GENERAL TERMS AND CONDITIONS of the XEAS GmbH
- The present General Terms and Conditions (hereinafter referred to as "GTC") shall apply to legal transactions between XEAS GmbH (hereinafter referred to as "XEAS") and customers concerning the provision, operation, maintenance and use of the system provided by the XEAS provided service for managing the passwords of the customers.
- Any terms or conditions of the customer deviating from these GTC shall not be valid unless expressly agreed in writing between XEAS and the customer have been agreed upon. The customer's general terms and conditions shall not become part of the contract even if they have been sent in advance to XEAS transmitted and from XEAS not be contradicted.
2. subject matter of the contract
- Subject of the service of XEAS is the provision, operation and maintenance of the mobile and web application for recording and managing passwords of the Customer's employees in the respective current version (hereinafter referred to as "System"). The Customer may store and access passwords via the System.
- It is expressly stated that training in the system is not included in the service fee, unless this is expressly agreed in deviation from this provision. Should training be agreed, it shall be at the exclusive discretion of XEAS how the school enrollment is designed.
- XEAS is entitled to commission third parties with the fulfillment of its obligation.
- Without the consent of the XEAS the customer shall not be entitled to assert any rights arising from these GTC or any other XEAS agreements concluded to third parties.
3. conclusion of contract
After corresponding request of the customer transmits XEAS together with these General Terms and Conditions, which shall be valid for 14 days, unless a longer period of validity is indicated on the offer. Further transmitted XEAS the technical requirement profile to the customer in order to communicate the prerequisites of the operation of the system. With written acceptance of this offer by the customer, the customer confirms on the one hand the existence of the technical requirements and on the other hand the contract between XEAS and the customer for an indefinite period. The start date is then determined by the date contained in the offer. If there is no such date, the contractual relationship shall commence at the earliest with the provision of the login data by XEAS (see point 4.a).
4. rights of the customer
- After conclusion of the contract transmits XEAS the customer within a reasonable period of time the login data for the initial access to the system and the Internet address required for this purpose.
- The customer is entitled to the exclusive right to use the system against payment during the term of the contract.
- The customer may create additional users to the customer's account. If necessary, additional login data will be provided to the customer. The billing of the registered users takes place at the end of each month (see point 7), unless otherwise expressly agreed.
5. obligations of the customer
- The customer is obliged to inform all users in good time before the start of use about the prerequisites, rights and obligations in connection with the use of the system and to point out to the users that they must comply with the agreement made. The customer is liable for all breaches of duty of the users assigned to him as well as other third parties who commit breaches of duty within the sphere controllable by the customer.
- The customer and the users named by him are obliged to keep the login data required for the use of the system (in particular user name and password) secret, to store them in a protected manner and to protect them against unauthorized access by third parties by taking appropriate precautions. The customer and the users are prohibited from making their login data available to third parties; use is only permitted personally by the customer or the users. In this context, the customer and also the users undertake to change the password used at regular intervals.
- If the customer uses the services of the XEAS personal data is processed and there is no legal basis for permission, the customer must obtain the necessary consent of the person concerned. Furthermore, the customer shall comply with all domestic and foreign regulations applicable to him regarding personal data processing and XEAS from any claims by third parties and to indemnify and hold them harmless.
- The customer undertakes not to store or otherwise process any content in the system and in the cloud that violates applicable law or agreements with third parties. In particular, the Customer undertakes not to store or otherwise process any content that is offensive, racist, pornographic, terrorist or otherwise (criminally) illegal, or that infringes the copyright or personal rights of third parties. Private use with regard to the storage or other processing of private content that infringes the copyrights of third parties is also not permitted. The customer shall be responsible for any licensing of copyright-relevant content and shall hold XEAS completely indemnified and held harmless in this respect.
- The customer is obliged to report unauthorized or improper access to the system, as well as other security-relevant circumstances (in particular hacker attacks, etc.) immediately upon becoming aware of them or upon suspicion of the existence of such a circumstance in writing to XEAS to be announced.
- The use of the system does not release the customer from saving the passwords independently in order to still be able to access the individual passwords in the event of a system failure.
- Setting up, securing and maintaining an Internet connection is the sole responsibility of the customer, who must also bear the costs incurred for this. The customer is also responsible for ensuring that any data stored in the system is free of viruses or other harmful components. For any damage in this regard, the customer has to XEAS indemnify and hold harmless.
- Furthermore, the customer undertakes to notify any changes to his data (e.g. name, address, e-mail address, etc.) without delay. Until the receipt of such notification is XEAS shall be entitled to make delivery to the last known address and any transmission to this address shall be deemed to have been received by the customer.
- The system is available to the customer 24 hours a day, 7 days a week. The system is operated by XEAS serviced at regular intervals or on an ad hoc basis to maintain trouble-free functionality.
- This maintenance is carried out - if possible - during low-use periods (preferably between 6 p.m. and 8 a.m. Central European Time).
- The customer shall not be entitled to any claims arising from temporary interruptions or impairments of the system. In particular, for interruptions or impairments of the system, for which XEAS is not responsible (in particular force majeure, war, natural disasters, hacker attacks, etc.) shall not lead to any claims of any kind whatsoever on the part of the customers.
- XEAS provides a support hotline at +43 664 4547717,
which the Customer may contact in case of malfunctions or problems from Monday to Friday (except for public holidays) in the time from 10 a.m. to 4 p.m. Central European Time (telephone charges according to the Customer's contract with the telephone service provider will be incurred, which will be paid by XEAS are not replaceable; beyond that, no fees apply). Requests are handled by XEAS according to urgency. The task of this support hotline is to answer short questions about regular operation and to accept fault reports. There is no separate charge for such services, as long as the workload for these inquiries does not exceed the usual scope for the services in question or comparable services.
- The customer shall cooperate in the determination of defects, problems or other malfunctions. The customer shall XEAS in particular to provide verifiable documents or information on the type and occurrence of deviations from the service description or on other disruptions and to state how this disruption manifests itself, has an effect and under what circumstances it occurs. The customer further undertakes, XEAS grant the possibility of remote access to its systems.
- The customer further undertakes to comply with the XEAS promptly adopt recommended measures to work around or correct an error, and XEAS provide the best possible support in isolating or rectifying the fault.
- Due to errors in devices or programs of other manufacturers, which are set up or installed at the customer's and which are not part of the software or programs supplied on the basis of the agreement of XEAS are services to be rendered, no performance of XEAS be claimed. The same applies to operating errors made by users.
7. remuneration and its settlement
- The prices specified in the contract (which is concluded by acceptance of the offer) apply to the use of the system. Unless otherwise agreed, the fee shall be charged per registered user/employee.
- The invoice will be issued monthly in arrears. The fee will be collected by XEAS via SEPA direct debit and the customer undertakes to grant XEAS a corresponding direct debit mandate.
- It is expressly agreed that the value of the remuneration shall remain stable.
- Price changes beyond the stable value remain XEAS reserved. In any case, if technical or legal requirements make an adaptation of the system necessary, which is associated with additional costs, is XEAS entitled to increase the prices appropriately.
- A set-off of claims of the customer with the remuneration is excluded.
- In the event of late payment, interest on arrears of 12% is agreed. In the event of late payment, the Customer further undertakes, XEAS to reimburse the reasonable dunning charges and legal fees incurred.
8. lock / insolvency
- If the customer does not fulfill his payment obligation despite setting a grace period of 14 days, if he violates essential obligations from this contract or if there is a reasonable suspicion that the customer's use of the system is illegal or violates the rights of third parties, then XEAS entitled to block the access of the customer and the users registered on his customer account. XEAS will inform the customer about the blocking of the account and the reason for this. The contractual obligations of the customer, in particular to pay the fee, shall remain unaffected. XEAS reserves the right to derive further rights from the customer's breach of contract.
- In the event of the customer's insolvency or the rejection of the insolvency petition for lack of assets, the provisions of §§ 23, 24 IO shall apply.
- XEAS shall endeavor to make the system available to the customer as far as possible without interruptions. XEAS is, however, entitled to temporarily suspend the system for the purpose of maintenance, testing, replacement, repair or for other operational or system-related purposes. The customer may not derive any claims of any kind from this.
- XEAS grants that the data is stored on servers located exclusively in Europe.
- Furthermore, any warranty is excluded. XEAS in particular does not guarantee that the system will be permanently accessible to the customer without interruption, delay or malfunction, that the connection can always be established and that the customer's data will remain stored under all circumstances.
- No warranty claims can be derived or liability established from information in catalogs, brochures, advertising literature and written or oral statements that have not been included in the contract.
- XEAS shall only be liable in the event of intent or gross negligence; the reversal of the burden of proof pursuant to Section 1298 (2) of the Austrian Civil Code is expressly excluded.
- XEAS is expressly not liable for damages caused by slight negligence, with the exception of personal injuries caused by law.
- For all damages a liability of XEAS excluded, irrespective of the legal grounds, insofar as this is legally permissible. This exclusion of liability applies in particular to liability arising from culpa in contrahendo, tort, inability or impossibility of performance and for consequential damages, lost profits, indirect damages, damages arising from third-party claims, expected but not realized savings, damages arising from software program errors, hacker attacks, damages due to non-compliance with technical requirements by the customer, loss of or damage to data, damages in connection with business interruptions of the customer.
- In addition, the Customer's claims for damages shall in any case be limited to the amount in euros that the Customer would have had to pay for the use of the system for the entire year in the year in which the damage occurred, measured in terms of the number of employees/users that the Customer had registered at the time the damage occurred.
- A limitation period of one year is agreed for claims for damages; this period begins at the time at which the customer had or should have had knowledge of the damage.
- For events of force majeure, which significantly impede the provision of the contractual service or the proper fulfillment of the obligations of XEAS prevent or render impossible, is liable XEAS not.
10. contract duration and termination
- A minimum contract term of one year is agreed. After expiry of the minimum contract term, the contract shall be extended by one year unless it is terminated in writing at the end of the minimum contract term subject to a notice period of three months.
- XEAS is entitled to terminate the contract with immediate effect for good cause (extraordinary termination).
- Good cause for extraordinary termination shall exist in particular if the customer seriously breaches its obligations, is in default with the fulfillment of its contractual obligations, in particular the payment obligation, despite a grace period of 14 days being set, there is any other circumstance which XEAS makes it impossible or unreasonable to maintain the contractual relationship or if XEAS ceases operation of the system for whatever reason.
Any changes to the GTC will be XEAS inform the customer on their website or in another form. The customer has the possibility to object to the change in writing within 14 days after receipt of the information, if it represents a subsequent change for him. In this case, the contractual relationship shall be deemed terminated with immediate effect. If no objection is made, the changes shall be deemed accepted.
The structure of the system, their design and the contents are protected by copyright.
13 Choice of Law / Place of Jurisdiction
- Austrian law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods, as well as the Incoterms and the reference standards. Any disputes shall be settled by the competent court at the XEAS court with subject-matter jurisdiction.
- Should any provision of this contract be or become invalid and/or incomplete, such provision shall be replaced by a provision which comes as close as possible to the invalid or incomplete provision in economic terms. The invalidity or incompleteness of a provision shall not affect the validity of the other provisions.
Booth: July 2021