General Terms and Conditions

1. Definitions

1.1 Business Days

Monday to Friday (9:00 AM to 5:00 PM CET) excluding public holidays in Austria and December 24 and 31.

1.2 Documentation

The technical and/or functional documentation belonging to the contractual XINITY Software, provided to the Client together with the software.

1.3 Third-Party Software

All standard software products and associated documentation and content developed for or by companies other than XINITY; all new versions (releases, updates, patches, corrections) and all complete or partial copies thereof.

1.4 IP Rights

All patents and other rights in inventions, copyrights, trademarks, designs and other intellectual property rights and all related exploitation and usage rights.

1.5 Modification

Developments that (i) alter the delivered source code or metadata, or (ii) use XINITY Software but do not add new and independent functionality, only shape, improve or alter the existing functionality. Customizing and parameterization do not constitute a modification.

1.6 Maintenance

The agreed XINITY support for the XINITY Software.

1.7 XINITY Software

All standard software products and documentation developed for or by XINITY; new versions (releases, updates, patches, corrections) and complete or partial copies thereof.

1.8 Software Agreement

A specific contract between XINITY and the Client regarding the provision and maintenance of XINITY Software and/or Third-Party Software that refers to these GTC.

1.9 Affiliated Companies

Companies that are affiliated within the meaning of § 15 AktG.

1.10 Contractual Subject Matter

Made available to the Client in execution of the Software Agreement.

1.11 Confidential Information

All information that XINITY or the Client protects against unrestricted disclosure to third parties, or that is to be regarded as confidential due to the circumstances of disclosure or its content, including the Software Agreement itself. This includes in particular information about research and development, product offerings, pricing and availability.

2. Delivery, Usage Rights, IP Rights

2.1 Delivery and Subject Matter

XINITY delivers the contractual software according to the Software Agreement and the product description. Unless otherwise agreed, the Client receives a copy of the software no later than 10 days after conclusion of the Software Agreement.

Delivery is made either by physical shipment on data carriers or by Electronic Delivery via SSH through secured access (WireGuard/VPN) provided by the Client.

2.2 Rights of XINITY, Client Permissions

All rights to the XINITY Software - in particular copyright and other IP rights - belong exclusively to XINITY. The Client has only non-exclusive permissions.

Usage rights are limited to the contractual software within the contractually agreed scope. The Client receives usage rights for an unlimited period under the Purchase contract type, and for the agreed duration under the Rental contract type.

The Client may only use the software to process its own internal applications and those of its Affiliated Companies. Data center operations for third parties or training of external persons is not permitted.

All data processing devices on which the software is copied must be located in the Client's premises or in their immediate possession. Outsourcing requires a written agreement with XINITY.

The Client may perform data backup in accordance with technical standards and create the necessary backup copies.

Before decompilation, the Client must request XINITY in writing with a reasonable deadline to provide the necessary information. Only after the deadline expires without result is the Client entitled to decompile within the limits of § 40e UrhG.

2.3 Modifications/Add-Ons

Unless otherwise agreed, the Client is not entitled to create, use or make available to third parties any modifications or add-ons, unless permitted by mandatory law or expressly under these GTC.

XINITY is neither responsible for disruptions caused by modifications or add-ons nor obligated to remedy them.

Modifications and add-ons may only be used together with the contractual software and in accordance with the contractually granted usage rights.

2.4 Transfer to Third Parties

Software acquired under the Purchase contract type may only be transferred to a third party as a complete unit. Temporary or partial transfer is prohibited. In case of permitted transfer, the Client must completely and permanently cease usage and notify XINITY in writing immediately.

2.5 Temporary Access Restriction

XINITY is entitled to restrict remote access and request access to system and access logs in case of sufficient suspicion of code theft or serious breaches.

2.6 Minor Updates / Patches

XINITY is obligated to deploy minor updates/patches either remotely or make them available for installation. The Client must be informed at least 3 business days before any downtime.

2.7 Major Releases

Major releases constitute new versions and are not part of existing agreements. XINITY will notify the Client of availability and offer acquisition or licensing.

3. Extension

Any usage beyond the contractual agreements must be reported to XINITY in writing in advance and requires a separate contract for the additional scope of use.

4. Remuneration, Payment, Taxes

4.1 Remuneration

The Client pays XINITY remuneration as per the Software Agreement for provision and maintenance. Prices include transport and packaging. No cash discount is granted.

XINITY may require advance payments or full prepayment where no prior business relationship exists or where there are legitimate doubts about punctual payment.

Payments are due 14 calendar days after the invoice date. Upon maturity, XINITY may charge default interest at the statutory rate.

XINITY may adjust remuneration for maintenance and software rental with two months' notice in accordance with the CPI, but not exceeding 5% p.a.

4.2 Taxes

All prices are exclusive of the applicable statutory value added tax.

5. End of Usage Rights

Upon termination of usage rights, the Client must immediately cease usage. Within one month, all copies must be irretrievably destroyed or handed over to XINITY. The Client must confirm compliance in writing.

6. Cooperation, Inspection and Complaint Obligations

6.1 Functionalities

The Client must inform itself about the essential functional features and technical requirements and bears the risk of suitability for its purposes.

6.2 IT Systems

The Client is responsible for the operating environment of the software, in accordance with XINITY's specifications where applicable.

6.3 Cooperation

The Client cooperates in the fulfillment of orders to the necessary extent free of charge and grants XINITY access to the software and IT systems.

6.4 Contact Person

The Client designates a contact person in writing who is able to make or promptly bring about the required decisions.

6.5 Testing

The Client tests the software for defects according to its professional knowledge before commencing operational use.

6.6 Safeguards

The Client takes appropriate precautions in case the software does not work properly. XINITY expressly points out that the Client is solely responsible for regular data backups.

6.7 Inspection and Complaint Obligation

The Client assumes an inspection and complaint obligation pursuant to §§ 377f UGB. Complaints must be made in writing with an exact description of the problem.

7. Defects of Quality and Title, Performance Disruptions

7.1 Warranty

XINITY warrants the agreed quality of the software and that no third-party rights prevent the transfer of the agreed usage permissions.

7.2 Rectification

For defects of quality, XINITY warrants by providing a new, defect-free software version or by remedying the defect. The Client must accept a new software version if the contractual scope of functions is maintained.

7.3 Secondary Warranty Remedies

If rectification definitively fails after multiple attempts, the Client may withdraw from the contract upon setting a final reasonable deadline. Reduction of remuneration is excluded.

7.4 Warranty Period

The warranty period is one year and begins with the delivery of the software.

7.6 Expense Reimbursement

If XINITY provides services for error diagnosis or resolution without being obligated to do so, XINITY may charge a fee. This applies in particular if a reported defect is demonstrably not attributable to XINITY.

8. Liability

8.1 Limitation of Liability

(a) In case of intent and gross negligence: XINITY is fully liable.

(b) In case of slight negligence: XINITY is liable for foreseeable, typical damages, but limited to EUR 50,000 per damage event and a total of EUR 100,000 per calendar year.

(c) Liability for indirect damages (in particular lost profits, consequential damages) is excluded in cases of slight negligence.

8.3 Limitation Period

A limitation period of one year applies to all claims for damages.

8.4 Personal Injury

The limitations of liability do not apply to liability for personal injury and liability under the Product Liability Act.

9. Confidentiality, Data Protection, Contractual Penalty

9.1 Use of Confidential Information

The parties undertake to treat all confidential information of the other party with confidentiality for an unlimited period. Disclosure to third parties is only permitted insofar as necessary for contract performance.

9.3 Confidential Contract Contents

Neither party may use the other's name without prior written consent in advertising activities. XINITY is permitted to mention the Client in anonymized reference customer lists. Case studies and testimonials require individual prior approval.

9.4 Data Protection

XINITY does not perform commissioned data processing in the course of contract fulfillment.

9.5 Contractual Penalty

In case of breaches of confidentiality or IP rights, an immediately due contractual penalty of EUR 25,000 per breach is agreed; for continuing breaches, an additional EUR 2,500 per commenced day of continuation.

10. Additional Provisions for Rental and Maintenance

10.1 Joint Nature

In rental agreements, maintenance is part of the service offering and can only be terminated together with the rental agreement.

10.2 Scope of Maintenance

XINITY provides maintenance services as agreed in the Software Agreement's maintenance model.

10.6 Term

Each maintenance or rental agreement runs initially until the end of the full calendar year following the contract start (minimum term). It then automatically renews for one additional calendar year at a time.

10.7 Termination

Maintenance agreements may be terminated in writing with three months' notice to the end of a calendar year. Rental agreements may be terminated with three months' notice to the end of a calendar quarter.

10.8 Extraordinary Termination

XINITY reserves the right to terminate for cause, in particular in case of repeated or gross violation of material contractual obligations.

11. Final Provisions

11.1 Deadlines

Deadlines set by the Client must be at least ten business days.

11.3 Export Control

The XINITY Software is subject to the export control laws of various countries, in particular the European Union and Austria.

11.4 Governing Law and Jurisdiction

Austrian law applies exclusively, excluding the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction is the competent court for 1010 Vienna.

11.5 Written Form

Contract amendments, terminations, reminders and deadlines require written form. This also applies to the waiver of the written form requirement.

11.6 No Applicability of Other GTC

Conflicting or supplementary terms of the Client do not become part of the contract.