en

AGB

Version: 01.01.2020

1. General provisions

This Contract relates to the acquisition of permission to use a protected work. The Principal shall not acquire any rights beyond the use provided for under this Contract through the involvement of the Principal in the production or user-specific adaptation of the software. The Contractor grants the Principal the right to use the Contractor's software and databases solely to the extent necessary to fulfil the specific contractual obligations. If the subject of the agreement relates to the creation and/or usage of databases, the Principal shall not acquire any rights in the programmer's work in excess of the usage pertaining to use of the database.

2. Termination

The Principal shall be entitled to terminate this Contract with good cause at any time by unilateral declaration, subject to a notice period of 6 months. The requirement of good cause shall in particular be deemed to have been met in the event that insolvency proceedings resulting in the liquidation of the Contractor are initiated or the initiation thereof is refused on the grounds that the assets would be insufficient to cover the costs, in the event of any circumstances that evidently render timely fulfilment of the order impossible, or if the Contractor itself or a person involved by it for the purpose of fulfilment of the order breaches any material contractual provisions (inclusive of confidentiality obligations).

Upon termination of the contractual relationship all master and transaction data held in electronic form (excel or CSV format) shall be transferred to the Principal by the Contractor within 2 months. The data shall be provided in the form of individual tables. The mechanism for establishing links between the tables forms part of our database expertise and will not be disclosed.

3. Contractual amendments

It is agreed that this Contract may only be amended in writing.

4. Insolvency/dissolution of the Company (option in conjunction with the storing of the source program)

In the event that insolvency proceedings are initiated with respect to the assets of the Contractor resulting in the liquidation of the Company, or in the event that the initiation of such insolvency proceedings is refused on the grounds that the assets would be insufficient to cover the costs, the Principal shall receive the right of usage referred to in the following paragraph over the module licensed at the time of insolvency. The Contractor shall be granted the opportunity to continue business operations in the normal manner through a new company (hive-off vehicle). To this effect, the Principal declares that it is willing to adapt the contracts accordingly.

5. Taking over the software following insolvency/dissolution of the Company (option in conjunction with the storing of the source program)

The Principal may acquire the OMIS software in the version valid at the time of purchase for a price of 4 annual instalments. Continuing usage of the software after termination of the Contract shall only be permitted for the properties/branches/filling stations belonging to the Principal's network within the relevant contractual area. The provision to any third party for use (even free of charge) shall not be permitted.

From this time onwards, the services, as well as any services covered by the hosting agreement (operation of the basic servers at the data centre, including licences for the basic servers, voice call connection, text messaging, fax services, …) shall no longer be provided.

6. Storing the source programs with a third party

The Contractor shall safely store the source program of the latest version of OMIS once each year for accounting purposes on a suitable storage medium in accordance with statutory provisions.

The versions approved for storage by the Contractor and the Principal shall be stored by the Contractor as a source program with the fiduciary agent Software Escrow International GmbH. At the time of storage, the Contractor shall instruct the fiduciary agent or its successors to release the source program to the Principal upon presentation of a written declaration of consent by the Contractor or upon presentation of the original version or a certified copy of an order to institute insolvency proceedings of an [authority] in the country in which the Contractor’s fiduciary agent has its registered office [which] certifies that judicial insolvency proceedings [have been] launched in relation to the assets of the Contractor that will result in the liquidation of the business or that the launch of such insolvency proceedings has been refused due to insufficient assets. In the event that the Contractor is permanently or temporarily unable or unwilling to maintain and enhance the software subject to the terms agreed upon in the contract concluded at the relevant date on financial or other grounds, or - in the absence of such a Framework Contract - subject to the terms set forth in the present Framework Contract, the Contractor shall be obliged to grant such consent within two weeks of presentation of a written request by the Principal. The costs of storage shall be borne by the Contractor.

7. Confidentiality

The Contractor undertakes to treat any information and data received during the course of the business relationship confidentially unless it is released from its obligation by the Principal in writing.

8. Data protection/security

The Contractor shall adopt the necessary technical and organisational measures in order to guarantee adequate protection for personal data. The Principal undertakes to incorporate a privacy policy applicable between the Principal and the users of the OMIS 4.0 cloud application into its order documentation, general terms and conditions of business and other similar documentation. This shall apply in particular in relation to any data that are transferred to third parties or that are visible for third parties in the OMIS 4.0 portal. The Principal undertakes to indemnify and hold harmless the Contractor in the event that any action is taken against it directly by a third party (user) alleging a personal data breach, unless the Contractor has been grossly negligent.

The OMIS 4.0 portal operates using an encrypted SSL connection between the Client and the IT centre.

The access data provided by the Contractor to the Customer (URL, password, login credentials) must be treated in the strictest confidence and protected against unauthorised access by third parties. The Contractor acknowledges that the storage of access data (URL, password, login credentials) and other confidential information on the hard disc of a PC is not secure and that the downloading of data over the internet may result in the transfer of viruses, Trojans or other components onto the relevant end device that could have adverse effects on its data or that could result in the misuse of its access credentials and that may involve hackers. If the Customer has reason to believe that the access data (URL, password, login credentials) have become known to third parties in any way, it is obliged to change its password immediately. The Customer is obliged to report to us any suspicion that its access data or any other secret information may have become known to any unauthorised third parties. The Customer shall bear liability for any losses arising for us as a result of the failure by the Customer to ensure that access data remain confidential or the disclosure thereof to a third party, the failure to report promptly any suspicion that data may have become known to any unauthorised third parties or the failure to back-up its end devices and systems.

9. Privacy Policy concerning the usage of Google Analytics

The OMIS application uses Google Analytics, a web analysis service of Google Inc. (“Google”), in order to enhance usability and the application in general. Google Analytics uses “cookies”; these are text files, which are stored on your computer and make it possible to analyse how you use the website. The information generated by the cookie relating to your usage of the website (including your IP address) is transferred to a Google server in the USA and stored at that location. Google uses this information in order to assess how you use the website, to compile reports relating to website activity for the website operator and to provide other services related to usage of the website and of the internet. Google may also pass this information onto third parties in certain circumstances, where required by law or where such third parties process these data on behalf of Google. Google will not under any circumstances cross-reference your IP address with other data held by Google. You can prevent cookies from being stored through the appropriate settings in your browser software; however, please note that, should you do so, you may not be able to use all functions of this website in full. By using this website, you consent to the processing by Google of the data collected in relation to you in the manner described above and for the purpose specified above. The information stored in the cookie may be recorded, collected and assessed by Google Inc. or also by third parties. In addition, Google uses AdSense in order to collect information, which also invoices so-called “web beacons” (small invisible graphics), the usage of which enables simple actions such as visitor traffic to the website to be recorded, collated and assessed. The information relating to your usage of this website generated by the cookie and/or the web beacon is transferred to a Google server in the USA and stored at that location. Google uses the information thereby obtained in order to assess your usage with reference to AdSense adverts. Google may also pass this information on to third parties in certain circumstances, where required by law or where such third parties process these data on behalf of Google. Your IP address will not be cross referenced by Google with other data stored by Google. You can prevent cookies from being stored on your hard disc and web beacons from being displayed; however, please note that, should you do so, you may not be able to use all functions of this website in full. In order to do so, you must select “block all cookies” in your browser settings (for Internet Explorer under “Extras / Internet Options / Data Protection / Settings”, for Firefox under “Extras / Settings / Data Protection / Cookies”). You can also prevent Google from recording the data generated by the cookies in relation to your usage of the website (including your IP address) as well as the subsequent processing of these data by Google by downloading and installing the browser plugin available under the following link: http://tools.google.com/dlpage/gaoptout?hl=en.

10. Contractor documentation

Offers, detailed design documentation, such as plans or sketches, samples, catalogues, illustrations and any other technical documents, etc. originating from the Contractor shall remain the intellectual property of the Contractor and shall be subject to the relevant provisions of intellectual property law, in particular in regard to reproduction, imitation, competition and data protection.

Upon termination of the contractual relationship, any documentation made available (mater data files, schedules, information relating to software implementation, excel templates, workflow diagrams) shall be deleted by the Principal.

11. Performance, billing and examination

Should it transpire during the course of implementation that the execution of the order in accordance with the service description will not be possible owing to factual or legal constraints, the Contractor shall be obliged to report this fact immediately to the Principal. If the Principal fails to adjust the service description or to carry out any other acts so as to enable implementation, the Contractor may refuse to implement the order. If implementation is impossible owing to any shortcoming on the part of the Principal or any subsequent alteration of the service description by the Principal, the Contractor shall be entitled to cancel the order. Any costs and expenses incurred until that point in time in respect of the activities of the Contractor along with any costs associated with cancellation shall be borne by the Principal.

The software shall be accepted during training. The Contractor shall be sent the acceptance report for approval in advance. The Principal shall not be entitled to refuse to accept the software on account of non-material defects. If the agreed price is not received on time into the account stated in the invoice, we shall be entitled to block access to the service until payment is received, following advance notice to that effect. The blockage of access shall not have any influence on the obligation to pay for any periods that have not been cancelled. In the event of payment default by the Customer or of any serious indications that a cessation of payments by it is imminent or that its solvency or willingness to pay is in doubt, we shall be released from all further performance and supply obligations and shall be entitled to withhold any outstanding services and supplies and to require payment in advance or the provision of collateral. We shall be entitled to charge default interest of 9.2% points above the base interest rate, even in the event that the Customer was not at fault for the payment default. The foregoing shall be without prejudice to our right to claim further damages in relation to the default. The Customer undertakes to bear all costs and expenses associated with the enforcement of the claim, including in particular collection expenses and any other costs necessary for appropriate legal enforcement. The Contractor reserves the right to refrain from providing any further services such as updates/releases or support in the event of payment default.

The travelling time of our employees shall constitute working time. Travelling time shall be remunerated separately according to our relevant applicable rates. In addition, travel expenses and any overnight accommodation costs shall be reimbursed by the Customer as incurred. Travel and incidental costs shall be reimbursed upon presentation of receipts (copies).

We shall send invoices to the Customer as a rule electronically. The Customer expressly consents to the transmission of electronic invoices.

12. Scope of performance

Both parties may request changes to the scope of performance at any time (“change request”). However, any change request must contain a precise description of the change, the reasons for the change, the impact on scheduling and costs in order to provide the recipient of the change request with the opportunity to assess it accordingly. A change request shall only become binding upon the conclusion of an agreement (concerning in particular also consequences on scheduling and costs), which must be signed with legal effect by both parties.

13. Liability

Software defects shall only be deemed to constitute errors if they are reproducible, which means that the Customer must be able to demonstrate at any time the conditions under which they arise.

Except as provided for under the Austrian Product Liability Act [Produkthaftungsgesetz], our liability shall be limited to demonstrable wilful action and demonstrable gross negligence.

The Contractor shall only bear liability towards the Principal for losses demonstrably caused by it in the event of gross negligence. The same shall also apply mutatis mutandis for any losses that are attributable to third parties involved by the Contractor. The Contractor shall bear liability without limitation in the event of any personal injury for which it is at fault.

Liability for indirect losses – such as for example lost profit, costs associated with a suspension of operations, data loss or third party claims – shall only be incurred in the event of gross negligence.

Damages claims shall become time barred according to law, or otherwise at the latest one year after the relevant loss and the party responsible for it came to light.

In the event that any other damages claims are brought, the Customer undertakes to inform us in full and without undue delay whether action has been taken against it in relation to the usage of the contractual services either through the courts or out of court.

14. Loyalty

The contractual partners undertake to remain loyal to each other. They shall refrain from soliciting or employing, including through third parties, both throughout the term of the Contract and for a period of 12 months following termination of the Contract any employees of the other contractual partner who have previously worked on the implementation of orders. Any contractual partner that breaches this requirement shall be obliged to pay liquidated damages equivalent to the annual salary of the employee.

15. Software components

The Contractor undertakes to ensure the maintenance of the software components that are the subject of the Contract for as long as the Principal uses said software components in return for the consideration stipulated, subject however to a maximum of 1 year after the release of a new software version. New software versions as well as updates and upgrades shall be covered by the monthly fee and shall be made available to the Principal without undue delay. No additional licence costs shall arise for the Principal as a result.

Specifically, said maintenance shall in particular include measures aimed at preventing faults and the provision of releases (upgrades and updates) necessary for operation, patches, etc.

Faults are to be diagnosed and rectified in a suitable manner: by means of telephone advice and support or remote maintenance on the Contractor’s system. Any hardware and software of the Principal that has not been supplied by the Contractor shall not be covered.

The Contractor shall regularly inform the Principal, in line with its obligations to provide information, concerning any technical improvements and enhancements of the software components that may be of interest for the Principal's business.

16. Fault reporting, response times (concerning the OMIS 4.0 system)

During the respective maintenance standby times, the Contractor shall set up a help desk in order to co-ordinate any contractually agreed services, which the Principal may contact to report faults in the OMIS 4.0 system and problems with the services provided and obtain information. Fault reports may be submitted in German or English.

Fault reports may be submitted by the Principal during support hours over the telephone. However, the response time available in the individual case will be calculated with reference to the time when a written report was received (by e-mail or fax).

Fault reports / support calls may only be lodged by qualified staff (trained key users) of the Principal. These persons shall either be the employees trained by the Contractor or other trained operators reported to the Contractor.

The response time shall mean the period falling between the time the Contractor was informed by the Principal and the start of repair work or the implementation of a measure aimed at the prompt rectification of the fault in the interest of the Principal.

The Contractor warrants that, in the event that it is asked by the Principal to rectify a fault, the response time will not exceed 240 minutes after the fault report between 08:00 and 16:00 hours on Mondays to Fridays (office hours), and otherwise (outside office hours) 480 minutes.

The Contractor expressly warrants vis-à-vis the Principal that the entire downtime for the components/system affected shall not exceed 48 hours per calendar year. Downtime shall commence at the time the fault is reported and shall end when the system is handed over in operational condition. Downtime shall only be calculated with reference to faults that prevent operation (login not possible, not possible to generate reports, assign report (75%)).

Support shall be included as follows:

  • only registered key users trained by the Contractor
  • answering questions concerning the software and its application
  • telephone assistance in operating the software
  • advice and troubleshooting in relation to OMIS

The above does not apply in relation to support requests that are evidently due to inadequate training.

Support shall be provided daily from 00:00 to 24:00 hours in German, and from Mondays to Thursdays from 08:00 to 16:00 and on Fridays from 08:00 to 12:00 also in English.

Should the time dedicated to such support activities exceed a monthly total of ?? hours, the Contractor reserves the right to charge for the excess period worked at the agreed hourly rates.

The Customer acknowledges that servers may become overloaded in the event of excessive resource usage or third party denial of service attacks and may potentially not operate properly. No claims may be invoked against us in this respect.

17. Data backup

The Principal authorises the Contractor to make backups of all data stored on the OMIS system and to use them also for the purposes of testing the system and further development. These data may also be used for anonymised cross-sectoral benchmarks.

18. Process of continuous improvement

The Contractor shall endeavour to develop the software continuously. The Principal further consents to the telephone surveying of key users twice each year in relation to software performance. In addition, the Contractor is permitted to survey all users at regular intervals concerning the various performance features and potential for improvement through a survey tool incorporated into the OMIS platform.

19. Marketing

The Principal consents to the publication of marketing content in newsletters, various sectoral websites and professional journals. The Contractor shall obtain the Principal’s approval of the content prior to publication. Company logos may not be published on the websites of the Contractor without approval.