General Terms and Conditions
JAWA Management Software GmbH
Version from 27.08.2021
1 Scope of application and amendments to the GTC
2. services and conclusion of contract
3. fees and terms of payment
All prices are in euros excluding VAT. The costs for travel, daily and overnight allowances shall be charged to the customer separately in accordance with the respective applicable rates will be charged. Travel time is considered working time.
3.2 Terms of payment
These terms of payment shall apply to all agreements between JAWA and the Customer, unless otherwise agreed in writing. Unless otherwise agreed, the invoicing of license, maintenance and support fees (due date) shall be based on the normal financial year (01.01. to 31.12.). Fees to be paid are due in advance. If a contract is concluded during the year with an annual billing period, the first billing period is Invoicing for the period from the start of the contract to December 31 of the respective year. The customer is not entitled to withhold payments due to incomplete overall delivery, guarantee or warranty claims. warranty claims or complaints.
3.3 Delivery date
JAWA shall endeavor to meet the agreed dates of performance (completion) as closely as possible. The target completion dates can only be met if the customer provides all necessary work and documents, in particular the accepted service description, by the dates specified by JAWA and fulfills his obligation to cooperate to the required extent. JAWA shall not be responsible for delays in delivery and cost increases caused by incorrect, incomplete or subsequently changed data and information or documents provided and JAWA shall not be in default. Any resulting additional costs shall be borne by the customer. In the case of orders comprising several units or programs, JAWA shall be entitled to make partial deliveries or issue partial invoices.
3.4 Acceptance, inspection and notification of defects
If JAWA provides the Customer with software, a written notification of provision shall be sent to the Customer for acceptance testing (hereinafter referred to as “Notification of Provision”). The Customer shall be obliged to accept all services of JAWA, in particular individual software adaptations, immediately after receipt of the notification of provision and to check them for defects. All obvious defects shall be reported in writing immediately, all hidden defects immediately after their discovery. JAWA shall be entitled to a written declaration of acceptance. The service shall be deemed to have been accepted without further ado as soon as the customer uses the software operationally or commercially or makes it available to a third party for use. Commissioning shall be deemed to have taken place if no significant defects have been notified in writing within 15 calendar days of the provision of the respective services for acceptance. Any changes requested by the customer after acceptance shall be invoiced in full, irrespective of the order value. invoiced.
3.5 Prices
The prices, in particular, license fees, maintenance fees and prices for consulting services are automaticallyservices are automatically adjusted annually. Stability of value is expressly agreed. The consumer price index 2020 published monthly by Statistics Austria or an index replacing it shall serve as a measure for calculating the stability of value. The starting point for the calculation of the value guarantee is the index figure published at the time the contract is concluded (for that month). An increase takes place annually on 01.01. Should this index no longer be published the the value maintenance agreement will be replaced by a corresponding successor index that most closely corresponds to the contractual intention, which is to preserve the purchasing power of the originally agreed price. If no adjustment is made on the basis of the value adjustment, this does not constitute a conclusive waiver of the adjustment. A waiver of the application of the value adjustment requires an agreement.
3.6 Default of payment
All invoice amounts must be credited to JAWA’s account specified in the invoice without deductions and free of charges in accordance with the agreed payment terms after receipt of the invoice. For partial invoices, the terms of payment specified for the entire order shall apply analogously. A longer term may be agreed with the customer in the offer.
The customer shall only be entitled to withhold or set off counterclaims if his claims have been recognized by declaratory judgment or acknowledged by JAWA. This restriction shall not apply to claims for partial non-performance or for defects which are based on the same contractual relationship as the claims of JAWA. If there is a defect, the customer may withhold payments only in proportion to the defect and only if the defect is beyond doubt.proportionate to the defect and only if the defect exists beyond doubt. If the contracting party is in default of payment, JAWA shall be entitled to charge interest on arrears pursuant to § 456 UGB (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 more than one month in arrears with his payment(s), JAWA shall be entitled to block access to the use of the software after prior written notice. The notice may also be contained in a reminder. The usage-independent fees, such as the full fees for the operation of the system, are owed even if access is blocked. JAWA expressly reserves the right to assert further claims for late payment.
4. cooperation; responsibilities of the customer
5. rights of use to the software; requirements
6. security, data protection
The customer is responsible for ensuring, within its own organization and for its employees the current state of the technology appropriate ITto take security measures. These include, but are not limited to, the installation and regular updating of common antivirus software on the laptops, computers or other mobile devices of the customer’s employees, ensuring the assignment and regular updating of secure passwords, in particular in accordance with the BSI IT-Grundschutz or other equivalent, recognized security standards, as well as for the laptops, computers or other mobile devices of the employees and the use of appropriate mechanisms (such as 2-factor authentication, automatic inactivity lock, firewall). The customer is further obliged to ensure the confidentiality of the identification and authentication data assigned to its users, i.e. also, for example, the organizational and, if applicable, technical prohibition of the disclosure of passwords and the prohibition of the use of so-called “shared accounts”. In addition, the customer must ensure the security of the Internet connection used, i.e. in particular the use of company-owned rather than public virtual private networks (VPN) and ensuring the use of VPN connections in public networks. If JAWA software is operated on customer servers at the customer’s request, the security of the server, the surrounding network and the data storage and backup locations shall be the sole and exclusive responsibility of the customer.
6.2 Data protection and data collection
JAWA raises and used the person-related Data of the Customers only in the Frame the each geltendency legal Provisions. The Contractual partner close for this one Agreement (Order processor-agreement) to the each valid Provisions required Scope from.
7 Liability and warranty
There shall be no warranty claims against JAWA for only insignificant deviations of the services from the contractual quality or usability. Liability for claims arising from the title of compensation law is excluded for claims against JAWA’s liability is limited as described below. JAWA shall only be liable for simple negligence:
- for damages resulting from injury to life, limb or health,
- for damages arising from the not insignificant breach of a material
contractual obligation (i.e. obligations whose fulfillment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, liability is limited to compensation for the foreseeable, typically occurring damage and in any case does not exceed the annual fee to be paid by the user for the use of the license, without adding any additional services charged. Otherwise, JAWA shall only be liable for damages – irrespective of the legal grounds – in cases of intent and gross negligence. In the event of gross negligence, however, liability shall be limited to compensation for foreseeable, typically occurring damage and shall in any case not exceed the annual fee to be paid by the user for the use of the license, maintenance and support fee, without adding any additionally charged services. Liability for loss of profit, indirect or consequential damages is excluded to the extent permitted by law, excluded. The exclusions or limitations of liability shall not apply if JAWA has fraudulently concealed a defect. or for claims of the customer under the Product Liability Act. Events of force majeure and other circumstances unforeseeable by JAWA, in particular delivery disruptions, pandemics, epidemics, catastrophes, wars, strikes, lockouts, shall release JAWA from its performance obligations for the duration of the disruption and a reasonable start-up period – even during an already existing delay. If the performance of the service becomes impossible or economically unreasonable due to the aforementioned circumstances, JAWA shall be released from its contractual obligations; claims for damages of the customer shall then be excluded.
8 Contract term, termination
9. confidentiality, copyright, trademark protection
The software provided by JAWA to the Customer is protected by copyright. JAWA shall remain 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 is not entitled to its provision. Any modification or manipulation of the Software by the Customer, unless clearly authorized in writing by JAWA, shall constitute a material breach of the Customer’s contractual obligations. Neither contracting party shall be entitled to disclose confidential information of the other contracting party to third parties without express consent (at least in text form). All information, whether in writing or transmitted verbally, which (i) is considered confidential or confidential by nature or (ii) which the contractual partner to whom the information is transmitted must already recognize as confidential or confidential due to the external circumstances of the transmission. Confidential information includes in particular product descriptions and specifications, contractual terms and conditions as well as prices deviating from those on JAWA’s website. Both parties undertake to use confidential information only for contractually agreed purposes. Both parties shall take at least the same precautions that they take with regard to their own confidential information. Such precautions must be at least adequate to prevent disclosure to unauthorized third parties. to prevent unauthorized disclosure. Both contracting parties are also obliged to prevent the unauthorized disclosure or use of confidential information by their customers, employees, subcontractors or legal representatives. The contracting parties shall inform each other in writing of any misuse of confidential information. The obligation to maintain confidentiality does not apply insofar as information:
- were demonstrably known to the contractual partner prior to the notification,
- were known or generally accessible to the public prior to the notification,
- become known or generally accessible to the public after notification without the cooperation or fault of the informed contractual partner,
- essentially correspond to information that is disclosed or made accessible to the informed contractual partner at any time by an authorized third party.
Furthermore, the Customer undertakes to treat all business, technical and scientific know-how acquired by JAWA in connection with the performance of the contract as confidential and to make it available to third parties only with the express consent of JAWA. The Customer further undertakes not to apply for any intellectual property rights to the know-how acquired by JAWA in the course of the performance of the contract. The duty of confidentiality ends seven years after termination of the contract, unless statutory or contractual regulations provide for a longer duty of confidentiality. Both parties shall comply with the applicable data protection regulations, in particular those applicable in Austria, and shall oblige their employees deployed in connection with the contract to maintain data secrecy within the meaning of the DSG and the GDPR, unless they are already generally obliged to do so.