General Terms and Conditions

JAWA Management Software GmbH

Version from 27.08.2021

1. Scope of application and amendments to the GTC

JAWA Management Software GmbH, based in Graz, Austria (hereinafter referred to as “JAWA”), generally offers customized software solutions and related services on its website www.jawa.at (hereinafter referred to as the “Website”). The following General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to all usage, license and consulting agreements and similar agreements (hereinafter referred to as “Agreements”) concluded between JAWA, the customer (hereinafter referred to as “Customer”) and partners. Upon conclusion, the Customer declares that he agrees to these GTC. The GTC shall apply exclusively unless they are amended or supplemented by an express written individual agreement. All orders and agreements shall only be legally binding if they are signed by JAWA in writing and in accordance with the company name and shall only bind JAWA to the extent specified in the order confirmation. Deviating, conflicting or supplementary general terms and conditions of the customer, even if known, shall not become part of an order or the entire business relationship, unless JAWA expressly agrees to their validity in writing. The GTC apply in the version valid at the time the contract is concluded. The current and valid version is published on the Internet at www.jawa.at published. In any case, they shall also apply even if no reference is made to them in contracts concluded at a later date. JAWA shall inform the customer in writing by e-mail of any changes to the GTC. The amended terms and conditions shall become effective if the customer does not object to their validity in writing within six weeks of notification. The customer may be notified of the amendment of the General Terms and Conditions by any means of communication agreed between JAWA and the customer.

2. Services and conclusion of contract

The services offered on the website of JAWA do not constitute a legally binding offer, but merely a request for an offer by the customer. The contract between the customer and JAWA shall in any case be concluded by written order by the customer and order confirmation by JAWA. The specific content and scope of the services to be provided by JAWA as well as the price to be paid for them shall be determined by JAWA.The fee to be paid shall be based on the agreement made between JAWA and the customer. All agreements made between the parties upon conclusion of the contract are set out in full in writing in the offer and the contract; all prior oral agreements and collateral agreements shall become invalid upon conclusion of the contract, unless they correspond to the agreements set out in writing in the contract and the offer. JAWA’s employees are not authorized to make any oral collateral agreements that deviate from or go beyond the written contractual agreement. JAWA reserves the right to expand or restrict its products or services at any time or to make any other changes whatsoever, in particular for reasons of technical or legal necessity. Significant changes shall be notified to the customer at least one month prior to their implementation. In the event of significant changes that result in a significant reduction in performance, customers may terminate their existing contractual relationship for the use of the software without notice within one month of receipt of the notification of change with effect from the effective date of the change. Such termination must be made in writing. Performance dates and deadlines may be changed for organizational reasons, unless they are expressly designated as binding. JAWA shall notify the customer of changes to dates and deadlines within a reasonable period of time. We expressly point out that a barrier-free design (of websites) within the meaning of the Federal Act on the Equality of Persons with Disabilities (“Federal Disability Equality Act”) is not included in the offer, unless this has been separately and explicitly requested by the customer. If the barrier-free design has not been expressly agreed, it is the responsibility of the customer to check the service for its admissibility with regard to the Federal Disability Discrimination Act. The customer must also check the content provided by him for its legal admissibility, in particular under competition, trademark, copyright and administrative law. In the event of slight negligence or after fulfilling any duty to warn the customer, the customer shall not be liable for the legal admissibility of content if this was provided by the customer.

3. Fees and terms of payment

3.1 General information
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

The following cooperation services are the customer’s main performance obligations and are not to be regarded solely as secondary obligations or duties. The customer shall support JAWA in the performance of the services owed by JAWA under the contract. For this purpose, the Customer shall provide information, data and other material necessary for JAWA to perform the agreed services in a timely manner. Any deadlines at JAWA’s expense shall not commence until the customer has fulfilled his obligations. The customer is obliged to provide and maintain the contact details of a qualified contact person and a deputy. This person is authorized to make or promptly bring about all necessary decisions that are required to provide the contractually agreed service. If tasks have to be carried out twice due to the customer’s failure to cooperate or failure to cooperate on time, JAWA shall be entitled to invoice these tasks additionally after prior notice, stating the expected additional costs. If the services of JAWA are provided in whole or in part via an internet connection, JAWA shall provide the services within the scope of its technical and operational possibilities. The customer shall establish the connection to the computers via the Internet at his own expense and under his own responsibility.

5. Rights of use to the software; requirements

With the purchase of the user license, the customer receives a simple (non-exclusive), non-transferable right of use limited to the agreed number of employees and for the duration of the contract. All software offered is the property of JAWA. The transfer of any part of the software is expressly prohibited. With the acquisition of the right of use, the customer is entitled to use the content of the account set up for him or his employees and the functionalities of the software to process his own data of the employees working in his business operations (hereinafter referred to as “employees”). “user data”) for its own purposes. JAWA shall determine which system landscapes, browsers and operating systems are supported by the software in detail. JAWA shall inform the customer about the supported browser versions prior to the conclusion of the contract. There is no entitlement to the support of specific system environments, operating systems or browser versions. It is expressly pointed out that the customer himself is responsible for compliance with data protection and other legal provisions. The customer shall take appropriate precautions to protect the software from unauthorized access by third parties. The Customer shall bear the costs caused by a breach of this obligation and shall indemnify and hold JAWA harmless from and against any costs and claims of third parties arising from the breach of this obligation. Third parties within the meaning of this paragraph are not affiliated companies within the meaning of § 189a Z 8 UGB. The customer is responsible for the technical administration of the software. This shall apply irrespective of whether JAWA supports the Customer in setting up the software in any form whatsoever. The Customer shall be solely 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 scope of the applicable statutory provisions and not to infringe any third-party rights when using it.If the customer or a user endangers the security of the software by his behavior, JAWA shall be entitled to block access to the software application after prior written notice until the security risk has been eliminated. If the security of other customers of JAWA is jeopardized, access may be blocked without prior notice and with immediate effect until the security risk has been eliminated. In this case JAWA shall inform the customer immediately and in writing about the blocking and its expected duration.

6. Security, data protection

6.1 Safety measures
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:

  1. for damages resulting from injury to life, limb or health,
  2. 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

Unless otherwise agreed (e.g. in the case of fixed-term contracts), contractual relationships may be terminated by either party without stating reasons, in text form and subject to a notice period of three months to the end of the calendar month. The customer must give notice of termination in text form and is responsible for providing proof of receipt. JAWA may terminate the contract extraordinarily with immediate effect if the customer breaches material contractual obligations and continues the breach despite a warning by JAWA or does not remedy the breach. The same applies if the customer is more than 30 days in arrears with a due payment despite a reminder. In the event of termination by the customer, JAWA shall provide the customer with all data stored by the customer within the software in a commonly used format. The provision shall take place within a period of 30 calendar days from the end of the contractual relationship.

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:

  1. were demonstrably known to the contractual partner prior to the notification,
  2. were known or generally accessible to the public prior to the notification,
  3. become known or generally accessible to the public after notification without the cooperation or fault of the informed contractual partner,
  4. 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.

10. Final provisions, jurisdiction agreements and choice of law

Amendments and additions to contracts must be made in text form in order to be valid. This also applies in particular to changes to the text form itself. Should one or more provisions of the respective contracts (including these GTC) be or become invalid or ineffective, or should there be a loophole, the validity of the remaining provisions shall remain unaffected. The invalid or ineffective provisions shall be interpreted or replaced in such a way that they correspond as closely as possible to the intended purpose of the agreement. The same shall apply in the event of a contractual loophole. All disputes arising directly or indirectly from the contract shall be settled exclusively by the Austrian court having local and subject-matter jurisdiction for JAWA (registered office in 8041 Graz). If JAWA should actively bring an action, this can be done at any other permissible place of jurisdiction in addition to the place of jurisdiction described above (agreement on the place of jurisdiction). The legal relationship between JAWA and the customer shall be governed by Austrian law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply. Nor shall the conflict of law rules of private international law apply (choice of law).