General Terms and Conditions

1. Scope and Amendments to the General Terms and Conditions

1.1      JAWA Management Software GmbH, with its registered office in Graz, Austria (hereinafter “JAWA”), generally offers individual software solutions and related services on its website www.jawa.at (hereinafter “Website”).

1.2      The following General Terms and Conditions (hereinafter “GTC”) apply to all usage, license, and consulting agreements, as well as analogous agreements (hereinafter “Agreements”), concluded between JAWA, the client (hereinafter “Customer”), and partners. By concluding an Agreement, the Customer declares their consent to these GTC. The GTC apply exclusively, unless expressly amended or supplemented by individual written agreement.

1.3      All orders and agreements are legally binding only if they are signed by JAWA in writing and in accordance with company policy, and they obligate JAWA only to the extent specified in the order confirmation. Deviating, conflicting, or supplementary general terms and conditions of the Customer shall not become part of an order or the entire business relationship, even if known, unless JAWA expressly agrees to their validity in writing.

1.4      The GTC apply in their respective version valid at the time of the conclusion of the Agreement. The currently valid version is published on the internet at www.jawa.at. They shall in any case also apply if they are not referred to in subsequently concluded Agreements.

1.5      JAWA will inform the Customer in writing by e-mail about changes to the GTC. The amended terms shall become effective if the Customer does not object to their validity in writing within six weeks of notification. The Customer’s notification of changes to the General Terms and Conditions may be made by any means of communication agreed upon between JAWA and the Customer.

2. Services and Conclusion of Contract

2.1     The services offered on JAWA’s website do not yet constitute a legally binding offer, but merely an invitation for the Customer to request an offer. The contract between the Customer and JAWA shall in any case be concluded by a written order from the Customer and an order confirmation from JAWA.

2.2    The specific content and scope of the services to be provided by JAWA, as well as the remuneration to be paid therefor, shall be determined by the agreement reached between JAWA and the Customer.

2.3    Sämtliche zwischen den Parteien bei Vertragsabschluss getroffenen Vereinbarungen sind vollständig schriftlich im Angebot und Vertrag niedergelegt; sämtliche zuvor getroffene mündliche Vereinbarungen und Nebenabreden werden mit Vertragsabschluss ungültig, sofern sie nicht den im Vertrag und Angebot schriftlich festgehaltenen Vereinbarungen entsprechen. Die Mitarbeiter von JAWA sind nicht befugt, von der schriftlichen Vertragsvereinbarung abweichende oder über diese hinausgehenden mündlichen Nebenabreden zu treffen.

2.4    JAWA reserves the right to expand, restrict, or make other changes of any kind to its products or services at any time, particularly for reasons of technical or legal necessity. Significant changes will be announced to the Customer at least one month before their implementation. In the event of significant changes that result in a significant reduction in performance, customers may extraordinarily terminate their existing contract for the use of the software within one month of receiving the change notification, effective upon the change’s entry into force. Such termination must be in writing.

2.5    Performance dates and deadlines can be changed for organizational reasons, unless they are expressly designated as binding. JAWA will inform the Customer of changes to dates and deadlines within a reasonable period.

2.6    We expressly point out that barrier-free design (of websites) within the meaning of the Federal Act on the Equalization of Persons with Disabilities (“Bundes-Behindertengleichstellungsgesetz”) is not included in the offer, unless it has been separately and explicitly requested by the Customer. If barrier-free design has not been expressly agreed upon, it is the Customer’s responsibility to check the service for its permissibility with regard to the Federal Act on the Equalization of Persons with Disabilities. Likewise, the Customer must check content provided by them for its legal permissibility, especially with regard to competition, trademark, copyright, and administrative law. JAWA is not liable for the legal permissibility of content provided by the Customer in cases of slight negligence or after fulfilling any duty to warn the Customer.

3. Remuneration and Payment Terms

3.1. General

All prices are in Euro excluding VAT.

The costs for travel, daily allowances, and overnight stays will be charged separately to the Customer according to the applicable rates. Travel time is considered working time.

3.2. Payment Terms

These payment terms apply to all agreements between JAWA and the Customer, unless a different written agreement has been made.

For the invoicing of license, maintenance, and support fees (due date), unless otherwise agreed, the ordinary fiscal year (January 1st to December 31st) applies. Remuneration due shall be payable in advance.

If a contract is concluded during the year with an annual billing period, the first invoice will be issued for the period from the start of the contract until December 31st of the respective year.

The Customer is not entitled to withhold payments due to incomplete overall delivery, warranty claims, or complaints.

3.3. Delivery Date

JAWA strives to adhere to the agreed-upon dates of fulfillment (completion) as precisely as possible.

The targeted fulfillment dates can only be met if the Customer provides all necessary work and documents completely by the dates specified by JAWA, in particular the performance description accepted by the Customer, and fulfills their duty to cooperate to the required extent.

Delivery delays and cost increases caused by incorrect, incomplete, or subsequently changed information and data or documents provided are not the responsibility of JAWA and cannot lead to JAWA being in default. The resulting additional costs shall be borne by the Customer.

For orders comprising multiple units or programs, JAWA is entitled to make partial deliveries or issue partial invoices.

3.4. Acceptance, Inspection, and Notification of Defects

If JAWA provides software to the Customer, a written delivery notification will be sent to the Customer for acceptance testing (hereinafter “Delivery Notification”).

The Customer is obliged to accept all services from JAWA, especially individual software customizations, immediately upon receipt of the Delivery Notification and to inspect them for defects. All obvious defects must be reported immediately, all hidden defects immediately after their discovery, in writing. JAWA is entitled to a written declaration of acceptance.

The service is deemed accepted without further action as soon as the Customer uses the software operationally or commercially or makes it available to a third party for use. Commissioning is deemed to have occurred if no significant defects were reported in writing within 15 calendar days after the provision of the respective services for acceptance.

Customer change requests after acceptance will be charged in full, regardless of the order value.

3.5. Prices

JAWA reserves the right to adjust prices annually, particularly license fees, maintenance fees, and prices for consulting services. Value stability is expressly agreed upon. The consumer price index 2020, published monthly by Statistics Austria, or an index replacing it, shall serve as the measure for calculating value stability.

The starting point for the value adjustment calculation is the index number published at the time of the conclusion of the contract (for that month). An increase will take place annually on January 1st of each year.

Should this index no longer be published, the value adjustment agreement will be replaced by a corresponding successor index that most closely matches the contractual intent, which aims to preserve the purchasing power of the originally agreed price.

If no adjustment is made due to value preservation, this does not constitute a conclusive waiver of the adjustment. A waiver of the application of value preservation requires an agreement.

3.6. Default in Payment

All invoice amounts must be credited to the account specified in the invoice for JAWA, without deductions and free of charges, according to the agreed payment term after receipt of the invoice. For partial invoices, the payment terms set for the overall order apply analogously. A longer period can be agreed upon with the Customer in the offer.

The Customer is entitled to withhold payments or to set off counterclaims only if their claims have been legally established or acknowledged by JAWA. This restriction does not apply to claims due to partial non-fulfillment or defects that are based on the same contractual relationship as JAWA’s claims.

If a defect exists, the Customer may only withhold payments to a proportionate extent taking into account the defect, and only if the defect is unequivocally present.

In case of default in payment by the contracting party, JAWA is entitled to charge default interest in accordance with § 456 UGB (Austrian Commercial Code) (if the Customer is an entrepreneur within the meaning of the UGB) and to make the provision of further services dependent on payment.

If the Customer is in default with his/her payments for more than one month, JAWA is entitled to block access to the use of the software after prior written notice.

JAWA expressly reserves the right to assert further claims due to default in payment.

4. Cooperation; Responsibilities of the Customer

4.1    The following cooperative services are the Customer’s primary performance obligations and are not to be regarded solely as secondary obligations or duties.

4.2    The Customer shall support JAWA in fulfilling the services contractually owed by JAWA. For this purpose, the Customer shall provide information, data, and other material necessary for JAWA to provide the agreed services in a timely manner.

4.3    Any deadlines to JAWA’s detriment shall only begin to run when the Customer has fulfilled its obligations.

4.4    If, due to the Customer’s non-cooperation or untimely cooperation, tasks have to be performed twice, JAWA is entitled to invoice these services additionally after prior notification with an indication of the expected additional costs.

4.5    To the extent that JAWA’s services are provided in whole or in part via an Internet connection, JAWA shall provide the services within the scope of its technical and operational capabilities. The Customer shall establish all connections via the Internet at its own expense and responsibility.

5. Rights of Use to the Software; Prerequisites

5.1    Upon acquiring the usage license, the Customer receives a simple (non-exclusive), non-transferable right of use, limited to the agreed number of employees and to the contract term. All software offered is the property of JAWA. The disclosure of any components of the software is expressly prohibited. By acquiring the right of use, the Customer is entitled to process and store their own data of employees working in their business (hereinafter “User Data”) for their own purposes within the framework of the account set up for them or their employees and the functionalities of the software.

5.2    JAWA determines which specific system landscapes, browsers, and operating systems are supported by the software. JAWA informs the Customer about the supported browser versions before the conclusion of the contract. There is no claim to the support of specific system landscapes, operating systems, or browser versions.

5.3    It is expressly pointed out that the Customer is solely responsible for compliance with data protection and other legal provisions. The Customer must take appropriate precautions to protect the software from unauthorized access by third parties. The Customer is obliged to bear the costs caused by a breach of this duty and indemnifies and holds JAWA harmless from costs and claims of third parties arising from the breach of this duty. Third parties within the meaning of this paragraph are not affiliated companies within the meaning of Section 189a Z 8 UGB (Austrian Commercial Code).

5.4    The Customer is solely responsible for the technical administration of the software. This applies regardless of whether JAWA supports the Customer in setting up the software, in whatever form.

5.5    The Customer is exclusively responsible for the content and data processed with the software. The Customer hereby undertakes to use the software only in accordance with the contract and within the framework of applicable legal provisions and not to violate any third-party rights when using it.

5.6    The Customer is expressly prohibited from analyzing or recreating the software by reverse engineering, decompiling, or disassembling.

6. Security, Data Protection

6.1. Security Measures

The Customer ensures the confidentiality of the identification and authentication data assigned to their users, which includes, for example, the organizational and, if applicable, technical prohibition of passing on passwords and the prohibition of using so-called “Shared Accounts.”

If, at the Customer’s request, JAWA software is operated on Customer servers, the security of the server, the surrounding network, and the data storage and backup locations are solely and exclusively the Customer’s responsibility.

6.2. Data Protection and Data Collection

JAWA collects and uses the Customer’s personal data only within the framework of the respective applicable legal provisions. The contracting parties shall conclude an agreement (data processing agreement) to the extent required by the respective applicable provisions.

7. Liability and Warranty

7.1    For merely insignificant deviations of the services from the contractual quality or usability, there are no warranty claims against JAWA.

7.2    The liability for claims arising from tort law is limited for claims against JAWA as described below. In cases of simple negligence, JAWA is only liable:

• for damages resulting from injury to life, body, or health,
• for damages resulting from a non-insignificant breach of an essential contractual obligation (i.e., obligations whose fulfillment enables the proper execution of the contract in the first place and on whose compliance the contracting party regularly trusts and may trust); in this case, however, liability is limited to compensation for foreseeable, typically occurring damage and in any case does not exceed the annual fee payable by the Customer for license use, without the addition of additionally charged services.

7.3    Otherwise, JAWA – regardless of the legal reason – is only liable for damages in cases of intent and gross negligence. In cases of gross negligence, however, liability is limited to compensation for foreseeable, typically occurring damage and in any case does not exceed the annual fee payable by the Customer for license use and without the addition of additionally charged services.

7.4    Liability for loss of profit, business interruptions, data loss, indirect or consequential damages is excluded to the extent legally permissible.

7.5    JAWA is not liable for data loss if the damage could have been avoided by proper and regular data backup by the Customer.

7.6    Events of force majeure and other unforeseeable circumstances for JAWA, in particular delivery disruptions, pandemics, epidemics, disasters, wars, strikes, lockouts, hacker attacks, release JAWA for the duration of the disruption and a reasonable start-up period – even during an already existing delay – from performance obligations. If the provision of the service becomes impossible or economically unreasonable due to the aforementioned circumstances, JAWA is released from its contractual obligations; and claims for damages by the Customer are then excluded.

8. Contract Term, Termination

8.1    Sofern keine anderen Regelungen getroffen wurden (z.B. bei befristeten Verträgen), können Vertragsverhältnisse von beiden Vertragsparteien ohne Angabe von Gründen unter Einhaltung der Textform, sowie einer Kündigungsfrist von drei Monaten zum Ende des Kalenderjahres gekündigt werden. Der Kunde hat die Kündigung in Textform auszusprechen und ist für den Nachweis des Zuganges verantwortlich.

8.2    JAWA may terminate the contract extraordinarily with immediate effect if the Customer breaches essential contractual obligations and continues the breach despite a warning from JAWA or does not remedy the breach. The same applies if the Customer is in default with a due payment for more than 30 days despite a reminder.

8.3    In the event of termination by the Customer, JAWA will provide the Customer with all data stored within the software in a common format. The provision will take place within a period of 30 working days from the termination of the contractual relationship. The associated services will be charged separately according to the actual effort based on JAWA’s currently valid hourly rates.

9. Confidentiality, Copyright, Trademark Protection

9.1    The software provided by JAWA to the Customer is protected by copyright. JAWA remains the owner of the software and the underlying source code. The provision of source code is not part of the contractual relationship, and the Customer has no claim to its provision. Changes or manipulations of the software by the Customer, unless explicitly approved in writing by JAWA, constitute a material breach of the Customer’s contractual obligations.

9.2    All extensions, adaptations, or customer-specific configurations (customizing) developed by JAWA within the scope of the contractual relationship are – regardless of the place of use or individualization – copyright property of JAWA. The Customer is not granted any rights whatsoever thereto, in particular no right to adapt, reproduce, or publish.

9.3    Neither contracting party is entitled to transmit confidential information of the respective other contracting party without express consent (at least in text form) to third parties. All information, whether in writing or orally transmitted, which

(i)      by its nature is to be regarded as confidential or requiring secrecy

or

(ii)     the contracting party to whom the information is transmitted must recognize as confidential or requiring secrecy due to the external circumstances of the transmission. Confidential information includes, in particular, product descriptions and specifications, contract conditions, and prices deviating from those on JAWA’s website.

9.4    Both contracting parties undertake to use confidential information only for contractually agreed purposes. Both contracting parties shall take at least those precautions that they also take with regard to their own confidential information. Such precautions must at least be adequate to prevent disclosure to unauthorized third parties. Both contracting parties are furthermore obliged to prevent the unauthorized disclosure or use of confidential information by their customers, employees, subcontractors, or legal representatives. The contracting parties will inform each other in writing if confidential information is misused.

The obligation to maintain confidentiality shall cease if information:

• was demonstrably known to the contracting party before communication,
• was known or generally accessible to the public before communication,
• becomes known or generally accessible to the public after communication without the involvement or fault of the informed contracting party,
• substantially corresponds to information disclosed or made accessible to the informed contracting party at any time by an authorized third party.

9.5    The Customer further undertakes to treat confidentially all business, technical, and scientific know-how acquired from JAWA in connection with the fulfillment of the contract and to make it available to third parties only with the express consent of JAWA. The Customer further undertakes not to file any intellectual property rights applications on the know-how acquired from JAWA in the context of the fulfillment of the contract.

9.6    The obligation to maintain confidentiality ends seven years after termination of the contract, unless legal or contractual regulations provide for a longer confidentiality obligation.

9.7    Both parties shall observe the applicable data protection provisions, in particular those valid in Austria, and shall obligate their employees involved in connection with the contract to data secrecy within the meaning of the DSG (Austrian Data Protection Act) and the GDPR, unless they are already generally obligated accordingly.

10. Final Provisions, Jurisdiction Agreements, and Choice of Law

10.1 Changes and supplements to contracts require text form for their validity. This applies in particular to the amendment of the text form itself.

10.2 Should individual or several provisions of the respective contracts (incl. these GTC) be or become ineffective or invalid, or contain a gap, the validity of the remaining provisions shall remain unaffected thereby. The invalid or ineffective provisions shall be interpreted or replaced in such a way that they most closely correspond to the intended purpose of the agreement. The same shall apply in the case of a contractual gap.

10.3 For all disputes arising directly or indirectly from the contract, the Austrian court with local and subject-matter jurisdiction for JAWA (registered office in 8041 Graz) shall be exclusively agreed upon. Should JAWA actively file a lawsuit, this may take place in addition to the previously described place of jurisdiction at any other permissible place of jurisdiction (jurisdiction agreement).

10.4 Austrian law applies to the legal relationship between JAWA and the Customer. Austrian law also applies exclusively if the Customer has its registered office abroad or the contract is performed abroad. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) do not apply. Likewise, the conflict of laws rules of international private law do not apply (choice of law).