General Terms and Conditions
Version: 4 September 2023
- General, scope of application, authorisation to modify
- Conclusion of contract, scope of performance
- Client’s duties to collaborate and provide resources
- Performance catalog
- Additional provisions for software development
- Additional provisions for IT support and maintenance services
- Additional provisions for consulting services
- Usage rights, copyright law, and licensing
- Delivery, Acceptance
- Misrepresentation, Warranties
- Force majeure
- Limitation of Liability
- Remuneration and payment terms
- Term of contract and termination notice
- Data protection
- Other rights and duties
- Jurisdiction, dispute resolution
- Final provisions, applicable law
1. General, scope of application, authorization to modify
1.1. IXOPAY GmbH, FN 451099g, Mariahilfer Straße 77-79, 1060 Vienna, Austria and provides works and services in the field of information and communications technology (“Deliverables”).
The Deliverables of IXOPAY towards the contractual partner ("Client") are provided within the scope of these General Terms and Conditions (“GTC”).
1.2 The GTC shall apply to all Deliverables provided by IXOPAY to its Client. The GTC form an integral component of each contract concluded by IXOPAY unless expressly agreed otherwise in writing. IXOPAY expressly objects to any supplementary or altering contractual terms, as well as to any GTC of the Client. These shall only apply if they are acknowledged by IXOPAY expressly and in writing. Employees of IXOPAY are not authorised to make oral subsidiary agreements or oral covenants.
1.3 Legally binding communication with the Client (inter alia invoicing) is primarily handled via email to the email address (i) mentioned in the order document; (ii) in absence of such: as mentioned in Client's website imprint; (iii) only if Client's email address cannot be determined by alternatives (i) and (ii): via registered letter to the business address as last notified by Client (jointly "Delivery Address"). Client shall notify IXOPAY of any change of its Delivery Address without undue delay, in absence of which declarations sent to the Delivery Address under (i) to (iii) shall be deemed to have been served effectively.
1.4 The GTC shall apply in its latest version as published on IXOPAY's website at the time of the conclusion of the contract. Please save a copy of the GTC for your records as IXOPAY does not retain a copy for you. In the event of continuing obligations, IXOPAY shall be entitled to unilaterally modify the GTC applying as of the effective date: The modified GTC shall be sent to the Client. If Client does not object to the modified GTC in writing within an objection period of four weeks after receipt of the notice of modification or continues to use the respective Deliverable(s) thereafter, the modified GTC take effect upon expiry of the objection period. In case of an objection, IXOPAY can terminate any contract(s) to which the previous GTC apply for cause, jointly or individually, on the first day of the month following the objection. Provided that IXOPAY does not terminate the Agreement with the Client, the previous GTC shall continue to apply to this Client.
1.5 Unless expressly stated otherwise, all quotes of IXOPAY shall be non-obligatory and all cost estimates shall be non-binding. IXOPAY reserves the right to invoice a reasonable fee for cost estimates and individual quotes in the event that the Client refrains from placing an order.
1.6 Client confirms to act as an entrepreneur under the Austrian Commercial Code ("UGB") and that the Agreement is not entered into in order to create preliminary conditions for a business in the meaning of § 1 sec 3 of Austrian Consumer Protection Law ("KSchG"). Client further warrants that, within its sphere, the Deliverables are not used by minors, consumers or unauthorized third parties.
2. Conclusion of contract, scope of performance
2.2 The type and scope of the Deliverables of IXOPAY shall be determined by the conditions of the respective Order Document including any statement of work ("SOW") and attachments contained therein. Oral modifications or additional agreements shall not be binding for IXOPAY.
2.3 IXOPAY shall not be required to provide Deliverables other than those defined in the Order Document. If new requirements of the Client make it necessary to change the Deliverables, respectively the technologies utilised, then IXOPAY shall submit a separate quote at the request of the Client. If the Client makes use of Deliverables of IXOPAY beyond the respectively agreed scope of performance without concluding a separate agreement, then IXOPAY shall invoice these services according to the actual effort at an hourly rate of EUR 175.00 excluding VAT. In particular, this shall include performance outside the ordinary Business Hours, the analysis and resolution of malfunctions or Errors that arise due to improper handling or operation by the Client or due to other circumstances for which IXOPAY is not responsible. The provision of training and documentation shall only be owed if and to the extent that they are expressly agreed in the Order Document. Should IXOPAY make an exception and provide Deliverables free of charge that are not a contractual obligation, then these may be discontinued at any time without notice.
2.4 The individual Deliverables are separable and shall be invoiced separately. Deliverables of IXOPAY shall not be regarded as Projects and shall be viewed as separate from any Client projects. They shall only form components of a Client’s project or of a project implemented by a third party on behalf of the Client with express written agreement. This shall also apply if, from the Client’s point of view, the Deliverables are incorporated technically, organisationally, and/or temporally into an IT project. The Client’s duties with regard to IXOPAY shall be neither suspended nor limited due to delay in such a project.
2.5 IXOPAY shall provide its Deliverables during its ordinary Business Hours. These are Mon. - Thu. 03:00 - 11:00 EST (09:00 - 17:00 CET), Fri. 03:00 - 09:00 EST (09:00 - 15:00 CET) (“Business Hours”).
2.6 IXOPAY shall be entitled to modify the equipment and means utilised to provide the Deliverables at its own discretion if no negative impact to the Deliverables can be expected from this. The selection of employees who shall provide the Deliverables shall be made by IXOPAY. IXOPAY shall be entitled to replace assigned employees with other, appropriately qualified employees at any time.
2.7 In accordance with statutory laws, IXOPAY can appoint qualified third parties, whether natural or legal persons (“Subcontractor” or “Vicarious agent”), having their registered seat in- or outside the EAA, with the performance, wholly or partially, of the Agreement.
2.8 If the scope of performance also includes Third-Party Services such as purchase of components from, and delivery of these by, third parties and/or delivery of third-party software (“Third-Party Services”), IXOPAY shall identify, respectively note, these accordingly in the quote. By placing an order, the Client authorises to commission these Third-Party Services on behalf of and for the account of the Client. In this case, a direct contractual relationship shall form between the third party and the Client. Any claims arising from this relationship shall be handled directly and exclusively between these parties. Alternatively, IXOPAY reserves the right to commission the Third-Party Services in its own name, but for the account of the Client. In this case, the claims of the Client with regard to Third-Party Services shall be limited to the assignment of any claims of IXOPAY against the third-party to the Client.
2.9 IXOPAY reserves the right to modify or make improvements to the agreed Deliverables, provided that such a modification or improvement is customary, is necessary due to statutory provisions, or is reasonable for the Client with consideration to the interests of IXOPAY.
3. Client’s duties to collaborate and provide resources
3.1. The proper provision of Deliverables by IXOPAY presupposes qualitatively flawless, on-schedule support by the Client, respectively by the Client’s qualified personnel. The Client undertakes to support all measures that are necessary for IXOPAY to provide the Deliverables. If the IT structure of the Client does not fulfil the technical requirements of IXOPAY for the provision of Deliverables and operation, then adjustments, if any, shall be made by the Client. To the extent that the cooperation and/or provision of resources by the Client or by third parties is necessary for the performance of the Agreement, the Client shall be obligated and responsible to ensure that the performance of all measures to cooperate or provide resources, as appropriate or necessary, is on time and carries no cost for IXOPAY.
3.2 Unless this was expressly agreed as the scope of performance, the Client must procure, maintain, and keep in good working order the technical operational environment, respectively infrastructure, necessary for the provision and use of the Deliverables of IXOPAY at its own cost and risk. This shall apply in particular to the utilisation and appropriate processing of the Deliverables of this Agreement via long-range data transmission (telephone, fax, email, Internet connection). In particular, the Client shall take suitable technical measures to protect its system against third-party access and to identify malware or malicious programs. Additionally, the Client must ensure the performance of a regular back-up of its data independently and in such a way as to prevent data loss.
3.3 The Client must inform IXOPAY pro-actively and in writing of all characteristics of its IT structure, its operational organisation, and the software that it uses, as well as of all circumstances that could prevent, delay, or otherwise negatively impact the Deliverables. In particular, the Client must submit to IXOPAY the documents and information needed in connection with the Deliverables without delay and in their entirety.
3.4 The Client must ensure that its employees and the third parties that are attributable to it treat with care the equipment and technologies employed by IXOPAY as well as any assets relinquished to the Client. The Client shall be obligated to treat as confidential the passwords/login data necessary for the use of the Deliverables of IXOPAY. The Client shall be liable to IXOPAY for any damage arising from improper handling of the released materials, equipment, technologies and/or passwords/login data.
3.5 The Client shall, without delay and comprehensively, review the software provided to it as part of a Deliverable.
3.6 IXOPAY shall not be obligated to verify the quality, respectively the absence of errors, nor the accuracy, respectively completeness, of cooperative performances or resources provided by the Client.
3.7 The Client shall perform in a timely manner all cooperation duties by which it is bound so as not to obstruct the provision of Deliverables on the part of IXOPAY. The Client shall be responsible to ensure that its employees or third parties appointed by the Client, cooperate in the performance of the Agreement. In the event of non-fulfilment of a duty of cooperation or provision of resources, IXOPAY shall grant the Client a reasonable grace period up to a maximum of 14 days to remedy this and fulfil these duties retroactively. If delays and/or additional costs result from the improper or untimely cooperation of and/or provision of resources by the Client, IXOPAY can demand modifications to the agreed schedule and remuneration, notwithstanding further legal rights. Any additional effort shall be invoiced by IXOPAY according to actual effort with an hourly rate of EUR 175.00 excluding VAT. Conversely, the Client shall not be entitled to assert claims against IXOPAY due to delay and/or additional costs for which the Client is responsible. If the Client fails in its duty in spite of the setting of a grace period, IXOPAY shall be entitled to terminate the Agreement for cause with immediate effect. In this case, the fee owed until any agreed minimum contract period shall be automatically due upon the termination of the Agreement.
4. Performance catalog
4.1. IXOPAY can provide Deliverables for the Client in the areas of Information technology, in particular development and implementation of software, maintenance and support services, IT consulting, as well as promotion and client support services.
4.2 In principle, the Client has no claim to a specific completion date or a specific response time as part of the provision of Deliverables, unless this is expressly agreed in writing in the Agreement. Even in this case, the Client must accept instances in which deadlines are exceeded to a minor extent without being due a claim for damage compensation or right of rescission.
4.3 The place of performance shall be determined by IXOPAY according to technical, spatial, and organisational conditions at its own discretion.
4.4 The period of performance shall be stipulated in writing by IXOPAY and the Client in the contract. Otherwise, IXOPAY shall begin to provide the Deliverables as soon as possible, but in any case within 30 days from the conclusion of the contract.
4.5 Deliverables provided shall be documented by IXOPAY's records of working hours unless a flat rate agreement applies for the respective Deliverable.
5. Additional provisions for software development
5.1. With (individual) programming, in addition to the general obligation of cooperation, the Client must create a complete requirements document and must define the framework conditions for the (individual) programming. The Client shall be bound by this requirements document and by these framework conditions. Modifications to the requirements document and to the framework conditions shall only be binding for IXOPAY with its written consent and may result in deviations from the deadline and from price agreements for which IXOPAY is not responsible. Unless otherwise agreed in the Order Document, as from receipt of the requirements document, IXOPAY can request a downpayment of up to 50 % of the agreed fee. If the Client does not comply with this request completely and/or in due time, IXOPAY can refuse its performance and, after having set an adequate grace period, declare the cancellation of the contract.
5.2 IXOPAY shall not be obligated to review the requirements document for lawfulness, accuracy, completeness, or feasibility and does not assume any obligation to warn the Client in this regard (Section 5.4 remains unaffected by this). IXOPAY undertakes commercially reasonable efforts to fulfil the user specifications. The Client undertakes to make available any necessary interfaces as well as real data for testing purposes. The Client shall sufficiently protect any development and test environments required for fulfilment from unauthorised access.
5.3 Insofar as stipulated in the Order Document, IXOPAY shall take over the creation of the requirements document pursuant to Section 5.1 on the basis of the information and data provided by the Client for a separate fee (no obligation to provide a binding schedule for implementation (roadmap) shall exist in absence of a prior separate agreement). In this case, the Client shall review the requirements document provided for accuracy and completeness and endorse it. The provisions of Section 5.2 shall apply by analogy.
5.4 Should it become apparent in the course of the provision of Deliverables that such provision, if based on the requirements document, is actually or legally impossible, IXOPAY shall notify the Client. If the Client does not modify the statement of work to that effect, respectively accomplishes the prerequisite necessary for performance to become possible, IXOPAY can refuse performance. If the impossibility of performance is the result of an omission on the part of the Client or of a modification after the fact of the statement of work by the Client, then Section 3.7 shall apply.
5.5 Individual programming shall be accepted by the Client after implementation, respectively installation. The specific test shall be guided by the agreed usage of the software and must be coordinated with IXOPAY (Section 9 shall apply accordingly).
6. Additional provisions for IT support and maintenance services
6.1. IXOPAY shall provide maintenance services agreed in the Order Document for software defined therein during its Business Hours (Support Hours). Maintenance services shall be performed by IXOPAY via remote servicing. Provision of Deliverables at the site of the Client shall require a separate order and shall be performed against a separate fee.
6.2 In particular, maintenance services include deliveries of general program versions with general error corrections and adjustments to the software, as defined in the Order Document, offered as part of maintenance services during the contract term (“Updates”). However, new program versions that contain substantial feature enhancements or standalone program expansions (“Upgrades”), are excluded.
6.3 During agreed Support Hours, IXOPAY accept error notifications from the Client via email as set forth in Section 6.6 and offers the Client assistance and support for dealing with Errors and using the software to the extent reasonably required.
6.4 In particular, an “Error” exists if a software does not fulfil the functions designated in the SOW; or delivers incorrect results, uncontrollably shuts down when running, or does not function properly in another way, such that the use of a software is impossible or significantly limited and the Error is reproducible. Any malfunctions that result from interaction with other software products and operating Errors shall not be covered.
6.5 The Client shall inform IXOPAY immediately and in writing of any Errors by sending an email to [email protected]. The Client shall provide detailed information on how the Error manifests itself, its effects and the circumstances under which it occurs. IXOPAY shall categorise the Error at its own discretion and assign it an error class. If no response times are explicitly agreed in the Order Document, IXOPAY shall, each within a reasonable time period, (i) begin taking measures to fix the Error, and (ii) endeavour to deliver a fix or make a workaround available.
6.6 The reasonable period for troubleshooting and remedying defects shall be determined by the severity of the Error (“Error Classes”):
The Error is critical (i.e. impeding operation) if the appropriate use of a part of, or of the entire, software is not possible or is unacceptably limited. The Error has a serious influence on processing business or on security. Continued work is not possible.
The Error is severe if the appropriate use of a part of, or of the entire, software is seriously limited. The Error has a significant influence on processing business or on security, but continued work is possible.
The Error is minor if the appropriate use of a part of, or of the entire, software is not significantly limited. The Error has little to no influence on processing business or on security, and continued work is possible.
6.7 Insofar as IXOPAY provides the Client with software updates within the scope of the Agreement that require an installation, the Client shall perform this installation promptly. Should the Client fail to do so, IXOPAY shall be released from the obligation to provide the Client with additional maintenance and support service for the service components; this shall not affect the obligation to pay the agreed remuneration. In this case, fixing the Error shall only be performed by IXOPAY as part of a separate order and in return for separate remuneration.
6.8 Troubleshooting and increased expenditure for the maintenance of the software that are necessary due to use in breach of contract, use in an operational environment other than that agreed, improper use, outside influence, force majeure, or due to a reason for which IXOPAY is not responsible, are not included in the agreed maintenance and support services. In such cases, IXOPAY shall provide Deliverables only as part of a separate order and for a separate fee.
6.9 The Client shall designate a qualified contact partner for IXOPAY who is exclusively authorised to utilise the agreed maintenance and support services. The Client shall ensure that this contact partner is trained so as to be suitable as a contact for IXOPAY with regard to support for any problems that arise with the item to be maintained. IXOPAY can charge Client for additional expenditures in accordance with the applicable rates at the time arising out of any examination of Client Error notifications in the event no Error had occurred, such fact having been apparent to Client under due care.
6.10 Support services: If support services are agreed, IXOPAY will support the Client to an adequate extent in order to enable the Client to appropriately implement individual use cases, and to resolve or work around problems and Errors independently. IXOPAY shall not be obligated to provide actual availability of the software or any problem or error resolution with the support if not agreed otherwise in the Order Document. The same shall apply to general instructions for the utilisation of the software. In particular, the support shall not replace any user training or consultation of the handbook.
7. Additional provisions for consulting services
7.1. Within the scope of consulting services, IXOPAY shall provide its expertise regarding the optimisation of IT projects, products, and applications (“Projects”). The specific scope of performance shall be determined in the respective Order Document. IXOPAY can look into and evaluate diverse Projects in their current design and prepare future-oriented concepts for the design and/or focus of the project. The Client acknowledges that comprehensive changes and/or an entire reorientation of the current project could also result from the consulting services.
7.2 Furthermore, in terms of advertising the respective project, IXOPAY can advise the Client regarding products and their functionalities, and regarding corresponding public relations activities.
7.3 IXOPAY shall discuss the status of the consulting services and their results with the Client on a regular basis. If the Client submits change requests or other input, IXOPAY shall incorporate these in the consulting concept where appropriate and feasible.
7.4 The Client shall enter into a separate agreement with IXOPAY in advance of the implementation of a concept recommended by IXOPAY. Apart from that, the Client may implement the results of the consulting services itself, entirely or in part, on its own authority with the required diligence and quality.
8. Usage rights, copyright law, and licensing
8.1 Unless expressly agreed upon otherwise within the Order Document, Client acknowledges that IXOPAY shall be exclusively entitled to all rights, in particular the exclusive exploitation, editing, and moral rights, to all software and their accompanying documentation as set out in the Order Documents and released, respectively provided, to the Client. The Client shall have solely those powers over the software and the accompanying documentation that are stipulated in the Agreement. IXOPAY expressly reserves all other intellectual property rights. In particular, IXOPAY shall be exclusively entitled to all rights to the source code and the documentation of the software developed or enhanced in the context of the performance of the Agreement.
8.2 In case of individually agreed upon rental of software (in particular regarding SaaS offerings), the Client shall receive, aside from the mandatory statutory rights (cf. Section 9.2), the non-exclusive, non-transferable right to use the software within the scope agreed in the Order Document, but for a limited time (“Temporally Limited Usage Permission”). The usage right shall commence with the commencement of contract defined in the Order Document. The Client must pay the fees for the duration of the term agreed in the Order Document for the Temporally Limited Usage Permission.
8.3 The Client may only use the software for the agreed purposes. Each and any further use is forbidden. In particular, any sale and/or editing as well as transfer of the software and any accompanying documentation is prohibited.
8.4 The Client may transfer and/or assign (including by operation of law) its usage permission for the software to a third party only if IXOPAY approves the transfer in writing and the third party has submitted to the usage restrictions. In the case of such a transfer, the usage permission of the Client shall end automatically. The Client has no claim to approval from IXOPAY. In particular, IXOPAY can make its consent contingent upon the conclusion of a maintenance and support contract or an advance payment.
8.5 Documents, proposals, test programs or similar documentation of the software provided by IXOPAY are the intellectual property of IXOPAY or of third parties. The Client shall not reproduce and/or provide these to third parties. If no contract is formed, these shall be given back or deleted/destroyed at the option of IXOPAY, and shall not be used or shared.
8.6 The Client shall document its use in written or electronic form, enabling IXOPAY to thoroughly verify Client's compliance with the agreed usage permission. Client shall provide such documentation to IXOPAY upon notice within five working days. Furthermore, IXOPAY may audit the Client’s fully compliant usage upon 14 working days' prior written notice during the Client's regular business hours and at the Client’s offices ("Audit"). The Audit shall not interfere unreasonably with the Client’s business. The Client shall cooperate as reasonably required in the course of the Audit and will, inter alia, allow inspection of all environments in which the software is used as well as of relevant documents and will provide all necessary information. IXOPAY can mandate an independent auditor with such Audit, provided auditor’s written contractual or statutory confidentiality obligation. In the event the Audit reveals any use or transfer of the software in excess of the agreed usage permission ("Excessive Use"), at the demand of IXOPAY, the Client shall pay to IXOPAY (i) a contractual penalty in the amount of three times of the fees actually owed, regardless of fault, for the entire amount of the Excessive Use and (ii) cover all costs of the Audit. Any further statutory rights of IXOPAY remain unaffected.
8.7 To the extent IXOPAY makes software products of third parties available for the Client, the current licence terms of the manufacturer of such software prevail over this section. IXOPAY shall give no warranty whatsoever for software that is classified as “In The Public Domain” or as “Shareware". The conditions of use specified by the manufacturer of such software or licence systems, if any, shall apply. The same applies to any open source components.
9. Delivery, Acceptance
9.1 Type and date of delivery or electronic provision of the software are set forth in the Order Document. The Client shall bring the software into operation. No acceptance shall take place with software that is to be self-installed by the Client. The five-day notification period set forth in Section 10.9 applies by analogy, starting with the delivery or provision of the defective components. The Client can order further installation and implementation services separately. Such services shall be invoiced by IXOPAY according to the pricing list currently applicable. If IXOPAY shall perform commissioning or implementation of the software under the Order Document, the Client shall issue its acceptance in accordance with Section 9.4.
9.2 Unless agreed otherwise, the software shall be provided to the Client as Software-as-a-Service (SaaS) or in machine-readable form. The source code shall not be released to the Client, and the Client shall have no claim to release thereof. This shall also apply to individual programming.
9.3 IXOPAY shall provide the software in the version that is current on the date of conclusion of the Agreement. The specification of the software shall be exclusively governed by the Order Document.
9.4 If the Deliverable includes commission and/or implementation of software, then an acceptance by the Client must take place. This shall only include the components that are relevant to the delivery and that shall be installed and implemented by IXOPAY. To this end, the Client shall perform an appropriate functional test of the program within a testing phase of five working days after the installation and/or implementation. If any critical Errors (cf. Section 6.6 above) emerge in the testing phase, IXOPAY shall resolve these within a reasonable time and estimate a new acceptance date. If the Client does not notify IXOPAY immediately and in writing of any critical Errors, then the acceptance is deemed successful. If the Client already uses the delivered/provided programs in live operation before the acceptance and fails to give notice within five days from the start of operation about any critical Errors, then the program shall also be deemed accepted.
10. Misrepresentation, Warranties
10.1 Claims to dispute or amend the Agreement for misrepresentations caused by slight negligence are excluded.
10.2 Unless agreed otherwise, IXOPAY provides the Deliverables using commercially reasonable efforts without any obligation to achieve a specific outcome.
10.3 IXOPAY shall not be liable for defects resulting from lack of cooperation, incomplete or erroneous information of the Client. If the Client requests for subsequent changes, the delivery period shall extend accordingly. IXOPAY will report delays in the provision of Deliverables. IXOPAY is entitled to extend binding performance periods for the duration of the delay plus an appropriate starting phase if such delays are not solely attributable to IXOPAY (e.g. late cooperation or delays by parties attributable to Client).
10.4 In any case, the Client itself shall be responsible for selecting Deliverables as well as for the technical operating conditions, and bears the risk that the Deliverables meet its requirements. Therefore, IXOPAY does not warrant any characteristics, whether implied or expected by the Client, nor for satisfactory quality, merchantability or fitness for a particular use.
10.5 In the case of licensing of software or provision of (individual) programming, IXOPAY warrants that the Deliverables fulfil the specifications stipulated in the Order Document on the date of the transfer/provision. The details contained in the catalogs, brochures, product descriptions, advertising messages and the like, as well as other written or oral statements, shall only be decisive and shall only form subject matter of the contract if the Order Document expressly declares them to be contractual content.
10.6 In the case of Deliverables other than set forth immediately above, IXOPAY exclusively warrants that the Deliverables are provided by appropriately qualified employees using commercially reasonable care.
10.7 The burden of proof for defects shall be borne by the Client. The presumption of a lack of conformity pursuant to § 924 ABGB (General Civil Code) shall be excluded.
10.8 For Deliverables which must be accepted by the Client, IXOPAY shall resolve Errors identified during the course of the acceptance process within a reasonable time period. The assertion of warranty claims for defects that are noticed after the acceptance process shall be excluded. Such defects, respectively Errors, shall be handled in their agreed scope, provided that a maintenance and support obligation was agreed.
10.9 The Client shall examine all other Deliverables for defects (§ 377 et seq. UGB). IXOPAY shall be notified in writing of noticed defects immediately, but not later than within five calendar days after the delivery/provision of the Deliverable, including information regarding the type and scope of the defect. Notification of hidden defects shall be made in writing immediately, but not later than within five calendar days after their discovery. The Client shall assist IXOPAY to a reasonable extent in terms of correction of defects (subsequent improvement) and, in particular, shall provide the relevant documents. IXOPAY shall perform the correction at its own option by subsequent improvement, troubleshooting, provision of a work-around, releasing a new program version, or by demonstrating options for avoiding the consequences of the Error. Statutory rights for price reduction and termination of contract, unless for errors which factually cannot or have not been remedied despite attempts to do so, shall be excluded. Warranty claims may be asserted in court not later than within 6 months of the delivery/provision of the respective Deliverable. After the expiry of the statutory warranty period, out-of-court notification of defects cannot be asserted as a defence against payment claims.
10.10 There shall be no warranty for defects and Errors that are attributable to the responsibility of the Client or the Client’s other suppliers and service providers. The exclusion covers, in particular, malfunctions or damage caused by improper operation; subsequent or unauthorised intervention by third parties; modified operating system components, interfaces, and parameters; the use of inappropriate organisational resources and data storage devices; abnormal operating conditions (in particular deviations from the installation and storage conditions); as well as damage in transport.
10.11 If the manufacturers of the components supplied by IXOPAY issue warranties, IXOPAY shall (i) support the Client in the event that the Client asserts a warranty claim or (ii) assert the claim directly for the Client. In such a case, the Client can assert any claim arising from the warranty only in accordance with the manufacturer’s warranty conditions, including the manufacturer- and component-specific characteristics (warranty period, onsite warranty, bring-in warranty, permissibility of component exchange, no transport cost absorption, etc.).
10.12 As regards Deliverables purchased from third parties, any warranty, respectively guarantee, claims of the Client concerning shall be limited to the assignment to the Client of any claim IXOPAY has against the manufacturer respectively its distributors (cf. Section 2.8).
11. Force majeure
11.1 To the extent that, and as long as, obligations cannot be fulfilled on time or properly due to force majeure, such as for example war, terrorism, natural catastrophes, fire, strike, lock-out, embargo, interventions by public authorities, failure of the electricity supply, failure of means of transport, failure of telecommunications networks, respectively data cables, this shall not represent a breach of contract.
12. Limitation of Liability
12.1 IXOPAY is liable towards Client exclusively for direct damages arising from malicious intent or gross negligence. This limitation shall not apply to damages for which no limitation of liability is permitted by applicable law, injury of life, personal harm or injury of health, and claims under the Product Liability Act. Liability for slight negligence is excluded. In any case, the entire liability of IXOPAY is limited to the aggregate amount of all remuneration paid by Client during the 12-month period preceding the event giving rise to such claim(s). The Client must provide evidence that the damage was caused by IXOPAY's malicious intent or gross negligence.
12.2 IXOPAY will not be liable for lost profit, anticipated savings, indirect or consequential damages, or for damages to data processed. The Client confirms to have taken and to maintain all reasonable measures in its scope of responsibility, in particular data backups and ongoing verification of results, in order to recognize any damage events as early as possible and to minimise any adverse consequences.
12.3 All claims of Client for damages that are not accepted in writing by IXOPAY shall become time-barred one year after Client becomes aware of the damage and the liable party or, at the latest, five years after the cause of the claim arose.
12.4 Where IXOPAY provides Deliverables jointly with third parties and warranty and/or liability claims arise against these third parties in this context, IXOPAY shall assign these claims to the Client. In this case, the Client shall refer to these third parties.
12.5 Consulting services are rendered using commercially reasonable efforts. The Client is aware that some Projects are complex and may affect numerous areas that are not conclusively regulated by law and that are subject to a continual flow. IXOPAY never provides consulting on legal matters and thus is not liable for ensuring that the respective Project based upon these consulting services complies with all legal requirements.
13. Remuneration and payment terms
13.1 The fees and any special payment conditions for the provision of Deliverables by IXOPAY shall be defined in the Order Document. All fees shall be understood to be in euros and to include taxes, charges, and public costs.
13.2 Provided that the provision, respectively the delivery, of Deliverables cannot be made digitally, the costs of data storage devices and shipping costs shall be invoiced separately.
13.3 Unless otherwise stipulated in the Order Document, the Deliverables of IXOPAY shall be invoiced according to the actual accrual and the resulting expenditure.
13.4 IXOPAY shall be entitled to adjust the remuneration annually based on the Harmonised Index of Consumer Prices for the Euro area (“HICP”, as made available on the European Central Bank website) or an index replacing and most closely corresponding to it. The index number calculated for the month in which the Agreement is concluded (cf. Section 2.1) shall serve as the reference value.
13.5 IXOPAY shall be entitled at any time to make the provision of Deliverables contingent upon the payment of down payments or upon the supply of other collateral by the Client in a reasonable amount.
13.6 One-time remunerations can be invoiced after the provision of Deliverables and on-going remunerations can be invoiced quarterly in advance. The invoices submitted by IXOPAY, including VAT, shall be payable, free of any deduction or charge, not later than 14 days after receipt thereof. The payment conditions defined for an aggregate order shall apply by analogy to partial invoices. A payment shall be considered successfully made on the date when the relevant amount is at the disposal of IXOPAY.
13.7 In the event of default of Client's payment a default interest rate of 12% shall be invoiced starting from the day when the payment was due. Moreover, IXOPAY shall be entitled to terminate all Agreements concluded with the Client for cause, in the event of Client's default of payment, in whole or in part, of any due fee, upon expiry of a reasonable grace period of at least 14 days.
13.8 In the event of default of payment, IXOPAY shall be entitled to cease, respectively cancel, its Deliverables until the complete settlement of arrears. In such a case, IXOPAY shall also be permitted to make the software unusable for the duration of the default by using appropriate technical equipment, respectively settings. Moreover, IXOPAY is entitled to declare all outstanding amounts on account immediately due and payable, regardless of the applicable payment term(s).
13.9 The Client may exercise against IXOPAY rights of set-off and retention only concerning uncontested counterclaims or counterclaims asserted in and finally adjudicated by the court.
13.10 All charges, duties, and taxes that arise from the conclusion of the contract and/or the utilisation of the services shall be borne by Client.
13.11 Any travel time accrued by employees of IXOPAY shall count as working time. Travel time shall be remunerated in the amount of the agreed hourly rate. Additionally, the travel costs and any accommodation expenses shall be reimbursed by the Client in accordance with the actual expenditure (flight: business class; rail: first class; accommodation: 4-star hotel). The travel and associated costs shall be reimbursed upon submission of receipts (copies).
14. Term of contract and termination notice
14.1 The contract term shall be defined in the respective Order Document.
14.2 Unless expressly held otherwise in the Agreement, IXOPAY may terminate fixed-term Agreements at the end of each calendar year subject to a three-month notice period. Agreements of unlimited duration can be terminated without cause by each contracting party at the end of each month subject to a three-month notice period (receipt). Termination notices must be submitted by means of registered letter.
14.3 Termination without cause is excluded for Agreement concerning one-time Deliverables.
14.4 Fixed-term Agreements shall automatically renew for successive 18-month periods, unless terminated by one of the parties by registered letter subject to a three-month notice period (receipt) prior to the expiry of the then-current contract term defined in the Order Document.
14.5 Each contracting party shall be entitled to terminate the Agreement for cause by means of a registered letter prematurely and without notice.
14.6 Cause shall exist, in particular, if the other party is in material violation of the Agreement and, if capable of remedy, fails to remedy such violation within 14 days after receipt of the terminating Party’s prior written warning specifying the violation. Any violation of the usage authorisation, default of payment, circumstances attributable to the Client that could be detrimental to IXOPAY's reputation and/or Client's breach of Section 17.6 each qualify as 'material violation'.
14.7 In the event of termination for cause that is the fault of the Client, as well as in the event of unjustified termination by the Client, IXOPAY shall have a claim to payment without deduction for all Deliverables until the next following ordinary termination date, respectively to the agreed full sum.
14.8 In case of a termination of the Agreement governing SaaS Deliverables, IXOPAY will revoke any access of the Client on the effective date of the termination and, to the extent legally permissible under data protection laws, delete all data processed on behalf of the Client. IXOPAY is not obliged to return the data to the Client (cf. Section 3.2), and the Client itself shall thus be responsible for backing up the data in time.
14.9 Unjustified termination of the individual contract, such as, in particular, cancellation by the Client, shall only be effective with the written approval of IXOPAY. Should IXOPAY agree to a termination, IXOPAY shall have the right to charge a cancellation fee in the amount of 30% of the not-yet-billed contract value of the entire project in addition to the charge for the Deliverables provided and accrued costs.
14.10 Upon termination of the Agreement, the Client shall immediately return to IXOPAY all records and documentation that were transmitted to it by IXOPAY.
14.11 Upon termination of the Agreement and thereafter, IXOPAY shall support the Client upon request in terms of returning or transferring the services to the Client or to a third party under a separate, written agreement and at the hourly rates currently applicable at IXOPAY.
15. Data protection
15.2 The Data Processing Agreement under Art 28 GDPR (available here) applies and supplements the GTC, if and to the extent IXOPAY processes personal data on behalf of the Client within the scope of the European General Data Protection Regulation (EU/2016/679, GDPR).
Each party must keep all business and trade secrets or other confidential information ("Confidential Information") brought to its knowledge in the context of the Agreement and its performance confidential and protect them against access of third parties, provided that Confidential Information is not generally known or has not been revealed due to a final decision of the public authorities or the court. This obligation shall apply for an unlimited period of time even after the end of the Agreement, for as long as Confidential Informations remain a trade secret. In each case of Client's breach of this confidentiality obligation, Client shall pay the amount of EUR 10,000 to IXOPAY, notwithstanding IXOPAY's right to claim compensation for any damage higher than that.
17. Other rights and duties
17.1 The parties commit to mutual loyalty. However, unless expressly agreed otherwise, IXOPAY shall not be prevented from concluding identical or similar contracts with third parties.
17.2 The Client shall not solicit, either itself or via third parties, employees of IXOPAY that were appointed to provide Deliverables during the term of the Agreement and until one year from its expiry. For each instance of breach, the Client undertakes to pay to IXOPAY a contractual penalty in the amount of six times the gross monthly salary that the respective employee last received from IXOPAY, but as a minimum twelve times the salary owed under the collective labour agreement for an employee of a company providing services in the automatic data processing and information technology sector at the experience level of special duties.
17.3 Within the Order Document, the contracting parties shall appoint qualified and competent employees to make or effect binding decisions on behalf of the respective party.
17.4 The Client grants IXOPAY the worldwide, non-royalty bearing right, unrestricted in content matter and time, to name Client as a reference for marketing purposes of IXOPAY, including inter alia (i) in Websites of IXOPAY GmbH (www.ixopay.com); (ii) in marketing materials, in particular newsletters, information and advertisements (in electronic & postal form), of IXOPAY; and (iii) in social media platforms such as LinkedIn, Facebook, Twitter or substantially similar future platforms.
17.5 IXOPAY may transfer its rights and duties under the Agreement to one or several third parties without the approval of the Client. The Client shall have no right to terminate in the event that the contract is transferred.
17.6 Any rights and obligations under the Agreement shall not be assignable by the Client without prior written consent of IXOPAY neither in connection with transfer of Client's shares or assets, by any restructuring (inter alia any conversion, merger, demerger, consolidation) nor otherwise via singular or universal succession.
18. Jurisdiction, dispute resolution
18.1. The venue for the resolution of disputes between the Parties depends on the Client's registered seat at the time the document instituting the proceedings is lodged.
18.2 Client's Registered Seat is within the EEA: If the Client's registered seat at the time the document instituting the proceedings is lodged is within the European Economic Area (EEA), all disputes or claims arising out of or in connection with this Agreement, including disputes relating to its validity and its provisions shall be subject to the exclusive jurisdiction of the competent court for 1010 Vienna, Austria.
18.3 Client's Registered Seat is outside the EEA: If the Client's registered seat - at the time the document instituting the proceedings is lodged - is outside of the European Economic Area (EEA), all disputes or claims arising out of or in connection with this Agreement including disputes relating to its validity and its provisions shall be finally settled under the Rules of Arbitration (“Vienna Rules”) of the Vienna International Arbitral Centre (VIAC) of the Austrian Federal Economic Chamber.
18.4 The registered seat of the Client shall be determined by the official business register the Client is registered at (e.g., company register, commercial register). If multiple seats of the Client are registered, the seat of the headquarters shall be decisive. If the Client's registered seat is not specified in the applicable business register, the most recent previously registered seat shall be decisive. If no registered seat can be determined based on this Section, it shall be assumed that the Client's seat is outside the EEA.
19. Final provisions, applicable law
19.1 In the event of conflict between the documents in the Agreement, the following order of precedence applies: 1. Any Exhibit(s) to Order Document in its sequence mentioned therein 2. Order Document 3. these GTC. In the event of any inconsistency between the German and the English version of this text, the German version shall prevail.
19.2 Modifications of and supplements to these GTC or an Order Document shall require written form; the same shall apply to a waiver of the written form requirement. Notifications sent via email, letter, or fax shall count as written declarations within the meaning of these GTC.
19.3 Should one or several provisions of this contract be or become invalid or infeasible, whether in full or in part, the validity of the other provisions shall remain unaffected. The invalid or infeasible provision shall be deemed to be replaced by an analogous, valid regulation that most closely reflects the commercial purpose of the invalid or infeasible clause.
19.4 These GTC and Agreements concluded on the basis thereof shall be governed exclusively by the substantive law of the Republic of Austria, to the exclusion of its conflict of law rules and of the United Nations Convention on Contracts for the International Sale of Goods. The same shall apply if Deliverables of IXOPAY are provided abroad.