-ables. In particular, the customer must submit to kiwi suite the documents and information needed in connection with the deliverables without delay and in their entirety.
The customer must ensure that its employees and the third parties that are attributable to it treat with care the equipment and technologies employed by kiwi suite as well as any assets relinquished to the customer. The customer shall be obligated to treat as confiden-tial the passwords / log-in data necessary for the use of the deliverables of kiwi suite. The customer shall be liable to kiwi suite for any damage arising from improper handling of the released materials, equipment, technologies and/or passwords / log-in data.
If necessary for the provision of deliverables, the customer shall deliver to kiwi suite prior to commencement of its activities a complete and current network documentation (network plan) and production descriptions for the employed hard- and software
The customer shall be obligated to review without delay the software programs provided to it as part of a deliverable. This shall also apply in particular with regard to any malware or malicious elements. Provided that software programs conform to the contract, the cus-tomer must install, respectively deploy, these without delay, unless kiwi suite has pledged the implementation to the customer in the individual contract.
kiwi suite shall not be obligated to verify the quality, respectively the absence of errors, nor the accuracy, respectively completeness, of cooperative performances or resources pro-vided by the customer.
The licence conditions of the respective manufacturer shall apply to the software programs utilised by kiwi suite – provided that they are not individually programmed. The customer must ensure the necessary licensing independently and on its own authority. kiwi suite shall not be bound by any obligation to advise and/or verify, unless this is expressly agreed in a contract.
The customer 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 kiwi suite. The customer shall be responsible to ensure that its employees involved in performing the contract, or the third parties appointed by the customer, cooperate in the performance of the contract. In the event of non-fulfilment of a duty of cooperation or provision of resources, kiwi suite shall grant the customer 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 im-proper or untimely cooperation of, and/or provision of resources by, the customer, kiwi suite can demand modifications to the schedule and to the agreed remuneration, notwithstanding further legal rights. The prices of kiwi suite that are applicable at the time shall apply to the remuneration for the additional costs. Conversely, the customer shall not be entitled to as-sert claims against kiwi suite due to delay and/or additional costs for which the client is responsible. If the customer fails in its duty in spite of the setting of a grace period, kiwi suite 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 customer shall be automatically due upon the dissolution of the contract.
4. Performance catalogue
kiwi suite can provide deliverables for the customer in the areas of
- Information technology, in particular development and provision of IT infrastructure; development and implementation of software programs, 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; preparation of global and detailed analyses; customer relationship management; risk management; as well as marketing, online advertising, and realisation of the consulting outcomes.
In principle, the customer 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 individual contract. Even in this case, the customer must accept instances in which deadlines are exceeded to a minor extent without being due a claim for damage compensation or right of rescission.
The place of the provision of deliverables shall be determined by kiwi suite according to technical, spatial, and organisational conditions. kiwi suite can stipulate the actual place of performance from amongst several possibilities at its own discretion.
The period of performance shall be stipulated in writing by kiwi suite and the customer in the contract. Otherwise, kiwi suite shall begin to provide the deliverables as soon as possible, but in any case within 30 days from the conclusion of the contract.
Deliverables provided shall be recorded by kiwi suite with the records of working hours. If a there exists a flatrate agreement for a performance object, then the records of working hours shall be omitted.
In the event that software programs are purchased, no continuing services from kiwi suite, such as, in particular, maintenance and support services, shall be covered. These shall be ordered separately by the customer.
In the event that the customer leases software programs under a contract, the maintenance and support services specified in the individual contract shall form a compulsory component of the contract and shall be included in the fee.
5. Additional provisions for software development
With (individual) programming, in addition to the general obligation of cooperation, the customer must create a complete user requirements document and must define the framework conditions for the (individual) programming. The customer 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 kiwi suite with kiwi suite’s written consent and may result in deviations from the deadline and from price agreements for which kiwi suite is not responsible.
kiwi suite 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). kiwi suite shall endeavour to fulfil the user specifications as well as possible. Should the location of the customer be defined in the individual contract as the place of performance for implementation, then the customer undertakes to prepare the development environment, the programming tools, and the testing environment. The customer furthermore undertakes to prepare the interfaces for data import and export as well as real data for testing purposes. The obligation of the customer to provide adequate protection against unauthorised access and adverse effects from the outside shall also apply to the development and testing environment. If the customer is already operating live the system provided for the test, the responsibility for securing the real data shall lie exclusively with the customer.
Provided that such is stipulated in the individual contract, for a separate fee, kiwi suite 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 customer. In this case, the customer shall review the user requirements document for accuracy and completeness and endorse it. The provisions of Section 5.2 shall apply by analogy.
Should it become apparent in the course of the provision of deliverables that such provi-sion based on the user requirements document is actually or legally impossible, kiwi suite shall be obligated to notify the customer of this immediately. If the customer does not modify the statement of work to that effect, respectively accomplishes the prerequisite necessary for performance to become possible, kiwi suite can refuse performance. If the im-possibility of performance is the result of an omission on the part of the customer or of a modification after the fact of the statement of work by the customer, then Section 3.9 shall apply.
Individual programming shall be accepted by the customer after implementation, respec-tively installation (Section 6 shall apply accordingly). The specific test program shall be guided by the agreed usage of the software and must be coordinated with kiwi suite.
5.6.1 Provided that such is agreed in the individual contract, kiwi suite shall provide the customer with a direct access option to software programs as the application service provider (“ASP service”). In this case, the software programs shall be leased by the customer, and the customer shall use the software, and the customer data shall be processed and saved, via the Internet. The customer shall not receive a copy of the software program when using the ASP service (cf. Section 9).
5.6.2 After conclusion of the individual contract, the customer shall receive from kiwi suite login data and passwords (“access data”) for access to the ASP services and to its internal customer area. The customer shall maintain the security of the access data and shall not make them accessible to third parties. kiwi suite can only verify whether a password match-es a properly released access authorisation. kiwi suite shall not be subject to any further obligation of verification. kiwi suite shall consider everyone who logs in with the access data to be authorised to do so by the customer. The customer shall be liable to kiwi suite for any damage that results from a violation of these provisions.
5.6.3 The customer 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 un-dertakes to provide the data exclusively in the agreed form. Modification of a stipulated structure shall only be permissible after written approval from kiwi suite. The customer shall bear the full responsibility for the accuracy and currency of the data, as well as for ensur-ing that such data is provided in a form that is appropriate and corresponds to the stand-ards. kiwi suite shall not take on any content-related responsibility for the results of the da-ta 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 support and maintenance services
The maintenance standby time for software programs defined in the individual contract shall be during the business hours of kiwi suite. Maintenance services shall be performed by kiwi suite via remote servicing. Provision of deliverables at the site of the customer shall require a separate order and shall be performed against a separate fee.
In particular, maintenance services include deliveries of general program versions with general error corrections and adjustments to the software programs that form the subject matter of the individual contracts that are offered during the contract term as part of maintenance (“updates”). This, however, to the exclusion of new program versions that contain substantial feature enhancements or program expansions that kiwi suite offers as an independent module for purchase (“upgrades”).
During the maintenance standby times, kiwi suite shall accept error notifications from the customer via email. Furthermore, during the maintenance standby time, kiwi suite shall offer the customer assistance and support to a reasonable extent for dealing with errors and using the software.
In particular, an “error” exists if a software program
- does not fulfil the functions designated in the product specifications;
- delivers inaccurate results, uncontrollably shuts down when running, or
- does not function properly in another way,
so that the use of a software program 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.
The reasonable period for troubleshooting and remedying defects shall be determined by the severity of the error (“error classes”):
- The error is critical if the appropriate use of a part of, or of the entire, soft-ware program 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, soft-ware program 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 program is not significantly limited. The error has little to no influence on processing business or on security, and continued work is possible.
The customer must notify kiwi suite of errors immediately and in writing via email, including a detailed description of how the error manifests itself, what effect it has, and under which circumstances it occurs. kiwi suite shall categorise the error at its own discretion, as-sign it to an error class, and perform the troubleshooting within a reasonable time period.
A response time of 2 hours within the maintenance standby time for errors that impede operation applies as agreed. If necessary, kiwi suite can initiate earlier troubleshoot-ing 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 customer at kiwi suite and the beginning of the error analysis or the establishment of a measure directed at troubleshooting the error by kiwi suite. The calculation of the response time shall be based exclusively on the business hours of kiwi suite, and time periods outside of these business hours shall not be taken into account. 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 specif-ic 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, kiwi suite shall endeavour to achieve an actual error resolution or to provide a work-around within a reasonable time period.
The customer shall be obligated to install immediately the updates provided by kiwi suite for a software program as part of the individual contract. If the customer fails to install them, kiwi suite shall be released from the obligation to provide the customer with further mainte-nance and support services for the service components; this shall not affect the obligation to pay the agreed remuneration. Troubleshooting shall be performed by kiwi suite in this case only as part of a separate order and against a separate remuneration.
Troubleshooting and increased expenditure for the maintenance of the software program 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 rea-son for which kiwi suite is not responsible, are not included in the agreed maintenance and support services. In such cases, kiwi suite shall provide deliverables only as part of a sepa-rate order and for a separate fee.
The customer shall designate a qualified contact partner for kiwi suite who is exclusively authorised to utilise the agreed maintenance and support services. The customer shall ensure that this contact partner is trained so as to be suitable as a contact for kiwi suite with regard to support for any problems that arise with the item to be maintained.
The customer shall be supported to an adequate extent by the 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. kiwi suite shall not be obligated to provide actual availability of the software program or any problem or error resolution with the support. The same shall apply to general instructions for the utilisation of the software program. In particular, the support shall not replace any user training or consultation of the handbook.
7. Additional provisions for consulting services
As regards consulting services that are ordered under the individual contract, kiwi suite 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 individual contract. kiwi suite 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 customer acknowledges that comprehensive changes and/or an entire reorientation of the current project could also result from the consulting services.
Furthermore, in terms of advertising the respective project, kiwi suite can advise the cus-tomer regarding products and their functionalities, and regarding corresponding public re-lations activities.
kiwi suite shall discuss with the customer on a regular basis the status of the consulting services and their results. If the customer submits change requests or other input, kiwi suite shall incorporate these in the consulting concept where appropriate and feasible.
An individual contract shall be concluded before the implementation of a concept recommended by kiwi suite. Apart from that, the customer has the option to implement the results of the consultation itself, entirely or in part, on its own authority with the required dili-gence and quality.
8. Additional provisions for IT infrastructure deliverables
Provided that such is agreed in the individual contract, kiwi suite shall provide the customer with an individually prepared hosting packet. These deliverables shall include, for exam-ple, server hosting, backups, and improvements to the network speed, data transfer, and the firewall.
The agreed IT infrastructure deliverables shall be operational continuously for 24 hours per day, seven days per week, with an availability of 98% per calendar year. This, to the exclusion of pre-defined, contractually agreed maintenance services, service interruptions due to updates, and of times when the web server cannot be reached via the Internet due to technical or other problems for which kiwi suite is not responsible (Internet outage, force majeure, third-party culpability, failure on the part of the customer to establish and main-tain of the infrastructure necessary for access, etc.). If it is foreseeable for kiwi suite that outage times for maintenance and software updates will last longer than three hours, kiwi suite shall, whenever possible, notify the customer 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 customer.
In accordance with Section 6, kiwi suite shall take over maintenance and support services in the agreed scope for the provided IT infrastructure.
The customer itself shall be responsible for the maintenance and input of its data and in-formation. Once the IT infrastructure has been stipulated, modification shall only be per-missible after written approval from kiwi suite. The customer shall bear the full responsibility for the accuracy and currency of its data. kiwi suite shall not assume any content-related re-sponsibility for the results of the data processing.
kiwi suite shall take appropriate measures to protect against unauthorised access by third parties the data and information transmitted by the customer. The customer is aware of the risk of unlawful access by third parties that might occur in spite of this. kiwi suite cannot be held accountable if third parties succeed in obtaining access to the data and information of the customer by illegal means in spite of the security measures.
When using the IT infrastructure, the customer shall be 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.
If there exists a justified suspicion that the customer or third parties accountable to the customer have violated the obligations of the GTC, then kiwi suite 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 customer. The customer shall be obligated to reimburse the expenditure of kiwi suite resulting from the suspension, including, in particular, the costs of the review and the prosecution of the violation. The customer undertakes to comprehensively indemnify and hold harmless kiwi suite with regard to any damage arising from alleged claims of third parties or from ordinances of the public authorities in the context of the non-compliance on the part of the customer with the obligations of these GTC or of an individual contract, including penalties and court and legal fees, if any, for the defence of kiwi suite.
9. Usage rights, copyright law, and licensing
The customer acknowledges that kiwi suite shall be exclusively entitled to all rights, in particular the exclusive exploitation, editing, and moral rights, to all software programs and their accompanying documentation as defined in the individual contract and released, re-spectively provided, to the customer. The customer shall have solely those powers over the software programs and the accompanying documentation that are stipulated in the individual contract and in these GTC. kiwi suite expressly reserves all other intellectual property rights. In particular, kiwi suite shall be exclusively entitled to all rights to the source code and the documentation of the software programs created, respectively re-fined, in the context of the performance of an individual contract.
In case of purchase of software programs and of individual programming, aside from the mandatory statutory rights which the customer is due pursuant to §§ 40d and 40e of the Austrian Copyright Law, the customer shall acquire the non-exclusive, non-transferable right to use the software within the scope agreed in the individual contract and for an unlimited time (“temporally unlimited usage permission”). The usage permission shall commence with the commencement of contract defined in the individual contract. The grant of this temporally unlimited usage permission shall be settled with the payment of a one-time lump sum.
In case the leasing of the software program is agreed in the individual contract, the customer 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 individual contract, but for a limited time (“temporally limited usage permission”). The usage right shall commence with the commencement of contract defined in the individual con-tract. The customer must pay a monthly fee for the duration of the individual contract for the grant of this temporally limited usage permission.
In the case of maintenance and support services by kiwi suite, the usage permission pursu-ant to Section 9.2 shall extend to any refinements to the software program through up-dates, if any, that are contractual subject matter.
The customer may only use the software program 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 customer may only use the software program for the agreed purposes. Each and any further use shall be forbidden to the customer. In particular, any sale and/or editing as well as transfer of the software programs and any accompanying documentation shall be inadmissible.
The customer may transfer its usage permission for the software programs to a third party only if kiwi suite 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 customer shall end automatically. The customer has no claim to approval from kiwi suite. In particular, kiwi suite can make its consent contingent upon the conclusion of a maintenance and support contract or an advance payment.
Documents, proposals, test programs or similar documentation of the software programs shall be the intellectual property of kiwi suite or of third parties. The customer shall not duplicate and/or provide these to third parties. If no contract is formed, these shall be given back or deleted/destroyed at the option of kiwi suite and shall not be used or shared.
At the demand of kiwi suite, the customer shall pay to kiwi suite a contractual penalty in the amount of ten times the actual annual user fee owed, regardless of culpability, for the unauthorised sharing of software programs and for use beyond the agreed scope of performance.
With regard to software products of third parties that kiwi suite releases to the customer, the current licence terms of the manufacturer of such software program shall take priority over the regulations of this section. kiwi suite 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.
The type and date of delivery or electronic provision of the software shall be stipulated in the individual contract. The customer shall install the software programs and bring them into operation. No acceptance shall take place with software programs that are to be self-installed by the customer. The five-day written complaint period pursuant to Section 11.8 shall apply here starting with the transfer, respectively provision, of the components. In-stallation and implementation services may be ordered separately by the customer and shall be invoiced by kiwi suite according to the current pricing list applicable on the date of the conclusion of the individual contract after written acceptance. If the installation and implementation of the software programs that form the subject matter of the contract are covered by the individual contract, then acceptance by the customer in accordance with Section 10.4 must take place.
The software programs shall be provided to the customer in machine-readable form. The source code shall not be released to the customer, and the customer shall have no claim to release thereof. This shall also apply to individual programming.
kiwi suite shall provide the software program in the version that is current on the date of conclusion of the individual contract. The specification of the software shall be guided exclusively by the individual contract.
If the delivery includes installation and implementation of software programs, then an ac-ceptance by the customer must take place. This shall only include the components that are relevant to the delivery and that shall be installed and implemented by kiwi suite. To this end, the customer shall perform an appropriate functional test of the program within a period of five working days after the installation and implementation. If any critical or severe defects (“defects that prevent operation”) emerge in the testing phase, kiwi suite shall resolve these within a reasonable time and stipulate a new acceptance date. If the customer does not notify kiwi suite immediately after end of the acceptance process and in writing of any defects that prevent operation that emerge during the testing phase, then the acceptance is successful. If the customer already uses the delivered/provided pro-grams in live operation before the acceptance and fails to complain within five days from the start of operation about any defects that prevent operation, then the program shall be considered accepted.
11. Performance malfunctions and warranty
kiwi suite shall provide the agreed deliverables according to the general standards in the software and IT sector. kiwi suite shall not owe any specific performance in the context the provision of deliverables.
kiwi suite shall not be liable for defects resulting from incomplete or flawed data of the customer. If the customer desires subsequent changes, the delivery period shall extend accordingly.
In any case, the customer itself shall be responsible for selecting deliverables as well as for the technical operating conditions. The customer shall bear the risk in terms of these meeting its requirements. For this reason, kiwi suite makes no warranty that these possess the characteristics expected by the customer, or that they are capable of the applications that the customer has in mind.
In the case of licensing of software programs or provision of (individual) programming, kiwi suite shall guarantee that the deliverables fulfil the specifications stipulated in the indi-vidual contract on the date of the transfer/provision. The details contained in the cata-logues, 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 individual contract expressly declares them to be contractual con-tent.
In the case of other deliverables, kiwi suite shall guarantee exclusively that these are provided by appropriately qualified employees.
The burden of proof for the existence of defects shall be borne by the customer. The presumption of defectiveness shall be excluded pursuant to § 924 ABGB (General Civil Code).
For deliverables of kiwi suite that carry an obligation to accept on the part of the customer, kiwi suite 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.
As regards all other deliverables, the customer shall examine these for defects pursuant to § 377 et seq. UGB. kiwi suite 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 customer shall support kiwi suite to a reasonable extent in terms of correction of defects (subsequent improvement) and, in particular, shall provide the relevant documents. kiwi suite 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 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 incourt assertion.
There shall be no warranty for defects and errors that are attributable to the responsibility of the customer or the customer’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 installa-tion and storage conditions); as well as damage in transport.
If the manufacturers of the components supplied by kiwi suite issue warranties, kiwi suite shall support the customer in the event that the customer asserts a warranty claim or assert the claim directly for the customer. The customer can assert claims, if any, arising from the warranty only in accordance with the manufacturer’s warranty conditions, including the manufacturer- and component-specific characteristics (warranty period, onsite warranty, bringin warranty, permissibility of component exchange, no transport cost absorption, etc.).
Warranty, respectively guarantee, claims on the part of the customer concerning deliver-ables purchased from third parties shall be limited to the assignment to the customer of such claims as kiwi suite itself has against the manufacturer, respectively its distributors (cf. Section 2.8). Moreover, as regards delivery, kiwi suite itself shall not be obligated to guarantee their deliveries.
12. Force majeure
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
With regard to consulting services, kiwi suite shall endeavour to the best of its knowledge and conscience to provide these as well as possible. The customer 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, kiwi suite shall not be liable to ensure that the respective project complies with all legal requirements through these consulting services.
kiwi suite shall guarantee indemnification – except in the case of personal injuries, death, or in the event of applicability of the Product Liability Law – only for damages that arise from malicious intent or gross negligence. Moreover, the liability of kiwi suite shall be limited in total to the amount of the one-time fee (in the case of purchase) or an agreed annual leasing fee (in the case of leasing), respectively an annual fee in the case of other services (maintenance and support). The customer shall be responsible for providing the evidence that the damage was caused by malicious intent or gross negligence on the part of kiwi suite.
kiwi suite shall not assume any liability for lost profit, savings that were anticipated but did not materialise, indirect or consequential damage, or for damage to logged data. The customer shall take all reasonable measures, in particular data backup and ongoing verification of results, in order to recognise any damage events as early as possible and to minimise the consequences.
Subject to limitation of actions in case of failure to do so, the customer shall assert in court within one year after becoming aware of the damage and the party at-fault all claims for damages that are not recognised in writing by kiwi suite.
Where kiwi suite provides deliverables with the help of third parties and warranty and/or liability claims arise against these third parties in this context, kiwi suite shall assign these claims to the customer. In this case, the customer shall refer to these third parties.
14. Remuneration and payment terms
The fees and any special payment conditions for the provision of deliverables by kiwi suite shall be defined in the individual contract. All fees shall be understood to be in euros and to include taxes, charges, and public costs.
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.
Unless otherwise stipulated in the individual contract, the deliverables of kiwi suite shall be invoiced according to the actual accrual and the resulting expenditure.
kiwi suite 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.
kiwi suite 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 customer in a reasonable amount.
One-time remunerations shall be invoiced after the provision of deliverables and on-going remunerations shall be invoiced quarterly in advance. The invoices submitted by kiwi suite, including VAT, shall be payable, free of any deduction or charge, not later than 14 days after receipt thereof. The payment conditions defined for the 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 kiwi suite.
In the event of default of payment by the customer, statutory default interest in an amount exceeding by 9.2 percentage points the base interest rate of the European Cen-tral Bank shall be invoiced starting from the day when the payment was due. Moreover, kiwi suite 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 customer.
In the event of default of payment, kiwi suite shall be entitled to cease, respectively cancel, its deliverables until the complete settlement of arrears. In such a case, kiwi suite shall also be permitted to make the software unusable for the duration of the default by using ap-propriate technical equipment, respectively settings. Moreover, kiwi suite shall in any case be entitled to make the fee for all deliverables that have already been provided payable immediately, regardless of any payment deadlines.
The customer may exercise against kiwi suite rights of set-off and retention only concerning uncontested counterclaims or counterclaims asserted in and finally adjudicated by the court.
All charges, duties, and taxes that arise from the conclusion of the contract and the utili-sation of the services shall be borne by the customer.
Any travel time accrued by employees of kiwi suite 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 customer in accord-ance 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 re-ceipts (copies).
15. Term of contract and termination notice
The contract term shall be defined in the respective individual contract.
Each party may terminate an individual contract concluded for a specific duration at the end of each calendar year by means of registered letter and subject to a three-month notice period starting with the arrival of the letter.
As regards an individual contract concerning a one-time deliverable, there shall be no right of ordinary termination.
As regards an individual contract that is concluded for a specific time, the individual contract shall automatically be renewed for a further year, provided that it has not been ter-minated by one of the parties with a registered letter, subject to a three-month notice pe-riod starting with the arrival of the letter, before the expiry of the respective contract term.
Each contracting party shall be entitled to terminate the contract for cause by means of a registered letter prematurely and without notice.
Cause shall exist, in particular, if the respective other party violates significant obligations arising from the individual contract 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, in the event of violation of the usage authorisation and in the event of default of payment.
In the event of termination for cause that is the fault of the customer, as well as in the event of unjustified termination by the customer, kiwi suite shall have a claim to payment without deduction for all deliverables until the next following ordinary termination date, respectively to the agreed full sum.
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 individual contract, the access of the customer shall be barred once the termination takes effect and the saved customer data shall be deleted. kiwi suite shall not be obligated to return the received data to the customer (cf. Section 3.3), and the customer itself shall thus be responsible for backing up the data in time.
Upon termination of contract, the customer shall immediately return to kiwi suite all records and documentation that were transmitted to it by kiwi suite.
Upon termination of contract and thereafter, kiwi suite shall support the customer upon request in terms of returning the services to the customer or to a third party under a separate, written agreement and at the hourly rates currently applicable at kiwi suite.
Upon termination of contract and thereafter, kiwi suite shall support the customer upon request in terms of returning the services to the customer or to a third party under a separate, written agreement and at the hourly rates currently applicable at kiwi suite.
16. Data protection
As a processor under data protection law, kiwi suite shall comply with the regulations of the Data Protection and Telecommunications laws and discharge the obligations to which it is bound when dealing with personal data. kiwi suite undertakes, in particular, to observe confidentiality of data according to § 15 of the Data Protection Act, as well as the obligations set forth in § 11 of the Data Protection Act.
kiwi suite shall not be obligated to verify the legitimacy of the data processings ordered by the customer. The legitimacy of relinquishing personal data to, and processing thereof by, kiwi suite shall be insured exclusively by the customer and obligations, if any, to inform or authorise shall be met exclusively by the customer as a controller (Auftraggeber) under data protection law.
kiwi suite shall take all reasonable measures pursuant to § 14 of the Data Protection Act in order to protect against unauthorised access by third parties data and information of the customer that is saved at the locations of kiwi suite. However, kiwi suite shall not be held ac-countable if third parties succeed by illegal means in obtaining access to the data and information of the customer in spite of these security measures.
Upon the conclusion of the contract, the customer consents to kiwi suite employing sub-providers to perform this task. kiwi suite shall timely notify the customer of any sub-providers so that the customer has time to forbid the employment if need be. However, the customer shall not unreasonably refuse its approval of the employment of subproviders.
Each party shall pledge to the other that all trade secrets brought to its knowledge in the context of this contract and its performance shall be handled as such and shall not be made accessible to third parties, provided that these secrets are not generally known or have 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 beyond the end of the contractual relationship.
The subcontractors associated with kiwi suite shall not be counted 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
The parties undertake to display mutual loyalty. However, unless expressly agreed otherwise, kiwi suite shall not be prevented from concluding identical or similar contracts with third parties.
The customer shall not entice away, either itself or via third parties, employees of kiwi suite that were appointed to provide the deliverables during the term of the contract and until one year from the end of the contract has expired. For each instance of breach, the customer undertakes to pay to kiwi suite a contractual penalty in the amount of twelve times the gross monthly salary that the concerned employee last received from kiwi suite, but at least the salary under the collective labour agreement for the employee of a company that provides services in the automatic data processing and information technology sector at the experience level of special duties.
The contracting parties shall appoint in the individual contract qualified and competent employees who can make or effect decisions.
kiwi suite shall be entitled to cite to third parties for reference purposes the customer and the type of deliverables provided to the customer.
kiwi suite may transfer its rights and duties under the individual contract to one or several third parties without the approval of the customer. The customer shall have no right to terminate in the event that the contract is transferred.
19. Final provisions
In the event of a contradiction between the individual contract and these GTC, the individual contract shall take precedence.
Modifications of and supplements to these GTC or an individual contract shall require written form; the same shall apply to a waiver of the written form requirement. Letters sent via email, surface mail, or fax shall count as written declarations within the meaning of these GTC.
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 replaced by an analogous, valid regulation that most closely reflects the commercial purpose of the invalid or infeasible clause.
These GTC and individual contracts concluded on the basis thereof shall be governed ex-clusively by the substantive law of the Republic of Austria, to the exclusion of the conflict of law rules of the United Nations Convention on Contracts for the International Sale of Goods. The same shall apply if the deliverables of kiwi suite are provided abroad.
The competent court for all disputes, including those regarding the question of the lawful formation of an individual contract, shall exclusively be the court having jurisdiction ra-tione loci and ratione materiae in 1010 Vienna, Austria.