General Terms of Use for the Software-as-a-Service (“SaaS”) application omis4.0 provided by omis GmbH (Reg. No. 587265a; Regional Court of Ried im Innkreis), Gewerbepark 11, A-4943 Geinberg (Effective as of April 2022)

1. General Provisions and Scope

1.1 The use of the SaaS application omis4.0 (hereinafter “SOFTWARE”) provided by omis GmbH (hereinafter “Provider”) in accordance with the currently valid module overview, including the product description, is subject to these General Terms of Use.

1.2. The version of these General Terms of Use that is current at the time the contract is concluded, available at https://www.omis.at/de/AGB.html, shall apply.

1.3 These General Terms of Use apply exclusively. The Customer’s terms and conditions do not apply. Any counter-confirmations or other communications from the Customer referring to its own terms and conditions are expressly rejected.

1.4 In the event that the Customer permits third parties to use the SOFTWARE, the Customer warrants that these General Terms of Use will be made available to such third parties, and the Customer shall be liable for their actions to the same extent as for its own. A “third party” is any person other than the contracting parties, even if the third party has any relationship with a contracting party (“Third Party”). The term “Customer” within the meaning of these General Terms of Use therefore also includes third parties to whom these General Terms of Use have been transferred.

2. Subject Matter of the Contract, Conclusion of the Contract, and Scope of Services

2.1 The Provider provides the Customer with SaaS services via the Internet in the field of maintenance software, which handles important maintenance and servicing tasks for businesses.

2.2 The subject matter of the contract is

2.2.1 the provision of the Provider’s SOFTWARE for use via the Internet and

2.2.2 the provision of storage space on the Provider’s servers (the services described in sections 2.2.1 and 2.2.2 are hereinafter collectively referred to as “SaaS Services”).

2.3 The Provider is permitted to engage subcontractors in the provision of SaaS services, and in particular in the provision of storage space. The use of subcontractors does not relieve the Provider of its sole obligation to the Customer to fully perform the contract.

2.4 In general, the contract is concluded when the customer—possibly through a sales agent of the provider—expressly accepts a written or emailed offer from the provider (whether verbally, in writing, via an online form, or by email). Notwithstanding the preceding sentence, the contract, including the terms contained in the prior offer and these General Terms of Use, is concluded no later than upon the customer’s first login to the provider’s server or that of its relevant subcontractor (hereinafter collectively referred to as the “provider’s server”), by which the customer agrees to the validity of these General Terms of Use of the provider.

2.5 The scope of services, including availability provisions, is set forth in the provider’s offer accepted by the customer and in the applicable Terms of Use.

2.6 The Provider shall make the SOFTWARE available to the Customer for use in the agreed-upon version at the router output of the data center where the Provider’s server is located (“Handover Point”). The Provider is not responsible for establishing or maintaining the data connection between the Customer’s IT systems and the described Handover Point. The Customer’s connection to the Internet and the maintenance of the network connection, as well as the procurement and provision of the hardware required for this on the Customer’s side, are therefore not covered by this Agreement. The Customer is obligated, at its own expense and risk, to ensure that its company has an Internet connection that meets its requirements and to maintain this connection.

2.7 The Provider shall make user documentation (manual) regarding the standard configuration and any specifications available in electronic form as part of the SOFTWARE’s online help. The Customer’s non-exclusive and non-transferable right to use this manual online is covered by the fee for use of the SOFTWARE. The Customer is only authorized to edit or distribute the user documentation with the Provider’s prior written consent.

2.8 The Provider shall ensure the security of the transmitted data to the extent that this is feasible with reasonable economic and technical effort; in particular, the Provider shall install state-of-the-art firewalls on the Provider’s server and regularly updated virus scanners in the DMS (Document Management System) to prevent unauthorized access to the Customer’s data and to prevent the transmission of malicious code (viruses, Trojans, dialers, etc.). The Provider is entitled to delete its customers’ data containing malicious code if the threat cannot be reliably eliminated in any other way that is technically and economically reasonable.

2.9 Under the warranty provisions of these General Terms of Use, the Provider shall perform regular maintenance and upkeep of the SOFTWARE and the Provider’s server. To this end, the Provider shall diagnose and rectify defects and malfunctions within a reasonable period of time and provide support for its services during its normal business hours.

2.10 In order to print the data generated and stored on the Provider’s server using the SOFTWARE on the Customer’s own printer or to view it on the Customer’s own computer (e.g., as a PDF), the Customer requires appropriate third-party software, which the Customer must install and configure on their computer (client) before they can perform these functions. The Provider will not provide any third-party software and/or instructions for its installation and configuration for this purpose. Rather, it is the Customer’s sole responsibility to provide or maintain the appropriate third-party software, etc., in a functional state and compatible with the SOFTWARE. Please note that the customer will also be required to accept and comply with the third-party provider’s license terms (EULA) in order to use the corresponding functions of the SOFTWARE.

2.11 In addition, the Provider provides training services upon separate request and for a separate fee. Programming costs incurred in developing special functionalities tailored to the Customer’s requirements will be billed separately on a time-and-materials basis at hourly rates to be agreed upon separately.

2.12 Either party may request changes to the scope of services at any time (“Change Request”). However, a requested change must include a detailed description of the change, the reasons for it, and its impact on the schedule and costs, in order to allow the recipient of the Change Request to make an appropriate assessment. A Change Request becomes binding only upon mutual agreement (particularly regarding the schedule and cost implications) and the legally valid signatures of both contracting parties.

2.13 The Provider reserves the right, within reasonable limits for the Customer, to update all system and software versions (e.g., the omis4.0 system, operating system, security-related software, SSL certificates, etc.) to reflect the current state of the art at any time. If the Customer refuses this adaptation, they shall bear the associated risk alone, particularly with regard to IT security, data protection, and cybersecurity, and shall fully indemnify and hold the Provider harmless from any third-party claims upon first request. If third-party systems (e.g., systems of other customers running on the same server) are affected as a result, the Customer shall also bear the costs incurred by the system transfer to another server alone and shall, in this regard, fully indemnify and hold harmless both the Provider and the relevant third parties upon first request.

2.14 The provider recommends using the following browsers: Chrome, Edge (Chrome version), Firefox, and Safari. The provider advises against using other browsers, as these have not been tested by the provider. The provider cannot offer support for browsers that have not been tested by the provider. It is also possible that browser updates may cause functionality issues.

3. Provision of the SOFTWARE

3.1 For the duration of this Agreement, the Provider shall make the SOFTWARE available to the Customer via the Internet in its current version for a fee. To this end, the Provider shall set up the SOFTWARE on the Provider’s server, which is accessible to the Customer via the Internet.

3.2 The current scope of functionality of the SOFTWARE is set forth in its current specification (i.e., the module description of the standard configuration provided with the offer, as well as the specification contained in any requirements specification).

3.3 The Provider continuously develops the SOFTWARE and will improve it through ongoing updates and upgrades.

4. Rights of Use for the SOFTWARE

4.1 The Provider grants the Customer the non-exclusive and non-transferable right to use the SOFTWARE specified in this Agreement for the duration of the Agreement, to the extent specified in the Agreement and in its current version—including current releases and updates—and the associated functionalities, via remote access to the Provider’s server.

4.2 The Customer may reproduce and modify the SOFTWARE only to the extent that such reproduction and modification are covered by the intended use of the SOFTWARE as specified in the current service description.

4.3 Necessary reproduction includes loading the SOFTWARE into the working memory on the provider’s server, but does not include even temporary installation or storage of the SOFTWARE on data storage media (such as hard drives or similar) of the hardware used by the customer.

4.4 No further rights to the SOFTWARE are granted. In particular, the Customer is not authorized to reproduce, sell, or temporarily transfer the SOFTWARE or any part thereof beyond the scope specified in this Section 4; specifically, the Customer may not rent or lend the SOFTWARE, nor may the Customer use the Provider’s services beyond the contractually agreed-upon use and these General Terms of Use, or make them available to third parties.

4.5 Any transfer of the right to use the SOFTWARE to third parties requires the provider’s verifiable prior consent and verifiable prior completion by the third party’s users of the training courses prescribed by the provider, which may be conducted by the provider itself or by the customer, depending on the user group and the provider’s specifications.

5. Allocation of storage space

5.1 The Provider allocates a defined amount of storage space on a Provider server to the Customer for the storage of their data. The Customer may store content on this Provider server up to a total of 200 GB, in accordance with the technical specifications (module description) of the Provider server, which are available on the Provider’s website at https://www.omis.at/. If the storage space is no longer sufficient for storing the data, the Provider will notify the Customer. The Customer may order additional storage space, subject to availability from the Provider.

5.2 The Provider shall ensure that the stored data is accessible via the Internet in accordance with the terms of this Agreement.

5.3 Except in connection with the Provider’s consent as set forth in Section 4.5 above, the Customer is not authorized to transfer this storage space to a third party, either in whole or in part, whether for a fee or free of charge.

5.4 The Customer agrees not to store any content on the storage space whose provision, publication, or use violates applicable law or agreements with third parties.

5.5 The Provider is obligated to take appropriate measures to prevent data loss and unauthorized access by third parties to the Customer’s data in accordance with the terms of this Agreement. To this end, the Provider will perform daily backups, scan the Customer’s data in the DMS for viruses, and install state-of-the-art firewalls.

5.6 In any case, the Customer remains the sole owner of the data and may therefore at any time request the return of some or all of the data in accordance with the terms of this Agreement.

5.7 Upon termination of the contractual relationship, the Provider shall immediately return to the Customer all data stored on the storage space allocated to the Customer, in accordance with the terms of this Agreement.

5.8 The data will be delivered, at the customer’s discretion, either by handing over data storage media or by transmitting it via a data network. The customer is not entitled to receive software suitable for using the data.

6. Support and Availability (Service Level Agreement – “SLA”)

6.1 Support requests may only be submitted by the customer’s qualified personnel (trained key users). These are either employees trained by the provider or other trained operators who have been notified to the provider. The scope of support is as follows:

• Answering questions about the SOFTWARE and its use;
• Remote assistance (by phone or web conference) with using the SOFTWARE;
• Consulting and providing solutions related to the SOFTWARE.
  Support requests that clearly indicate a lack of training are excluded from this.

Support is available Monday through Friday from 8:00 AM to 4:00 PM (CET/CEST). For absolute emergencies (e.g., complete system failure), a 24-hour hotline is available.
An omis4.0 support system (support.omis.at) is available for support requests, through which key users can submit support requests to the provider’s support team. The provider will respond to customer support requests via the appropriate channel. For requests not submitted via this omis 4.0 support system, compliance with the response times announced by the provider cannot be guaranteed and is non-binding.

6.2 The Provider is entitled to interrupt the use of the SaaS Services for up to 2 hours at a time, up to twice per quarter, for maintenance or servicing work on the SOFTWARE or the Provider’s server. In such cases, customers will be notified via notices on the Provider’s server. The Customer shall not use the SaaS services during maintenance or repair periods—to the extent that use is still technically possible. If the Customer nevertheless uses the SaaS services during these periods, they do so at their own risk of data loss.
During the respective maintenance periods, the Provider must establish a help desk to coordinate all contractually agreed services, where the Customer can report malfunctions of the SOFTWARE and issues with other services provided by the Provider, as well as obtain information. Reports may be submitted in German or English.

6.3 The Provider shall ensure that the total downtime of the SaaS services does not exceed 48 hours per calendar year, excluding periods of regular maintenance or servicing. Downtime begins upon receipt of a valid fault report and ends when the Provider notifies the Customer that the services are operational again. Only operational disruptions (i.e., system unavailable, unable to log in, unable to create reports, unable to process “imminent danger” reports, and unable to process legally required checks/checklists) are taken into account when calculating downtime.
If the contractually agreed availability of the SaaS services as set forth in the preceding paragraph is not achieved for reasons demonstrably attributable to the Provider or its vicarious agents, without a case under Section 6.2, Paragraph 1 being present, the Customer is entitled to demand a lump-sum compensation for downtime of €100.00 per full hour of downtime from the Provider.
If, for reasons demonstrably attributable to the Provider, the SaaS services are unavailable for more than 72 hours per calendar year, the Customer is entitled to terminate the contract for cause. This right to terminate for cause expires if the Customer does not notify the Provider in writing of the termination within one week of the conditions arising.

6.4 The Customer is obligated to notify the Provider immediately if the SaaS services become unavailable without prior notice of repair or maintenance work. In the event of repeated reports of service disruptions by the Customer that are grossly negligent or intentionally false, the Provider is entitled to charge the Customer for the costs incurred in processing such reports, with a minimum charge of EUR 50.00 per report. The contracting parties reserve the right to claim higher or lower damages.
The customer may submit fault reports during the above support hours (see Section 6.1), initially also by telephone. However, the receipt of a fault report via the omis4.0 support system support.omis.at is decisive for calculating the response time. Fault reports may only be submitted by qualified personnel (trained key users) of the customer. These are employees specially trained by the provider

6.5 Response time is the period from the time the customer notifies the provider in accordance with Section 6.4 until the start of troubleshooting or until a measure aimed at resolving the fault is implemented.
The Provider shall ensure that the response time upon receipt of a proper fault report (for faults relevant to downtime) on the Provider’s business days, Monday through Friday from 8:00 a.m. to 4:00 p.m. (business hours), does not exceed 240 minutes, and during all other times (outside business hours) does not exceed 480 minutes.
The Provider will immediately notify the Customer of the repair work and carry it out in accordance with the technical specifications as quickly as possible.
If the fault cannot be resolved promptly, the Provider will notify the Customer at short notice via email or through the omis4.0 support system at support.omis.at, stating the reasons and the estimated time required to resolve the fault.

6.6 In order to keep support and maintenance costs as low as possible, the Provider reserves the right to incorporate all customizations requested by the Customer into the standard version (a uniform software version for all customers). The Customer hereby acknowledges and agrees to this.

6.7 The customer acknowledges that, in the event of excessive resource usage or denial-of-service attacks by third parties, the provider’s servers may become overloaded and may therefore fail to function. Any claims against the provider in this regard are excluded.

7. Customer Obligations

7.1 The Customer shall provide the Provider with reasonable assistance in the performance of the contractual services.

7.2 The customer agrees not to store any content on the provided storage space that is illegal or violates any laws, regulatory requirements, or the rights of third parties.

7.3 The Customer is obligated to take appropriate measures to prevent unauthorized access by third parties to the protected areas of the SOFTWARE. To this end, the Customer shall, where necessary, instruct its employees to comply with copyright laws.

7.4 Notwithstanding the Provider’s obligation to back up data in accordance with the terms of this Agreement, the Customer is solely responsible for entering and maintaining the data and information required to use the SaaS services.

7.5 The customer is required to check its data and information for viruses or other malicious components before entering them and to use state-of-the-art antivirus software for this purpose.

7.6 During system configuration, a “User ID” and password are generated for each user to access and use the SaaS services; these are required for continued use of the SaaS services. The Customer is obligated to keep the “User ID” and password confidential and not to disclose them to third parties.

7.7 The content stored by the Customer in the storage space designated for them may be protected by copyright and data protection laws; in particular, the backup of such data may affect the copyright and data protection interests of third parties. The Customer hereby grants the Provider the right to make the content stored on the Provider’s server accessible to the Customer upon the Customer’s requests via the Internet and, in particular, to reproduce and transmit such content for this purpose, as well as to reproduce it for the purpose of data backup.

7.8 The Customer is solely responsible for all content used and data processed by the Customer, as well as for any legal rights required in connection therewith. The Provider does not review the Customer’s content and generally does not check the content used by the Customer with the SOFTWARE.

7.9 In this context, the Customer agrees to fully indemnify and hold the Provider harmless, upon first request, from any liability and all costs, including potential and actual costs of legal proceedings, should the Provider be held liable by third parties—including the Customer’s employees personally—as a result of alleged acts or omissions by the Customer. The Provider shall notify the Customer of the claim and, to the extent legally possible, give the Customer the opportunity to defend against the asserted claim. At the same time, the Customer shall immediately and fully disclose to the Provider all information available to the Customer regarding the facts that are the subject of the claim. Any further claims for damages by the Provider remain unaffected.

8. Payment, Late Payment, Account Suspension, Set-off, Withholding, Value Protection, and Electronic Invoicing

8.1 The Customer agrees to pay the Provider the agreed-upon monthly fee, due in advance, plus applicable VAT, for the provision of the SOFTWARE and the allocation of storage space. The actual amount of the fee is based on the extent of the services utilized during the preceding period. Unless otherwise agreed, the fee is further based on the Provider’s offer valid at the time the contract is concluded.

8.2 The customer must submit any objections to the billing for services provided by the provider in writing to the address specified on the invoice within eight weeks of receiving the invoice. Once this period has expired, the billing shall be deemed approved by the customer.

8.3 If the customer defaults on payments, default interest shall be payable from the due date at the rate applicable to commercial transactions.
If the customer is in default of payment of the monthly fee for two consecutive months, or if, over a period extending beyond two months, the customer is in default of payment of a fee amount equal to or exceeding the contractually agreed monthly fee for two months, the Provider is entitled to block access to the SaaS services. The Customer’s obligation to pay the fee, even during the period of the block, remains unaffected by this.
The block generally takes effect on the first day of the month and is announced with at least 5 calendar days’ notice. It is the customer’s sole responsibility to ensure that they save or print the data stored by them on the provider’s server as PDF files in a timely manner.
After this period has expired and prior to full payment of all outstanding claims, the provider is not obligated to grant the customer access to the agreed-upon SaaS services and/or to the data stored on the provider’s server.
If the payment is in default for a period of three consecutive months or in an amount equal to three months’ monthly fees, the Provider may terminate the contractual relationship without notice.
The Provider reserves the right to assert further claims arising from the payment default.

8.4 The Customer may set off claims only if and to the extent that counterclaims have been legally established by a court or acknowledged by the Provider. The Customer is not entitled to withhold payments.

8.5 The remuneration specified in Section 8.1 is indexed to inflation, such that the agreed amounts will change in proportion to the change in the Harmonized Index of Consumer Prices (HICP) 2015 published by Statistics Austria. If this index is no longer published, the index that replaces it shall serve as the basis. The starting point is the index figure published in the month the contract was concluded. The remuneration is adjusted annually at the beginning of each new calendar year. The first adjustment is made to the extent that the index value changes from the month the contract is concluded to the value in the following November. The index figure published in that November then forms the new starting point for calculating further adjustments. These, in turn, are determined based on the change up to the following November for the subsequent calendar year.

8.6 The Provider generally sends invoices to the Customer in electronic form. The Customer expressly agrees to receive invoices in electronic form.

9. Acceptance, Warranty, and Liability

9.1 Prior to the “go-live” of the SaaS services, an acceptance test will be conducted (for new implementations or subsequent customizations). If the acceptance test is delayed by events beyond the Provider’s control, the acceptance shall be deemed to have taken place automatically two weeks after “go-live.” Any defects must be reported by the customer via the omis4.0 support system at support.omis.at.”
The Provider warrants the services it provides in accordance with the following provisions, provided that the impairment is not due to agreed-upon limitations on availability as set forth in the Service Level Agreement (see Section 6). The consequences of non-contractual availability of the SaaS services are conclusively regulated in this Section 9 and the Service Level Agreement (see Section 6), subject to mandatory statutory provisions. Due to the nature of network connections, the Provider assumes no warranty for the functionality of the data networks between the Customer and the Provider’s server, unless the relevant connections are to be provided and maintained by the Provider. Any representation of characteristics or provision of a warranty requires the Provider’s express written confirmation. Representations and descriptions in the Provider’s documents and on its websites, as well as promotional statements, do not constitute warranted characteristics or warranties.

9.2 The Provider guarantees the professional and diligent provision of the SaaS Services in accordance with the terms of this Agreement. The Provider is responsible for maintaining the SaaS Services, including the associated SOFTWARE. To this end, the Provider shall diagnose and resolve defects and malfunctions within a reasonable period of time and provide support for the SaaS Services during its normal business hours.

9.3 If SaaS services are provided for use in a defective manner due to circumstances for which the Provider is responsible, the Provider is obligated to restore the defect-free usability of the SaaS services within a reasonable period of time, provided that the Customer promptly notifies the Provider of the defect in writing. Errors in the SOFTWARE are limited to reproducible deviations from the specifications set forth in the contract or in the module description. In the case of third-party software that the Provider has licensed for use by the Customer as part of the SaaS services, rectification of defects consists of procuring and installing new releases, updates, or bug fixes available to the Provider, provided that the Provider can procure them with reasonable effort.

9.4 If the SaaS services are not provided in accordance with the contract even after the Customer has set a reasonable grace period of at least 10 days in writing, the Customer is entitled to terminate this contract in writing with respect to the defective service in question without notice. The Customer is only entitled to terminate the entire contract if continuing to adhere to the contract as a whole is unreasonable.

9.5 If a third party asserts valid claims against the Customer for infringement of an industrial property right or copyright arising from the SaaS services provided by the Provider and used by the Customer in accordance with the contract, and if the use of the SaaS services is thereby impaired or prohibited, the Provider shall have the option either to acquire a license from the third party or to adapt its services, while maintaining the same functionality, so that they no longer infringe upon intellectual property or copyrights. The Customer shall be exempt from the obligation to pay the monthly fee until the SaaS services can be used again. A prerequisite for this is that the Customer immediately notifies the Provider in writing of any third-party claims regarding an infringement of intellectual property or copyright, does not acknowledge the alleged infringement, and conducts any dispute, including any out-of-court settlements, only in agreement with the Provider. To the extent that the Customer is responsible for the infringement of intellectual property or copyright, claims against the Provider are excluded. The same applies if the infringement of intellectual property rights is based on specific instructions from the customer or on a use of the SaaS services that the provider could not have foreseen.

9.6 Any further or other claims by the Customer arising from a defect in the SaaS Services are excluded, unless otherwise provided in the following provisions of this Section 9.

9.7 In the event that the Provider’s services are used by unauthorized third parties using the Customer’s login credentials, the customer shall be liable for any resulting charges under civil law until receipt of the customer’s request to change the access data or notification of loss or theft, unless the customer proves that he is not at fault for the unauthorized third party’s access.

9.8 The Provider is entitled to immediately suspend access to the system and storage space if there is reasonable suspicion that the stored data is unlawful and/or infringes the rights of third parties. A reasonable suspicion of illegality and/or a rights infringement exists in particular if courts, authorities, and/or other third parties notify the Provider thereof. The Provider must immediately notify the Customer of the suspension and the reason for it. The suspension must be lifted as soon as the suspicion is dispelled.

9.9 In cases of slight negligence, the Provider and its employees, contractors, or other agents (“Persons”) shall not be liable for property damage or financial loss, regardless of whether such damage consists of direct or indirect damage, lost profits, consequential damages resulting from defects, damages due to delay, impossibility, breach of a positive contractual obligation or claim, fault at the time of contract conclusion, due to defective or incomplete performance, or damages arising from third-party claims against the customer. The existence of gross negligence or intent must always be proven by the injured party. To the extent that the Provider’s liability is excluded or limited, this also applies to the personal liability of its People.
The foregoing limitations of liability do not apply if the damage results from risks that are neither typical of the legal relationship nor foreseeable under the specific circumstances of the individual case.
The provider shall not be liable for delays in the provision of the SaaS services, in particular due to failure or impairment of the customer’s Internet access, force majeure, e.g., mobilization, war, riots, epidemics, pandemics, or similar events for which the provider is not responsible, such as strikes or lockouts.

9.10 The amount of any liability claims against the Provider shall be limited to the net value of the specific item of service that may give rise to the claim, or to the actual coverage provided by any insurance policy taken out by the Provider, whichever amount is higher.

9.11 Claims for damages against the provider are barred by the statute of limitations 12 months after the provider has rendered its services; in the case of tortious liability, the statute of limitations begins to run upon the provider’s knowledge or grossly negligent ignorance of the circumstances giving rise to the claim and the identity of the party liable for damages.

9.12 Any claims for damages by the Customer beyond those expressly specified in this Agreement, regardless of the legal basis, are excluded. This does not apply in cases where liability is mandatory.

10. Term, Termination, Data Backup Upon Termination of the Contract

10.1 Unless otherwise agreed, the term and termination of the contract shall be governed by the provider’s offer in effect at the time the contract is concluded.

10.2 This does not affect either party’s right to terminate the contract immediately for good cause. In particular, the Provider is entitled to terminate the contract immediately if the Customer fails to make due payments despite a reminder and the granting of an extension, or if the Customer violates the contractual provisions governing the use of the SaaS services. Unless otherwise provided in this contract, termination without notice requires that the other party be given written notice and requested to remedy the alleged grounds for termination without notice within a reasonable period of time.

10.3 Upon termination of the contract, the Customer is responsible for backing up all data created using the SOFTWARE and stored on the Provider’s server in a readable format suitable for the Customer’s purposes, either by transferring it in full to a system owned by the Customer or by saving it on a separate data storage medium, in a timely manner prior to the expiration of the contract. The customer has no right to receive the software application suitable for reading and reactivating the data.

11. Confidentiality, Data Protection, and Cloud Computing

11.1 The parties are obligated to keep permanently confidential, not to disclose to third parties, record, or otherwise exploit any information regarding the other party that has come to their knowledge or may come to their knowledge in connection with this Agreement, which is designated as confidential or which, based on other circumstances, is recognizable as trade or business secrets (hereinafter “Confidential Information”), to permanently keep such information confidential, not to disclose it to third parties, record it, or otherwise exploit it, unless the other party has expressly consented to such disclosure or use in writing, or the information must be disclosed pursuant to law, a court order, or an administrative decision.
The information shall not be considered confidential information within the meaning of this Section 11.1 if it

• were already known to the other party without having been subject to a confidentiality obligation,
• are generally known or become known without breaching the confidentiality obligations assumed,
• disclosed to the other party by a third party without breaching any confidentiality obligation.

The obligations under this Section 11.1 shall survive the termination of this Agreement.

11.2 The collection, processing, and use of personal data is carried out solely and under the customer’s own responsibility as the controller within the meaning of the EU General Data Protection Regulation (GDPR) and other data protection regulations, in particular the Data Protection Act (DSG) and the Telecommunications Act (TKG).
The Provider does not collect, process, or use the personal data of the Customer and its employees for its own purposes, but performs such tasks solely as a service provider on behalf of the Customer in strict compliance with the Customer’s instructions (“processing on behalf of the Customer” within the meaning of Article 28 of the GDPR). The details are governed by a contract regarding data processing to be concluded separately between the Provider and the Customer, if applicable. In addition, the following principles apply.

11.3 The Customer is responsible for complying with the provisions of the GDPR, the DSG, and other data protection regulations, and warrants that, in connection with the use of the SaaS Services, it is authorized under applicable data protection laws to collect, process, and use the personal data of its employees or its business partners and their employees. The Customer warrants that, with regard to personal data, the necessary authorization has been obtained prior to its transfer to the Provider. With respect to the nature and scope of the data provided by the Customer, the Provider shall comply fully with the Customer’s instructions regarding the collection, processing, and use of such data. Instructions must be communicated in writing in a timely manner. The Provider’s employees entrusted with the collection, processing, and use of personal data are obligated and instructed to maintain data confidentiality in accordance with the provisions of the GDPR and the DSG.

11.4 As soon as and to the extent that the Provider uses the services of other (sub-)providers to provide the SaaS services—in particular, if the SOFTWARE and the customers’ data are not stored on the Provider’s own servers for remote access but rather on servers of cloud service providers—the customers and the Provider are required to ensure compliance with data protection regulations through a separate contractual agreement on commissioned data processing. The following principles apply:
As soon as and to the extent that the customer uses the SaaS services as cloud services, the Provider continues to act as a mere processor within the meaning of Article 28 of the GDPR on behalf of the customer. The customer remains responsible for compliance with data protection regulations. As the controller, the customer must continue to ensure the lawfulness of all data processing; in particular, the customer must fulfill its obligations to erase data, correct inaccurate data, ensure the blocking of data, and provide the data subject with information—in accordance with the provisions of the GDPR—regarding the data stored about them. The provider will support the customer in fulfilling these obligations to the extent of its technical capabilities.
If the contract with the customer provides for the use of a cloud service provider, the provider will only collaborate with cloud service providers that carry out data processing within the European Economic Area (EEA) or Switzerland and, for its part, establish the legal basis required under data protection law for permissible commissioned data processing in a written contract with the commissioned cloud service providers, which ensures compliance with the customer’s instructions and the technical and organizational security measures.

12. Governing Law, Jurisdiction, and Amendments to the Terms of Use and Service Descriptions

12.1 This Agreement shall be governed exclusively by Austrian law, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and the conflict-of-laws rules of private international law.

12.2 The exclusive venue for any disputes arising from this contract is A-4910 Ried im Innkreis. Notwithstanding this, the Provider is entitled, at its discretion, to bring an action against the Customer in any other court that may have jurisdiction under national or international law.

12.3 These General Terms of Use may be amended provided that such amendments do not affect the essential terms of the contractual relationship and are necessary to adapt to developments that were unforeseeable at the time the contract was concluded and whose non-consideration would significantly disrupt the balance of the contractual relationship. Essential provisions include, in particular, those regarding the nature and scope of the contractually agreed services and the term of the contract, including provisions regarding termination. Furthermore, adjustments or additions to the General Terms of Use may be made to the extent that this is necessary to resolve difficulties in the performance of the contract arising from regulatory gaps that emerged after the contract was concluded. This may be the case, in particular, if case law changes and one or more clauses of these General Terms of Use are affected by such changes.

12.4 The service specifications may be amended if there is a valid reason to do so, provided that the customer is not objectively worse off as a result compared to the service specifications included at the time the contract was concluded (e.g., retention or improvement of functionalities) and there is no significant deviation from those specifications. A valid reason exists if there are technical innovations on the market for the services owed or if third parties from whom the Provider obtains the input services necessary to provide its services change their service offerings.

12.5 Any changes to the General Terms of Use and/or the Service Descriptions intended pursuant to Sections 12.3 and 12.4 shall be communicated to the Customer in writing at least six weeks before they take effect. The Customer shall have a special right of termination upon the effective date of the changes. If the Customer does not terminate the agreement in writing within six weeks of receiving the notice of changes, the changes shall become part of the agreement upon their effective date. The Customer shall be specifically notified of this consequence in the notice of changes.

13. Miscellaneous

13.1 No oral side agreements have been made. Any amendments, additions, or supplements to this contract are valid only if agreed upon in writing by the contracting parties. This also applies to any amendment to this provision of the contract.

13.2 Should any provision of this Agreement be or become invalid in whole or in part, a valid provision that most closely approximates the economic purpose of the invalid provision shall be deemed to have been agreed upon. This also applies if the invalidity of a provision is based on a standard of performance or time specified in the contract; in such cases, a legally permissible standard of performance and time that comes as close as possible to the intended purpose shall replace the agreed provision. The validity of the remainder of the contract shall remain unaffected. The same applies in the event of a loophole requiring supplementation.

13.3 The Customer may transfer the rights and obligations under this Agreement to a third party only with the Provider’s prior written consent.

13.4 Notices from the Provider to the Customer shall be deemed legally effective when sent to the Customer’s most recently provided mailing address or email address. The Customer must immediately notify the Provider in writing of any changes to the Customer’s contact information or authorized representatives.