General Terms and Conditions of Use for Software-as-a-Service ("SaaS") – Use of the omis4.0 application supplied by Faschang Service und Management GmbH (registered under FN 267260 f with the Regional Court of Ried im Innkreis), Gewerbepark 11, A-4943 Geinberg (last amended: April 2022)
1. General provisions and validity
1.1 Use of the SaaS application omis4.0 (hereinafter the "SOFTWARE") supplied by Faschang Service und Management GmbH (hereinafter the "Provider") in accordance with the latest module overview, including product description, is subject to these General Terms and Conditions of Use.
1.2. Our General Terms and Conditions of Use in force at the time of the conclusion of the agreement apply. They are available on our website: https://www.omis.at/en/agb_en.html.
1.3 These General Terms and Conditions of Use apply exclusively. The contractual terms and conditions of the Customer do not apply. Any conflicting confirmations and other communications from or by the Customer referring to its own contractual terms and conditions are expressly excluded.
1.4 In the event that the Customer enables third parties to make use of the SOFTWARE, the Customer guarantees that these General Terms and Conditions of Use will be imposed on the respective third party, with the Customer bearing the same liability for the latter as it does for its own conduct. A third party is any person who is not one of the contracting parties even if the third party has some kind of relationship with one of the contracting parties ("Third Party"). Thus, for the purpose of these General Terms and Conditions of Use, the term "Customer" also includes Third Parties upon whom these General Terms and Conditions of Use have been imposed.
2. Subject of the agreement, conclusion of contract and scope of services
2.1 The Provider shall provide SaaS services to the Customer via the internet in connection with maintenance software, which performs important maintenance and servicing tasks and functions for businesses.
2.2 The subject of the agreement is
2.2.1 the provision of the SOFTWARE by the Provider for use via the internet, and
2.2.2 the provision of storage space on the servers of the Provider (the services specified in sections 2.2.1 and 2.2.2 are hereinafter jointly referred to as "SaaS Services").
2.3 The Provider is permitted to engage the services of subcontractors to provide the SaaS Services and, in particular, to provide storage space. Engaging the services of subcontractors does not release the Provider from the obligation it alone has undertaken to perform the agreement in full vis-à-vis the Customer.
2.4 In principle, the agreement comes into effect when the Customer – if necessary through the mediation of a sales agent acting on behalf of the Provider – expressly accepts (be it orally, in writing, by completing an online form, or via email) an offer by the Provider made in writing or sent by email. Notwithstanding the preceding sentence, however, the agreement containing the content of the aforementioned offer and these General Terms and Conditions of Use comes into effect no later than when the Customer logs in for the first time to the server of the Provider or that of its subcontractor in this regard (hereinafter jointly referred to as the "Provider Server"), at which point the Customer agrees to be bound by these General Terms and Conditions of Use of the Provider.
2.5 The scope of the services to be provided under contract, including provisions on availability, can be found in the offer made by the Provider and accepted by the Customer, and in the included General Terms and Conditions of Use.
2.6 The Provider makes the agreed version of the SOFTWARE available to the Customer for its use at the router exit of the data centre in which the Provider Server is located ("Transfer Point"). The Provider is not responsible for establishing and maintaining the data connection between the Customer's IT systems and the Transfer Point described above. The Customer's internet connection and maintenance of the network connection, as well as the procurement and provision of the hardware required for this on the part of the Customer, are therefore not the subject of this agreement. The Customer shall ensure at its own expense and risk that its business has and maintains an internet connection that meets its own requirements.
2.7 As part of the online help made available for the SOFTWARE, the Provider shall provide user documentation (in the form of a manual) for the standard configuration and any specifications in electronic form. The non-exclusive and non-transferable right of the Customer to use this manual online is covered by the remuneration payable for use of the SOFTWARE. The Customer is entitled to process, edit and adapt or distribute the user documentation only with the prior written consent of the Provider.
2.8 The Provider assumes responsibility for securing the data transmitted, to the extent this is reasonably possible in terms of both economic cost and technical difficulty; in particular, the Provider shall use state-of-the-art firewalls on the Provider Server and regularly updated virus scanners in the Document Management System to prevent unauthorised access to the Customer's data and the transmission of malware (viruses, Trojans, diallers, etc.). The Provider is entitled to erase data provided by its customers containing malware if the threat posed by such malicious code cannot be eliminated reliably by other means and/or in a technically and economically reasonable manner.
2.9 The Provider shall carry out regular maintenance of the SOFTWARE and the Provider Server under the warranty provided under these General Terms and Conditions of Use. For this purpose, the Provider shall diagnose and eliminate faults and malfunctions within a reasonable period of time and provide support for its services during its usual working hours.
2.10 The Customer needs third party software to print out the data generated and stored by the SOFTWARE on the Provider Server using the Customer's own printer or to display it on the Customer's own computer, e.g. as a PDF. Such software must be installed and configured on the Customer's computer (client) before it can execute these functions. The Provider does not make any third party software and/or instructions for its installation and configuration available for this purpose. Rather, it is the sole responsibility of the Customer to provide or maintain such third party software, etc., that is fully functional and compatible with the SOFTWARE. The Customer is advised that it will also be under an obligation to accept and comply with the licensing terms (EULA) of the third party provider in order to be able to use the corresponding functions of the SOFTWARE.
2.11 In addition, the Provider provides training if separately commissioned to do so and in exchange for payment of a separate fee. The Customer will be invoiced separately for any programming that is necessary to produce special functionalities tailored to the wishes of the Customer on a time and materials basis at hourly rates to be agreed separately.
2.12 Each contracting party may request that changes be made to the scope of services at any time ("Change Request"). However, a Change Request must include a precise description of the change, the reasons therefor, the impact on the schedule and costs, so as to give the person to whom the Change Request is addressed the opportunity to make an appropriate assessment. A Change Request only becomes binding after a corresponding agreement is reached (in particular with regard to the schedule and financial consequences) bearing the legal signature of both contracting parties.
2.13 Within the bounds of what is reasonable for the Customer, the Provider reserves the right to adapt all system/software versions (e.g. omis4.0 system, operating system, security-relevant software, SSL certificates, etc.) to bring them into line with a modified state-of-the-art at any time. If the Customer refuses to accept this adaptation, it alone bears the risk associated therewith, in particular with regard to IT security, data protection and cyber security, and it shall indemnify and hold the Provider completely harmless with regard to any third party claims upon first request. If any third party systems (e.g. systems of other customers running on the same server) are affected by this, the Customer alone shall also bear the costs arising from any system transfer to another server and shall indemnify and hold harmless both the Provider and the Third Parties concerned in this respect upon first request.
2.14 Use of the following browsers is recommended:
Chrome, Edge (Chrome Version), Firefox and Safari
We advise against the use of other browsers as we have not tested them. We cannot provide support for them. However, functionality issues and problems cannot be ruled out following browser updates.
3. Provision of the SOFTWARE
3.1 For the duration of this agreement, the Provider makes the current version of the SOFTWARE available to the Customer via the internet against payment of a fee. To this end, the Provider installs the SOFTWARE on the Provider Server, to which the Customer has access via the internet.
3.2 The current functional scope of the SOFTWARE can be found in the latest service description (i.e. the module description of the standard configuration, included with the offer, as well as the service description of any specifications).
3.3 The Provider is continuously developing and improving the SOFTWARE by making regular updates and upgrades available.
4. Rights of use to the SOFTWARE
4.1 During the lifetime of the agreement, the Provider grants the Customer the non-exclusive and non-transferable right to use the latest version of the SOFTWARE stipulated in this agreement to the extent specified herein, including current releases and updates, and associated functionalities, by providing the Customer with remote access to the Provider Server.
4.2 The Customer may only duplicate or edit the SOFTWARE if this is covered by the intended use of the SOFTWARE pursuant to the current service description.
4.3 Loading the SOFTWARE into the RAM on the Provider Server is considered necessary duplication; however, any installation or storage of the SOFTWARE on data carriers (such as hard disks or the like) that form part of the hardware used by the Customer, even if only temporarily, is not considered necessary duplication.
4.4 More extensive rights to the SOFTWARE are not granted. In particular, the Customer is not entitled to duplicate, sell or temporarily transfer use of the SOFTWARE or parts thereof beyond the provisions set out in this section 4; in particular, the Customer may not lease or loan the SOFTWARE or use the services of the Provider beyond the contractual use and beyond the limits established under the present General Terms and Conditions of Use, nor may the Customer make the SOFTWARE accessible to Third Parties.
4.5 Any transfer of use regarding the SOFTWARE to Third Parties requires the Customer to demonstrate that the Provider has given its prior consent and that the third party users have completed in advance the compulsory training stipulated by the Provider, which – depending on the user group and the Provider's specifications – may be carried out by the Provider itself or by the Customer.
5. Provision of storage space
5.1 The Provider shall provide the Customer with a defined amount of storage space on a Provider Server for the storage of its data. The Customer may store up to 200 GB of content on said Provider Server 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/. The Provider shall notify the Customer if the storage space made available to the Customer for storing its data is no longer sufficient. The Customer may reorder corresponding quotas subject to availability at the Provider.
5.2 The Provider shall ensure that the stored data can be accessed via the internet in accordance with the provisions of this agreement.
5.3 The Customer is not entitled – except in connection with consent given by the Provider pursuant to section 4.5 above – to transfer this storage space to a Third Party for its use, whether in part or in full, be it against payment or free of charge.
5.4 The Customer undertakes not to store on the storage space any content whose provision, publication or use violates applicable law or agreements with Third Parties.
5.5 The Provider shall take appropriate precautions to prevent data loss and unauthorised access to the Customer's data by Third Parties in accordance with the provisions of this agreement. For this purpose, the Provider shall make daily backups, check the Customer's data in the Document Management System for viruses and install state-of-the-art firewalls.
5.6 The Customer remains in any case the sole person entitled to the data and thus may at any time demand the surrender of all data or parts thereof in accordance with the provisions of this agreement.
5.7 Upon termination of the contractual relationship, the Provider shall surrender to the Customer without undue delay all data stored on the storage space allocated to the Customer, in accordance with the provisions of this agreement.
5.8 The data shall be surrendered, at the Customer's option, either by handing over data carriers or by means of transmission via a data network. Further, the Customer is not entitled to receive appropriate software to use the data.
6. Support and availability (Service Level Agreement – "SLA")
6.1 Support requests may only be made by qualified personnel (trained key users) of the Customer. These individuals are either employees trained by the Provider or trained operators who have otherwise been notified to the Provider. The scope of the support to be provided is as follows:
• Answering queries about the SOFTWARE and its application;
• Providing remote assistance (by telephone or web meeting) on the operation of the SOFTWARE;
• Providing advice and solutions on how to use the SOFTWARE.
Support requests that clearly show a lack of training are excluded from this.
Support is offered Monday to Friday from 08:00 to 16:00 (CET/CEST). There is a 24-hour hotline for absolute emergencies (i.e. complete system failure).
An omis4.0 support system (support.omis.at) is available for support requests. The system enables key users to send support requests to the Provider's support team. The Provider will respond to support requests made by the Customer in an appropriate manner. If requests are not made via the omis4.0 support system, compliance with the response times notified by the Provider is non-binding and cannot be promised.
6.2 The Provider is entitled to suspend use of the SaaS Services no more than twice per quarter for two hours each time to carry out maintenance or servicing work on the SOFTWARE or the Provider Server. In such a case, the Customer will be informed of this by notices posted on the Provider Server. The Customer will not use the SaaS Services when maintenance or repairs are being carried out, even if use is nevertheless technically possible. If the Customer nevertheless decides to use the SaaS Services at these times, it does so at its own risk of data loss.
The Provider shall set up a help desk during the respective maintenance periods for the coordination of all contractually agreed services, enabling the Customer to report malfunctions affecting the SOFTWARE and problems with the other services provided by the Provider and obtain information. Messages can be submitted in German or English.
6.3 The Provider shall ensure that the SaaS Services do not experience total downtime exceeding 48 hours per calendar year; however, this does not include the times when the services are unavailable due to regular maintenance or servicing work. The downtime commences upon receipt of a proper fault report and ends when the Provider states that the services are operational again. Only malfunctions impeding operations (i.e. system not available, login not possible, create message not possible, messages containing "danger in delay" not processable, and checks/check lists of legal origin not processable) are used for the purpose of calculating downtime.
If the contractually agreed availability of the SaaS Services under the preceding paragraph is not achieved for reasons demonstrably attributable to the Provider or its vicarious agents, without section 6.2 para. 1 being applicable, the Customer is entitled to lump-sum compensation for downtime from the Provider in the amount of EUR 100.00 per full hour of downtime.
If the SaaS Services are unavailable for more than 72 hours per calendar year for reasons demonstrably attributable to the Provider, the Customer is entitled to effect extraordinary termination of the agreement. This right to extraordinary termination expires if the Customer does not declare termination in writing to the Provider within one week of the conditions for termination being met.
6.4 The Customer shall immediately inform the Provider if the SaaS Services are unavailable without prior notice of repair or maintenance work. If the Customer repeatedly submits incorrect fault reports either deliberately or as a result of gross negligence, the Provider is entitled to charge the costs incurred for processing the fault reports to the Customer, but at least EUR 50.00 per fault report. The contracting parties reserve the right to claim a greater or lesser amount of damages.
Fault reports by the Customer can be submitted during the above support times (see section 6.1), and 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 the Customer's qualified personnel (trained key users). Trained key users are employees who have received special training from the Provider.
6.5 The response time is the period commencing when the Provider is notified by the Customer in accordance with section 6.4 and ending when work starts to rectify the fault or a measure aimed at remedying the fault is taken.
The Provider shall ensure that, upon receipt of a proper fault report (faults that are relevant to downtime), the reaction time does not exceed 240 minutes on the Provider's working days, Monday to Friday from 08:00 to 16:00 (office hours), and does not exceed 480 minutes at all other times (outside of office hours).
The Provider will notify the Customer immediately of the work to rectify the fault and carry it out in the shortest time possible in accordance with the technical conditions.
If it is not possible to rectify the fault in a timely manner, the Provider will quickly inform the Customer of this by email or via the omis4.0 support system (support.omis.at), stating the reasons for the fault and the estimated time it will take to rectify it.
6.6 To keep support and maintenance expenses as low as possible, the Provider reserves the right to include all individual adaptations commissioned by the Customer in the standard version (uniform software version for all Customers). The Customer agrees to and takes note of this.
6.7 The Customer notes that the Provider Server may be overloaded and therefore may not function in the event of an excessive use of resources or in the event of denial-of-service attacks carried out by Third Parties. Any claims made against the Provider in this regard are excluded.
7. Obligations of the Customer
7.1 The Customer shall support the Provider to provide the contractual services to a reasonable extent.
7.2 The Customer undertakes not to store on the provided storage space any unlawful content and/or content that is in violation of laws or official requirements or that infringes third party rights.
7.3 The Customer shall take appropriate precautions to prevent unauthorised access by Third Parties to the protected areas of the SOFTWARE. For this purpose, the Customer shall advise its employees, where necessary, of the need to comply with copyright laws.
7.4 Without prejudice to the obligation of the Provider to back up data in accordance with the provisions of this agreement, the Customer itself is responsible for entering and maintaining its data and information required for use of the SaaS Services.
7.5 The Customer shall check its data and information for viruses or other malicious components before entering it and use state-of-the-art virus protection programs to aid this process.
7.6 During configuration of the system, a "User ID" and a password are generated for each user enabling access to the SaaS Services; these details are required for further use of the SaaS Services. The Customer shall keep the "User ID" and password secret and not make them accessible to Third Parties.
7.7 The content stored by the Customer on the storage space allocated to it may be protected by copyright and data protection law; in particular, the interests of Third Parties may be affected by copyright and data protection law when data is backed up. The Customer hereby grants the Provider the right to make the content stored on the Provider Server accessible to the Customer upon the Customer requesting its retrieval via the internet and, in particular, to duplicate and transmit the content for this purpose and duplicate it for the purposes of data backup.
7.8 The Customer bears sole responsibility for all content used and data processed by it as well as for any legal positions required for this. The Provider has no knowledge of the content belonging to the Customer and, in principle, does not check the content used by the Customer in connection with the SOFTWARE.
7.9 In this regard, the Customer undertakes to indemnify and hold the Provider completely harmless with respect to any liability and any costs, including possible and actual costs incurred for legal proceedings, upon first request, in the event that a claim is made against the Provider by Third Parties, including claims made by employees of the Customer 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, provide the Customer with an opportunity to defend itself against the claim. At the same time, the Customer shall immediately communicate in full to the Provider all information in its possession concerning the facts that are the subject of the claim. Any further claims for damages by the Provider remain unaffected.
8. Remuneration, payment default, blocking access, set-off, retention, indexation, and electronic billing
8.1 Each month in advance, the Customer shall pay the Provider the agreed remuneration for the provision of the SOFTWARE and the storage space, plus statutory VAT. The actual amount of remuneration payable depends on the extent to which the services were used in the respective previous period. Unless otherwise agreed, the remuneration payable also depends on the Provider's offer, valid as at the time of conclusion of contract.
8.2 Objections to the billing and settlement of the services provided by the Provider are to be raised by the Customer in writing with the office indicated on the invoice within a period of eight weeks from receipt of the invoice. After expiry of the aforementioned period, the invoice is deemed to have been approved by the Customer.
8.3 If the Customer is in default of payment, default interest is payable from the due date at the rate applicable to business transactions.
If the Customer defaults on the payment of the monthly remuneration for two consecutive months or if, during a period spanning more than two months, the Customer defaults on the payment of the remuneration where the default amount is equal to or exceeds the remuneration for two months under the agreement, the Provider is entitled to block the Customer's access to the SaaS Services. This does not affect the Customer's obligation to continue paying the remuneration even during the period in which access to the services is blocked.
Generally, such blocking comes into effect on the first day of the month and is announced five calendar days in advance. It is the sole responsibility of the Customer to ensure that it saves or prints out in a timely manner the data stored by it on the Provider Server as PDF files.
After expiry of this period and until such time as all outstanding debts have been settled in full, the Provider is not under any obligation to grant the Customer access to the agreed SaaS Services and/or the data stored on the Provider Server.
The Provider may terminate the contractual relationship without notice if the payment default lasts for a period of three consecutive months or if the default amount is equal to three months' remuneration.
The Provider reserves the right to assert other claims in respect of payment defaults.
8.4 The Customer is authorised to set off claims only if and to the extent that counterclaims have been established as binding by a court of law (res judicata) or have been recognised by the Provider. The Customer is not entitled to withhold payments.
8.5 The remuneration payable under section 8.1 is index-linked, it being understood that the agreed amounts change in order to reflect the change in the Harmonized Index of Consumer Prices (HICP) 2015, as published by Statistics Austria. In the event that this index is no longer published, the index replacing it shall be used as the basis for future indexation. The index figure published for the month of the conclusion of the agreement is used as the basis for indexation. The remuneration payable is adjusted annually at the beginning of each new calendar year. The first adjustment reflects the change in the index value from the month of the conclusion of the agreement to the value for the following November. The index figure published for this month of November then in turn forms the new basis for further adjustments. These are, in turn, based on the change up to the following November for the following calendar year.
8.6 As a rule, the Provider shall send invoices to the Customer in electronic form. The Customer expressly agrees to be invoiced electronically.
9. Acceptance, warranty and liability
9.1 Acceptance (new implementation or later individual adaptation) takes place before the SaaS Services "go live". If acceptance is delayed by events beyond the Provider's control, acceptance is automatically deemed to have taken place two weeks after the services "go live". Any faults must be reported by the Customer using the omis4.0 support system (support.omis.at).
In accordance with the following provisions, the Provider provides a warranty for the services rendered by it, unless the impairment is based on agreed restrictions to the availability of the service under the Service Level Agreement (see section 6). Subject to mandatory legal provisions, the consequences of the availability of the SaaS Services not being in conformity with the agreement are comprehensively regulated in this section 9 and the Service Level Agreement (see section 6). Due to the nature of network connections, the Provider does not assume any warranty for the proper functioning of the data networks between the Customer and the Provider Server, save where the relevant connections are to be provided and maintained by the Provider. The assurance of properties as well as the issuance of a guarantee require the express written confirmation of the Provider. Representations and descriptions in documents and on websites of the Provider as well as advertising statements are not warranted characteristics or guarantees.
9.2 The Provider warrants that the SaaS Services will be provided in a diligent and professional manner in accordance with the provisions of this agreement. The Provider is responsible for maintaining the SaaS Services, including the associated SOFTWARE. To this end, the Provider shall diagnose and remedy faults and malfunctions within a reasonable period of time and provide support for the SaaS Services during its usual working hours.
9.3 If, due to circumstances for which the Provider is responsible, the SaaS Services made available for use are defective, the Provider shall restore the error-free usability of the SaaS Services within a reasonable period of time if and to the extent that the Customer immediately notifies the Provider of the error in writing. Errors in the SOFTWARE are merely reproducible deviations from the specifications laid down in the agreement or in the module description. In the case of third party software licensed by the Provider for use by the Customer within the framework of the SaaS Services, remedying the defect shall consist in procuring and installing new releases, updates or error corrections available to the Provider, insofar as the Provider is able to procure such at a reasonable cost.
9.4 If the SaaS Services cannot be provided in conformity with the agreement even after the Customer has set a reasonable grace period of at least 10 days in writing, the Customer is entitled to terminate this agreement with respect to the defective service concerned in writing without notice. The Customer is only entitled to terminate the entire agreement if it cannot reasonably be expected to adhere to the agreement as a whole.
9.5 Insofar as a Third Party asserts justified claims against the Customer for an infringement of intellectual property rights or copyrights as a result of the SaaS Services provided by the Provider and used by the Customer under contract, and if use of the SaaS Services is adversely affected or prohibited as a result, the Provider shall at its option either obtain a right of use from the Third Party or effect changes to its services while maintaining the same functionality so that the intellectual property rights or copyrights are not infringed. The Customer is released from its obligation to pay the monthly remuneration until such time as it is possible for it to use the SaaS Services again. This is conditional upon the Customer notifying the Provider in writing of any third party claims for an infringement of intellectual property rights or copyrights without undue delay, not acknowledging the alleged infringement, and conducting any dispute, including any out-of-court settlements, only in agreement with the Provider. Claims against the Provider are excluded if the Customer itself is responsible for the infringement of intellectual property rights or copyrights. The same applies if the infringement of intellectual property rights or copyrights is based on special specifications of the Customer or on an application of the SaaS Services that could not have been foreseen by the Provider.
9.6 Claims more extensive in nature and other claims on the part of the Customer brought in respect of a fault affecting the SaaS Services are excluded, save where otherwise provided for in the following provisions in this section 9.
9.7 In the event that the services made available by the Provider are accessed by unauthorised Third Parties using the Customer's access details, the Customer is liable for any fees incurred as a result thereof within the scope of civil liability until the Customer orders that the access details be changed or until the loss or theft is reported, unless the Customer is able to prove that it is not at fault for the unauthorised access by the Third Party.
9.8 The Provider is entitled to put an immediate block on access to the system and storage space if there are reasonable grounds for suspecting that the stored data is illegal and/or violates third party rights. In particular, there are reasonable grounds for suspicion of illegality and/or the infringement of rights if courts, authorities and/or other Third Parties inform the Provider thereof. The Provider shall immediately notify the Customer of the block and the reason for its imposition. The block shall be lifted as soon as the grounds for suspicion no longer exist.
9.9 In cases of slight negligence, any liability on the part of the Provider and in respect of its employees, contractors or other vicarious agents ("people") is excluded for damage to property and financial loss, irrespective of whether it concerns direct or indirect damage, lost profit or consequential damage, damage due to delay, impossibility, positive breach of an obligation or breach of contract, culpa in contrahendo, or due to defective or incomplete performance or any damage resulting from third party claims against the Customer. The injured party at all times bears the burden of proving gross negligence or wilful intent. To the extent the liability of the Provider is excluded or limited, this also applies to the personal liability of its people.
The aforementioned limitations on liability do not apply if the damage results from dangers that neither are typical for the legal relationship nor were foreseeable given the special circumstances of the individual case.
The Provider is not liable for a delay in the provision of the SaaS Services in particular due to an outage or impairment of the Customer's internet connection or because of force majeure, e.g. mobilisation, war, riots, diseases, epidemics, pandemics or similar events for which the Provider is not responsible, such as strikes or lockouts.
9.10 All liability claims deemed to exist against the Provider on their merits are limited in terms of amount to the net value of any individual object of performance substantiating the liability claim in question or to the actual cover provided under any insurance policy taken out by the Provider, whichever is the greater.
9.11 Liability claims against the Provider lapse twelve months after provision of its service; in the case of tortious liability, from the time of knowledge or grossly negligent ignorance of the circumstances giving rise to the claim and the person liable to pay damages.
9.12 Further claims for damages by the Customer other than those expressly mentioned in this agreement, irrespective of the legal basis therefor, are excluded. This does not apply if liability is mandatory.
10. Term, termination and data security upon expiry of the agreement
10.1 Unless otherwise agreed, the term of the agreement and its termination depend on the Provider's offer, valid as at the time of conclusion of contract.
10.2 The right of each contracting party to terminate the agreement without notice for good cause remains unaffected. In particular, the Provider is entitled to effect termination without notice if the Customer fails to make payments that have fallen due despite reminders and the setting of a grace period or if the Customer is in violation of the contractual provisions regarding the use of the SaaS Services. Save as otherwise provided for in this agreement, termination without notice requires that the other party be sent a written reminder requesting it to remedy the alleged reason for termination without notice within a reasonable period of time.
10.3 It is the responsibility of the Customer to do a complete backup of its data produced using the SOFTWARE and stored on the Provider Server in a readable form suitable for the Customer's purposes on a system operated by the Customer in a timely manner prior to expiry of the agreement and/or otherwise to back up such data on its own data carrier in a timely manner.
The Customer is not entitled to receive the appropriate software application enabling it to read and reactivate the data.
11. Confidentiality, data protection and cloud computing
11.1 The contracting parties shall permanently keep secret any information about the respective other contracting party of which they become or have become aware in connection with this agreement that is marked as confidential or is recognisable as a commercial or business secret on the basis of other circumstances (hereinafter "Confidential Information") and not disclose Confidential Information to Third Parties or record or use it in any other way except where the respective other contracting party has given its express written consent to the disclosure or use thereof or save in those cases where the Confidential Information must be disclosed on the basis of a law, a court decision or a decision of an administrative authority.
Information is not deemed to be Confidential Information within the meaning of this section 11.1 if it
• was already known to the other contracting party without the information having been subject to a confidentiality obligation,
• is generally known or becomes known without there having been any breach of the confidentiality obligations assumed,
• is disclosed to the other contracting party by a Third Party without there having been any breach of a confidentiality obligation.
The obligations entered into under this section 11.1 survive any termination of this agreement.
11.2 Personal data are collected, processed and used only by the Customer who bears sole responsibility therefor in its capacity as controller within the meaning of the EU General Data Protection Regulation (GDPR) and other regulations on data protection, in particular the Austrian Data Protection Act (Datenschutzgesetz) and the Austrian Telecommunications Act (Telekommunikationsgesetz). The Provider does not collect, process and use personal data pertaining to the Customer and its employees for its own purposes, but performs such tasks only as a service provider on behalf of the Customer in strict compliance with the Customer's instructions ("processor" within the meaning of Article 28 GDPR). An agreement on processing to be concluded separately between the Provider and the Customer, if applicable, shall set out the details in this regard. In addition, the following principles apply.
11.3 The Customer is responsible for ensuring compliance with the provisions of the GDPR, the Data Protection Act and other data protection rules and regulations and the Customer warrants that it is authorised to collect, process and use the personal data of its employees and/or its business partners and their employees within the scope of the use of the SaaS Services in accordance with the applicable provisions of data protection law. The Customer gives an assurance that in the case of personal data, permission is granted before the data is passed on to the Provider. With regard to the nature and scope of the data made available by the Customer, the Provider is subject to the full right of the Customer to issue instructions with respect to the collection, processing and use of 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 required and instructed to maintain data secrecy in accordance with the provisions of the GDPR and the Data Protection Act.
11.4 As soon as and insofar as the Provider engages the services of other providers (or sub-providers) for the provision of the SaaS Services, in particular the SOFTWARE, and if the data
of customers for remote access are not kept ready on its own servers but on the servers of cloud service providers, the customers and the Provider are required to ensure that the data protection requirements are complied with by concluding a separate contractual agreement on data processing. The following principles apply:
As soon as and insofar as the Customer uses the SaaS Services as cloud services, the Provider will continue to act for the Customer merely as a processor within the meaning of Article 28 GDPR. The Customer remains responsible for ensuring compliance with the provisions of data protection law. In its capacity as controller, the Customer shall continue to ensure the lawfulness of all data processing; in particular, it must fulfil its obligations to erase data, correct incorrect data, ensure that data is blocked and, among other things, provide the data subject with information – in accordance with the requirements of the GDPR – about the data relating to the data subject. The Provider shall support the Customer in fulfilling these obligations insofar as it is technically possible for it to do so.
Where the agreement with the Customer makes provision for the use of a cloud service provider, the Provider undertakes only to work together with cloud service providers that carry out data processing within the European Economic Area (EEA) or Switzerland and will for its part lay down the bases for permissible data processing required under data protection law with the commissioned cloud service providers in a written agreement that ensures compliance with the Customer's instructions and the technical and organisational security measures.
12. Applicable law, jurisdiction and amendments to the General Terms and Conditions of Use and service descriptions
12.1 The present agreement is governed by and construed in accordance with Austrian law without giving effect to the conflict-of-law provisions of international private law.
12.2 The exclusive place of jurisdiction for disputes under this agreement is Ried im Innkreis, A-4910. Notwithstanding that, the Provider is at its option entitled to institute legal proceedings against the Customer in any other court that may be competent under national or international law.
12.3 These General Terms and Conditions of Use may be amended insofar as this does not affect material provisions of the contractual relationship and provided that this is necessary to adapt to developments unforeseen at the time of the conclusion of the agreement and if failure to take them into consideration would result in a noticeable imbalance in the contractual relationship. Material provisions include, in particular, those relating to the nature and scope of the contractual services and the term, including the provisions on termination. Further, adaptations or additions to the General Terms and Conditions of Use may be made where this is necessary to overcome difficulties in fulfilling the agreement due to regulatory gaps that have arisen after conclusion of the agreement. This may be the case in particular if case-law changes and one or more of the clauses of these General Terms and Conditions of Use are affected as a result.
12.4 The service descriptions may be amended if this is necessary for good reason, if the Customer is not placed in a position that is objectively worse compared to the service description included at the time of the conclusion of the agreement (e.g. retention or improvement of functionalities) and provided there is no clear deviation from the latter. Good cause is deemed to exist if there are technical innovations on the market for the services to be provided under contract or if Third Parties from whom the Provider procures the necessary preliminary services for the provision of its services change their range of services.
12.5 The Customer shall be notified in writing of any intended changes to the General Terms and Conditions of Use and/or the service descriptions in accordance with sections 12.3 and 12.4 at least six weeks before they come into effect. The Customer has a special right of termination at the time the changes take effect. If the Customer does not terminate the agreement in writing within six weeks following receipt of the notification of change, the changes become part of the agreement at the time at which they take effect. The Customer will be specifically informed of this consequence in the notification of change.
13.1 No ancillary verbal agreements have been made. Amendments, supplements and additions to this agreement are only valid if they are agreed in writing between the contracting parties. This also applies to any amendment of this provision of the agreement.
13.2 Should a provision of the agreement be or become ineffective, in whole or in part, a permissible provision that comes closest to the economic purpose of this provision is deemed to have been agreed. This also applies if a provision is deemed ineffective due to a measure of performance or time denominated in the agreement; in such cases, a measure of performance and time which comes closest to that intended and which is legally permissible replaces the one originally agreed. This is without prejudice to the remainder of the agreement. The same applies to any omissions in this agreement that need to be rectified.
13.3 The Customer may only transfer the rights and obligations arising from this agreement to a Third Party with the prior written consent of the Provider.
13.4 Notices from the Provider to the Customer shall be sent with legal effect to the address or email address of the Customer last notified to the Provider. The Customer shall notify the Provider in writing of any change of contact details and any change in power of representation without undue delay.
Faschang Service und Management GmbH Gewerbepark 11, 4943 Geinberg/Austria T +43 (0)7723/44 600 F +43 (0)7723 44600 11
firstname.lastname@example.org www.omis.at Commercial Court of Registration: Ried im Innkreis Commercial Reg. No.: FN 267260 f VAT Reg. No.: ATU 61931128