Terms & Conditions of Use for Online Services

Status: June 2020

1 Scope and validity of the contract

1.1 All orders and agreements shall only be legally binding if they are signed by axmann in writing and in accordance with the company name and shall only be binding to the extent specified in the order confirmation. The Customer's terms and conditions of purchase are hereby excluded for the legal transaction in question and the entire business relationship. Offers are always subject to change.

2 Performance and testing

2.1 The subject of an order may be

• Elaboration of organizational concepts
• Global and detailed analyses
• Creation of individual programs
• Delivery of library (standard) programs
• Acquisition of user authorizations for software products
• Acquisition of work usage licenses
• Assistance with commissioning (changeover support)
• Telephone consulting
• Program maintenance
• Creation of program carriers
• Other services

2.2 The development of individual organizational concepts and programs shall be carried out in accordance with the type and scope of the binding information, documents and aids provided in full by the client. This shall also include practical test data as well as test facilities to a sufficient extent, which the client shall make available in good time, during normal working hours and at its own expense. If the client is already working in live operation on the system provided for testing, the responsibility for securing the live data lies with the client.

2.3 The basis for the creation of individual programs is the written service description, which axmann shall prepare or the Customer shall provide against a cost calculation on the basis of the documents and information made available to it. The Customer shall check this service description for correctness and completeness and shall endorse it with its approval. Subsequent requests for changes may lead to separate deadline and price agreements.

2.4 Individually created software or program adaptations require program acceptance by the client for the respective program package concerned no later than four weeks after delivery. This shall be confirmed by the client in a protocol. (Check for correctness and completeness on the basis of the service description accepted by axmann using the test data provided under point 2.2.) If the Customer allows the period of four weeks to elapse without program acceptance, the delivered software shall be deemed to have been accepted as of the end date of the aforementioned period. If the software is used in live operation by the client, the software shall in any case be deemed to have been accepted.

Any defects that arise, i.e. deviations from the service description agreed in writing, shall be reported by the Client to axmann in a sufficiently documented manner, who shall endeavor to remedy any defects as quickly as possible. If there are significant defects reported in writing, i.e. if live operation cannot be started or continued, a new acceptance procedure shall be required once the defects have been rectified.

The client is not entitled to refuse acceptance of software due to minor defects.

2.5 When ordering library (standard) programs, the client confirms knowledge of the scope of performance of the ordered programs with the order.

2.6 Should it become apparent in the course of the work that the execution of the order in accordance with the service description is actually or legally impossible, axmann shall be obliged to notify the Customer of this immediately. If the Customer does not amend the service description or create the conditions that make execution possible, axmann may refuse execution. If the impossibility of execution is the result of a failure on the part of the Customer or a subsequent change to the service description by the Customer, axmann shall be entitled to withdraw from the order. The costs and expenses incurred up to that point for the Contractor's activities as well as any dismantling costs shall be reimbursed by the Customer.

2.7 Program carriers, documentation and service descriptions shall be sent at the expense and risk of the Customer. Any additional training and explanations requested by the client shall be invoiced separately. Insurance shall only be taken out at the request of the Customer.

2.8. axmann points out that a barrier-free design within the meaning of the Federal Act on Equal Opportunities for Persons with Disabilities (Federal Disability Discrimination Act) is not included in the offer unless this has been requested separately/individually by the Client. If the barrier-free design has not been agreed, the client shall be responsible for checking the admissibility of the service with regard to the Federal Disability Discrimination Act. The Customer shall also check the content provided by it for its legal admissibility, in particular under competition, trademark, copyright and administrative law. axmann shall not be liable for the legal admissibility of content in the event of slight negligence or after fulfilling any duty to warn the Customer if this was specified by the Customer.

3 Prices, taxes and fees

3.1 All prices are quoted in euros excluding VAT. They apply only to the present order. The prices quoted are ex axmann's place of business. The costs of program carriers (e.g. CDs, magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes, etc.) and any contract fees shall be invoiced separately.

3.2 For library (standard) programs, the list prices valid on the day of delivery shall apply. For all other services (organizational consulting, programming, training, conversion support, telephone consulting, etc.), the workload shall be charged at the rates valid on the day the service is provided. Deviations from a time expenditure on which the contractual price is based and for which axmann is not responsible shall be invoiced as actually incurred.

3.3 The costs of travel, daily allowances and overnight allowances shall be invoiced separately to the Customer at the applicable rates. Travel time shall be deemed working time.

3.4. axmann shall be entitled to demand advance payments of a reasonable amount for the creation of individual programs and other (individual) services. In the case of standard programs, the advance payment shall be 50% of the order amount if this exceeds EUR 20,000 (net).

4 Delivery date

4.1. axmann shall endeavor to meet the agreed dates of performance (completion) as closely as possible.

4.2 The targeted completion dates can only be met if the Customer provides all necessary work and documents in full by the dates specified by axmann, in particular the specification of services accepted by it pursuant to Section 2.3, and fulfills its obligation to cooperate to the extent required.

Delivery delays and cost increases caused by incorrect, incomplete or subsequently changed details and information or documents provided shall not be axmann's responsibility and cannot lead to axmann's default. Any resulting additional costs shall be borne by the Customer.

4.3 In the case of orders comprising several units or programs, axmann shall be entitled to make partial deliveries or issue partial invoices.

5 Payment

5.1 Unless otherwise agreed, the invoices issued by axmann, including VAT, shall be payable without any deductions and free of charges no later than 20 days from receipt of the invoice. The terms of payment stipulated for the entire order shall apply analogously to partial invoices.

5.2 In the case of orders comprising several units (e.g. programs and/or training courses, implementation in partial steps), axmann shall be entitled to issue an invoice after delivery of each individual unit or service.

5.3 Compliance with the agreed payment dates is an essential condition for axmann's performance of the delivery or fulfillment of the contract. Failure to comply with the agreed payments shall entitle axmann to suspend ongoing work and withdraw from the contract. All associated costs and loss of profit shall be borne by the Customer.

In the event of late payment, interest on arrears shall be charged at the usual bank rate. If two installments of partial payments are not paid on time, axmann shall be entitled to enforce the loss of deadlines and to call in any acceptances handed over.

5.4 The Customer shall not be entitled to withhold payments due to incomplete overall delivery, guarantee or warranty claims or complaints.

6 Copyright and use

6.1. After payment of the agreed fee, axmann shall grant the Customer a non-exclusive, non-transferable, non-sublicensable and perpetual right to use the Software for the hardware specified in the contract and to the extent of the number of licenses acquired for simultaneous use on several workstations, to use all work results created on the basis of the Supplier's contract for its own internal use. All other rights shall remain with axmann.

The cooperation of the Customer in the production of the software shall not result in the acquisition of any rights beyond the use specified in this contract. Any infringement of axmann's copyrights shall give rise to claims for damages, in which case full satisfaction shall be provided.

6.2 The Customer shall be permitted to make copies for archiving and data backup purposes on condition that the software does not contain any express prohibition by the licensor or third parties and that all copyright and proprietary notices are transferred unchanged to these copies.

6.3 Should the disclosure of the interfaces be necessary for the creation of interoperability of the software in question, the Customer shall request this from axmann against payment of costs. If axmann does not comply with this request and decompilation is carried out in accordance with copyright law, the results shall be used exclusively to establish interoperability. Misuse shall result in compensation for damages.

6.4 If the Customer is provided with software whose license holder is a third party (e.g. standard software from Microsoft), the granting of the right of use shall be governed by the license terms of the license holder (manufacturer).

6.5 If the software is equipped with a software protection module (dongle), the customer shall always keep this carefully, not use any circumvention program and report any loss of the dongle to axmann immediately. Malfunctions of the dongle shall be remedied free of charge by replacement within the scope of liability for defects, destruction shall also be remedied by replacement, but against reimbursement of costs in accordance with the price list, loss of the dongle only against purchase of a new copy of the software. If additional dongles are required due to the redistribution of licenses requested by the client (e.g. to different servers), these shall be invoiced to the client as an additional service in accordance with the valid price list. If a dongle is provided, the client shall only use the software in conjunction with this dongle.

7 Software-as-a-Service (SaaS)

7.1 The subject matter of the contract is the use of the Software offered by means of remote access via the Internet ("Software-as-a-Service") and the storage of data by the Customer on servers operated on behalf of axmann ("Hosting"). The Customer's connection to the Internet is not the subject of the SaaS contract, but is the responsibility of the Customer within the scope of the conditions of use. Individual extensions and adjustments to the functionality of the software must be agreed separately and are not part of the SaaS scope of services.

7.2 The SaaS system is accessible 24 hours a day, 7 days a week. This does not include restricted or impossible access due to malfunctioning software or hardware or during maintenance work. Planned maintenance work will be published in advance on the login portal or in the application.

7.3 Operational maintenance of the SaaS services is generally carried out from Monday to Thursday from 8 a.m. to 5 p.m. and Friday from 8 a.m. to 3.30 p.m. on working days. Public holidays are excluded. axmann shall eliminate errors and restore operation within a reasonable period of time as part of this maintenance. Errors in the above sense are documented and reproducible faults which result in the operation of the Software being impossible or only possible to a limited extent, or corruption of data or loss of data processed with or generated by the Software. The customer shall take reasonable measures to facilitate the identification of errors and their causes. In particular, it shall provide the necessary information.

7.4. axmann shall provide the Customer with storage space on a server for the storage of its data. If the storage space is no longer sufficient to store the data, axmann shall notify the Customer in good time and, if further storage space is ordered, shall make it available as soon as possible. If the storage space is exhausted, no further data shall be stored.

7.5 The Customer shall remain the sole owner of its own data and may therefore demand that axmann return some or all of the data at any time, in particular after termination of the contract, without axmann having any right of retention. The data shall be returned at the Customer's discretion either by handing over data carriers or by sending them via a data network. The Customer shall not be entitled to receive the software suitable for use of the data.

8. right of withdrawal

8.1 In the event that an agreed delivery time is exceeded due to axmann's sole fault or unlawful action, the Customer shall be entitled to withdraw from the relevant order by registered letter if the agreed service is not provided in essential parts even within the reasonable grace period and the Customer is not at fault.

8.2 Force majeure, labor disputes, natural disasters and transport blocks as well as other circumstances beyond axmann's control shall release axmann from its obligation to deliver or allow it to reschedule the agreed delivery time.

8.3 Cancellations by the Customer shall only be possible with axmann's written consent. If axmann agrees to a cancellation, it shall be entitled to charge a cancellation fee amounting to 30% of the unbilled order value of the overall project in addition to the services rendered and costs incurred.

9 Warranty, maintenance, modifications

9.1. axmann warrants that the Software fulfills the functions described in the associated documentation, provided that the Software is used on the operating system described in the contract. For SaaS services, axmann warrants the functional and operational readiness of the Software.

9.2.1 The prerequisite for the elimination of errors is that

• the Customer sufficiently describes the error in an error message and this can be determined by axmann;
• the Customer provides axmann with all documents required to rectify the error;
• the Customer or a third party attributable to it has not tampered with the software;
• the software is operated under the intended operating conditions in accordance with the documentation.

In the case of warranty, improvement shall in any case take precedence over price reduction or rescission. In the event of a justified notice of defects, the defects shall be remedied within a reasonable period of time, whereby the Customer shall enable axmann to take all measures necessary to investigate and remedy the defects.

The presumption of defectiveness pursuant to Section 924 ABGB shall be deemed excluded.

9.2.3 Corrections and additions that prove necessary before the agreed service is handed over due to organizational and programming defects for which axmann is responsible shall be carried out by axmann free of charge.

9.3 Costs for assistance, misdiagnosis and error and fault rectification for which the Customer is responsible as well as other corrections, changes and additions shall be carried out by axmann against payment. This shall also apply to the rectification of defects if program changes, additions or other interventions have been made by the Customer itself or by a third party.

9.4 Furthermore, axmann shall not assume any warranty for errors, malfunctions or damage caused by improper operation, changed operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) and transport damage.

9.5 Any warranty by axmann shall be void for programs that are subsequently modified by the Customer's own programmers or third parties.

9.6 If the subject of the order is the modification or supplementation of existing programs, the warranty shall apply to the modification or supplementation. This shall not revive the warranty for the original program.

8.7 Warranty claims shall expire six (6) months after delivery.

10 Liability

10.1. axmann shall only be liable to the Customer for damage for which it is demonstrably responsible in the event of gross negligence. This shall also apply mutatis mutandis to damage attributable to third parties engaged by axmann. In the event of personal injury caused by axmann, axmann shall be liable without limitation.

10.2 Liability for indirect damages - such as loss of profit or costs associated with business interruption, loss of data or third-party claims - is expressly excluded.

10.3 Claims for damages shall become time-barred in accordance with the statutory provisions, but at the latest one year after the damage and the damaging party become known.

10.4 If axmann performs the work with the assistance of third parties and warranty and/or liability claims against these third parties arise in this context, axmann shall assign these claims to the Customer. In this case, the Customer shall give priority to these third parties.

10.5 If data backup is expressly agreed as a service, liability for the loss of data shall not be excluded in deviation from clause 9.2, but shall be limited to a maximum of EUR 10 % of the order amount per claim, however, to a maximum of EUR 15,000. Warranty claims and claims for damages on the part of the client that go beyond those specified in this contract - regardless of the legal grounds - are excluded.

11 Loyalty

The contracting parties undertake to be loyal to each other. They shall refrain from any enticement and employment, including via third parties, of employees of the other contracting party who have worked on the realization of the orders for the duration of the contract and for 12 months after termination of the contract. The contracting party in breach shall be obliged to pay liquidated damages in the amount of one year's salary of the employee.

12 Confidentiality

axmann shall oblige its employees to comply with the provisions of § 6 of the Data Protection Act.

13 Miscellaneous

13.1 Should individual provisions of these General Terms and Conditions be or become invalid, this shall not affect the remaining content of these terms and conditions. The contracting parties shall work together in partnership to find a provision that comes as close as possible to the invalid provisions.

13.2 Agreements and amendments to the contract that deviate from these General Terms and Conditions must be made in writing; this applies in particular to the amendment of this formal requirement. Deviating verbal agreements shall become part of the contract if they are reproduced in the contract.

13.3 Unilateral amendments to these General Terms and Conditions by axmann shall also become part of the contract if they have been notified to the Customer by axmann in writing, the Customer has not expressly objected to them in writing within six weeks of receipt of the notification of amendment and this consequence has been pointed out in the notification of amendment.

14 Final provisions

14.1 Unless otherwise agreed, the statutory provisions applicable between entrepreneurs shall apply exclusively in accordance with Austrian law, even if the order is carried out abroad. Any disputes shall be subject exclusively to the local jurisdiction of the court with subject-matter jurisdiction for axmann's registered office.

Status: June 2020

You ("Service User") have acquired a time-limited, non-transferable and non-exclusive right to use an Online Service of axmann geoinformation ("Service Provider"). They expressly do not acquire ownership of axmann Online Services.

1 Rights and obligations of the Service User

1.1 Usage package

• The Service User is entitled to use axmann Online Services within the scope of the usage packages ordered.
• The Service User shall not be entitled to rent or lease a usage package or parts thereof to third parties. However, the Service User may offer its end customers the use for a fee or without a fee.
• The Service User shall be responsible for complying with the usage packages ordered. If an agreed usage package is exceeded, the Service Provider shall inform the Service User's central contact person by email. Upon receipt of such information, the Service User is obliged to upgrade the affected usage package or to take appropriate measures to ensure compliance with the purchased usage package.
• The fixed usage fee is to be paid by the Service User in advance for the agreed billing period.
• The Service User may upgrade a usage package at any time. In this case, the aliquot surcharge for the higher usage package will be charged for the remaining time until the end of the current billing period.
• A reduction of the usage package by the service user is always possible at the start of a new billing period. Such a change must be notified to the Service Provider in writing at least three months before the end of the current billing period.

1.2 The Service User undertakes to use the axmann Online Services in a system environment (hardware, software, network) that meets the Service Provider's current requirements.

1.3 Examining or analyzing the software by decompiling, disassembling or reverse engineering is not permitted, unless expressly permitted by law.

1.4 Support: The Service User is entitled to make use of support exclusively for axmann Online Services in accordance with the usage package ordered. Support includes:

• Support requests via the rmDATA Support Center. Processing takes place during the support times of the service provider on working days in Austria: Monday to Thursday: 8:00 to 12:00 and 14:00 to 17:00 Friday: 8:00 to 12:00 and 14:00 to 15:30 (for organizational reasons, these times may be changed by the service provider).
• Support can only be used by the Service User and not by the Service User's end customers.
• The Service Provider is entitled to prescribe the form of error messages and queries when using the program and to request the documents and information required to rectify the errors that have occurred (bug report lists, problem data).
• On-site service must be ordered and paid for separately.

1.5 Support or use is excluded under the following ancillary conditions and cannot be utilized:

• Manipulation of a service provided by the Service Provider by the Service User or by third parties without the Service Provider having been informed of this in advance and having given its consent.
• Troubleshooting of program errors caused by faulty or unsuitable software or hardware components that were not supplied or installed by the service provider. (Example: hardware error on the user's end device)
• Maintenance work necessitated by force majeure (accident, water, fire, transportation, etc.) or hardware defects.
• Repair of malfunctions that are necessary due to the use of malicious programs (e.g. virus-infected programs, browser extensions, etc.), unless these malicious programs were supplied by the service provider.

1.6 Communication takes place exclusively via a central contact person of the service user.

1.7 Access data

• The Service User is obliged to prevent unauthorized access by third parties to an axmann Online Service. This means that the disclosure and publication of admin access data etc. is not permitted.
• If the Service User loses the access data for his administrator access (user name and password), the Service User shall be obliged to change the password immediately and inform the Service Provider.

1.8 The Service User is solely responsible for the use of the Service, for the results achieved with it and for the selection of data necessary to achieve these results. In particular, the Service User is responsible for assessing the plausibility and accuracy of the results obtained.
1.9 The Service User shall be liable for ensuring that all persons working in its business (in particular those who make configuration changes via the administration interface) comply with these Terms of Use. If one of these persons violates the obligations, this behavior shall be attributed to the Service User.
1.10 The following applies to data that may be uploaded by the Service User to the axmann Online environment or managed in this environment:

• Access to the data is the sole responsibility of the Service User. The Service User shall receive an account with access data for managing the data in its online area. The service user determines which user may see which data.
• The task of backing up data is the sole responsibility of the Service User.
• The Service User is solely responsible for compliance with the license rights of all data used. The Service User shall fully indemnify and hold the Service Provider harmless in the event of any breaches of license rights to data and any resulting claims or penalties.
• The Service User is responsible for compliance with the GDPR (General Data Protection Regulation) from the perspective of the uploaded or managed data. From an operational perspective, the Service Provider shall ensure the necessary requirements for GDPR-compliant handling (encryption of transmission, authorization systems, etc...).
• At the request of the Service User, the Service Provider shall conclude an order processing agreement within the meaning of the GDPR.

1.11 Termination of the cooperation

• The cooperation can be terminated by the Service User at the end of each billing period subject to a notice period of three months.
• Upon termination of the cooperation, the Service User has the option of backing up uploaded or managed data using the administration functions within the notice period. Upon expiry of the right of use, the Service User's access, including all data, shall be permanently and irrevocably deleted by the Service Provider.

2 Rights and obligations of the service provider

2.1 All rights to the programs and documentation, including copies and subsequent additions, shall remain with the Service Provider.
2.2 If unexpected critical errors are detected that could result in a system shutdown without restarting, data loss or data destruction, the service provider reserves the right to carry out emergency maintenance to an uncertain extent at any time. In addition, the Service Provider may carry out scheduled maintenance work daily between 10 p.m. and 6 a.m., with possible restrictions for the Service User.

2.3 Data protection

• The Service Provider shall take suitable, state-of-the-art precautions to ensure that the Service User's data is not lost and cannot be manipulated or misused by third parties. It should be noted that data transmission over the Internet may be subject to security vulnerabilities. Complete protection of data against access by third parties cannot be guaranteed per se.
• The service provider has a service/admin account for the operation and maintenance of axmann Online Services. The service provider can use this to view the client (including data and users) of the service user. This is used for support and maintenance purposes, among other things.
• The service provider is entitled, among other things, to log the number of accesses and support hours insofar as they are required for checking the usage packages. This data cannot be assigned to specific persons. This data is not merged with other data sources. We reserve the right to check this data retrospectively in order to verify compliance with the usage package and if we become aware of specific indications of unlawful use.
• The service provider is not permitted to use the service user's data (unless technically necessary for operation).
• The Service Provider's employees comply with the legally prescribed data protection guidelines.

2.4 The Service Provider reserves the right to delete data and content that is immoral, contains pornographic or national socialist content, violates minorities or international law with immediate effect and without exception. Furthermore, in such cases the Service Provider reserves the right to terminate the cooperation with the Service User with immediate effect.
2.5 The fact that the Service User uploads data to an online service of the Service Provider and these are stored there does not lead to any changes in the rights of use or ownership of the data.
2.6 In the event of a system failure, the Service Provider shall make every effort to restore the system to its state prior to the failure as quickly as possible. If this is not possible, the state at the time of the last backup shall be restored. A backup is made at least once every 24 hours.

2.7 Usage package/right

• Compliance with the ordered usage package is monitored by the service provider with the help of suitable measures, e.g. by logging the number of accesses and support hours. The service provider is not permitted to make any further use of this data.
• In the event of a breach of the ordered usage package by the service user, the service provider has the right to block the service user. Prior to such a block, at least 2 written notifications (email) must be sent to the Service User's central contact person. The block will only be lifted by the service provider when the conditions are met again. In the event of a continuous block of at least two months, the service provider is entitled to delete the service user's client, including all data, completely, without data backup and irrevocably.
• The usage fee is indexed on the basis of the Austrian Consumer Price Index (CPI). The starting point is the CPI 2010 index figure published by Statistics Austria in September of each year. The Service Provider is also entitled to make changes to the price model at any time. Any changes to the usage fee will only be taken into account when the invoice for the new billing period is issued.
• The right of use shall expire in the event of default of payment. The service provider is entitled to temporarily block the service user after one reminder and a communicated payment deadline of 14 days until payment is received. The reminder shall be sent in writing to the central contact person named by the Service User. In the event of a continuous block of at least two months, the Service Provider shall be entitled to delete the Service User's client, including all data, completely, without data backup and irrevocably.

2.8 The Service Provider has the right to make changes to the Service provided (e.g. new functions, modified functions, supported data formats, removal of functions). The changes shall be made available to the Service User as release notes.
2.9 The Service Provider shall only use infrastructure from cloud providers that are based in an EU member state and operate the infrastructure in such a country.

2.10 Warranty and notification of defects

• The Service Provider points out that it is not possible to produce computer software that is completely error-free according to the state of the art. The Service Provider therefore does not guarantee that the Services will run without interruption or error and that the functions contained in the software will be executable in all combinations selected by the Service User and will meet the requirements.
• If a defect occurs, the defect and its manifestation must be described in such detail in a written notification of defects that it is possible to reproduce and check the defect (e.g. presentation of the error messages) and to exclude an operating error (e.g. specification of the work steps).
• If the notice of defects is justified, the defects shall be rectified at the expense of the Service Provider within a reasonable period of time, whereby the Service User shall enable the Service Provider to take all measures necessary for the investigation and rectification of defects.
• Notices of defects are only valid if they concern reproducible defects and are documented in writing. The Service Provider accepts no liability for errors, faults or damage caused by improper operation, installation, contamination with computer viruses, use of unsuitable organizational resources and data carriers, use in a non-approved system environment (client hardware and software) or abnormal operating conditions. Reimbursement of the costs of remedying defects by third parties (substitute performance) is excluded.
• Liability
• The service provider shall be liable for damages to the extent that intent or gross negligence can be proven within the scope of the statutory provisions. Liability for slight negligence is excluded. In any case, the amount of compensation shall be limited to the usage fee for the first year of use.
• Compensation for consequential damages, financial losses, loss of profit, unrealized savings, loss of interest and damages arising from third-party claims, including from the title of product liability against the Service Provider, is excluded in any case, to the extent permitted by law.
• The Service Provider shall hold the Service User liable for all damages resulting from a breach of these Terms of Use by the Service User.

2.11 Termination of cooperation

• The Service Provider is entitled to terminate the cooperation prematurely with immediate effect for good cause if the Service User breaches its obligations.
• The Service Provider may terminate an axmann Online Service without giving reasons. The Service User shall be informed at least 1 month before the service is discontinued. Any service fees paid shall be refunded by the Service Provider to the Service User for the period during which the Service is no longer available.
• The Service Provider has no obligations whatsoever after termination of the cooperation.