General Terms and Conditions
(Version dated 01/2021)

1. Scope

• The present Terms and Conditions shall apply to all services rendered by GENOA in the course of a contractual relationship existing between GENOA net works IT-BeratungsGmbH, Austrian company register no. 228843i, or GENOA International GmbH, Austrian company register no. 463311s, each of them with the registered office at Kapuzinerstraße 84e, 4020 Linz (hereinafter individually or jointly referred to as “GENOA”) and the contractual partner (hereinafter referred to as “Customer”).

• GENOA offers to the Customer IT services in the areas of software purchase, software rental, maintenance (both “on premise” and “as a service”), customisation, implementation as well as the provision of IT infrastructure and IT consulting. The scope of the services to be rendered by GENOA and the fee to be paid for them shall be agreed upon in the purchase order which the Customer placed with GENOA.

• These Terms and Conditions shall also apply to new orders or extensions to the existing scope, unless the contrary is agreed upon in writing.

• If GENOA and the Customer conclude a specific service contract, the more specific provisions of such service contract shall take precedence over these Terms and Conditions in the event of a conflict. The remaining provisions of these Terms and Conditions shall remain unaffected.

2. Duties of providing information and cooperating of the Customer

• After the order was placed, the Customer shall be obliged to immediately provide GENOA with any information, documentation and facts which could be important in connection with the fulfilment of the order and to submit all necessary documents. GENOA may assume that information, facts, original contract partners and documents are correct, unless their incorrectness is obvious.

• During the existing contract relationship, the Customer shall be obliged to inform GENOA about all changed or new circumstances which could be important in connection with the execution of the order, immediately after they have become known to them.

• To fulfil the order, the Customer shall, if required and upon GENOA's request, name a person with overall responsibility for the service used and having corresponding authority to act and make decisions who shall be available to GENOA as a contact person within the scope of service provision. If required, GENOA shall also be provided with the name of an IT or information security officer as a contact person who has sufficient knowledge of the Customer’s IT and information security structures.

• Finally, the Customer shall be obligated to grant access and entry authorisations required for the performance of services by GENOA. The Customer must ensure that GENOA is provided, free of charge, with the infrastructure necessary for providing the services, such as, in particular, required technical facilities, electricity, telephone and data transmission lines.

• The Customer shall indemnify and hold GENOA harmless from and against all delays in performance concerning GENOA’s services resulting from a breach of the Customer’s duty to cooperate.

3. Principles of service provision and definitions

• Services will be carried out by GENOA according to the respective state of the art. Fulfilment of other technical regulations or standards when providing the services shall only be of the essence if this is explicitly agreed upon in writing.

• GENOA shall be obliged to maintain confidentiality with regard to all matters entrusted to them and any other facts which become known to them through their activities, confidentiality of which is in the interest of the Customer.

• GENOA shall be entitled to commission employees or third parties with handling the Customer’s affairs, provided that they were demonstrably instructed regarding the confidentiality duty or that corresponding obligations were imposed on them.

• Only insofar as this is necessary for the prosecution of GENOA’s claims (in particular claims for GENOA’s fees) or for the defence against claims against GENOA (in particular claims for damages of the Customer or third parties against GENOA), GENOA shall be exempt from the obligations arising from this contractual provision.

• “Software” shall mean the standard software package defined in the applicable order which is licensed to the Customer for the term of the contract. If third-party software is to be used or implemented, all related costs shall be borne in full by the Customer. All costs associated with the use of this software, such as licence fees, expenses and other costs, shall be reimbursed to GENOA by the Customer within 7 days after invoicing or paid directly to the third-party provider.

• “Customisations” shall mean individually adapted modules for a software program which are to be created by GENOA on behalf of the Customer according to the order and which are subsequently to be leased to them within the scope of the software lease.

4. Scope of services and definitions

• Both the scope and content of the order placed with GENOA as well as the concrete service or consulting matter result from the respective contractual scope of the order, with it being possible to place orders automatically via the portals provided by GENOA and for GENOA to accept them through an automated process. Transmission of an order confirmation or unconditional provision of ordered services shall in each case be considered as acceptance of the offer by

• GENOA shall be entitled and obliged to advise the Customer to the extent this is necessary and expedient for the fulfilment of the order. If the facts change after the contractual relationship ended, GENOA shall not be obliged to inform the Customer about any changes or consequences resulting therefrom.

• Services provided by GENOA in the course of consultancy service shall be rendered in particular by contributing methodological knowledge, using proven methods and tools, analysing existing processes, raising awareness, discussing with the Customer’s employees in charge and both preparing and conducting workshops. GENOA does not provide legal advice.

• It is explicitly stated that GENOA is exclusively liable for providing the services defined in the respective order, but never for a concrete positive project outcome.

• If GENOA is liable for providing (purchase or rental) software, GENOA shall be considered the developer and owner of all rights to software products internally developed. Such rights shall be licensed to the Customer to the extent agreed upon.

• The Customer intends to use this software and to acquire the rights necessary for internal use. The standard software package is to be installed by GENOA on the Customer’s systems or digitally provided in the form of a “software-as-a-service”. GENOA shall develop, program and implement additional customisations for various business-relevant processes of the Customer according to the Customer’s needs (“Customisations”) or implement additional standard modules developed by GENOA (“Standard Modules”) and subsequently provide the software on a rental basis.

• Subsequently, GENOA leases the software to the Customer and/or undertakes to regular maintenance and error correction during the term of the contract (software-as-a-service).

5. Fee

• If no other agreement was made, GENOA shall be entitled to an appropriate fee.

• The amount and the settlement periods for granting software licences or providing services within the scope of a software lease and maintenance agreement result from the scope of services and can be accessed at GENOA’s service portal at any time.

• GENOA provides consultancy services based on a lump sum agreed in advance. Additional services requested by the Customer shall be invoiced according to the actual time spent based on a reasonable hourly rate customary on the market.

• Contractual fees shall be adjusted at the beginning of each calendar year by the increase in the consumer price index (CPI of 2015) during the last 12 months, but at least by 2 %. Temporary suspension of value adjustments does not constitute a waiver by GENOA of such increase; this may also be claimed for the past during the entire term of the contract.

• The contractual services shall generally be provided by GENOA during the opening hours on working days from 8.00 a.m. to 12.00 p.m. (Mon-Fri) and from 1.00 p.m. to 5.00 p.m (Mon-Thu).

If the Customer requests services deviating from this, time surcharges shall be recorded for the respective services provided. Commissioned services outside the specified periods shall be recorded with a factor of 1:2. Services provided by GENOA at their discretion outside core opening hours shall be recorded at a factor of 1:1.

• If software products of third parties are to be used or implemented by GENOA with the Customer, the related costs shall not be included in the fee. All costs associated with the use of these software products, such as licence fees, expenses and other costs, shall be reimbursed to GENOA by the Customer within 7 days after invoicing or paid directly to the third-party provider.

• The Customer acknowledges that an estimate regarding the amount of the expected fee made by GENOA, which is not expressly identified as binding, shall be non-binding and must not be regarded as a binding cost estimate (as defined by sec. 5 para. 2 of the Austrian Consumer Protection Act [KSchG]) because the extent of the services to be rendered by GENOA cannot be reliably assessed in advance due to their nature.

• Any expenses incurred by GENOA in the course of exercising inspection and control rights to which the Customer is entitled shall be remunerated appropriately.

• GENOA shall be entitled, at any time, but in each case on a quarterly basis, to issue fee notes and to demand fee advances.

• If the Customer is an entrepreneur, a properly itemised fee invoice delivered to the Customer shall be deemed approved if and to the extent that the Customer does not object to this in writing within one month from receipt (depending on the date of receipt by GENOA).

• If the Customer is in default of payment regarding the entire fee or parts thereof, they shall pay default interest to GENOA at the statutory rate, but at least 12 % above the applicable base lending rate. Additional legal claims (e.g. under sec. 1333 of the Austrian Civil Code [ABGB]) remain unaffected.

Software rental and maintenance terms and conditions

(Software-as-a-Service).

 

 

6. Scope of services

 

• Software rental and maintenance according to these Terms and Conditions shall mean the provision of the software program to the Customer against payment, the provision of services by GENOA in connection with software maintenance and assistance to those employees of the Customer who work with the software; this only includes the following areas:

1. removal of defects of their own software, unless these defects subject to warranty;
2. provision and implementation of patches and bug fixes for the software;
3. provision and implementation of updates for the software;
4. application assistance, namely the provision of event-related information and instructions concerning software operation and answering the Customer’s questions in connection with the software;

• Services other than those mentioned above shall only be included in the contract between the Parties if this occurs based on a separate order at terms to be agreed by the Parties. This shall include, without limitation: training courses; individual further software developments, unless they serve defect rectification; processing the software for adapting it to new hardware or software; data backup measures; elimination of malware (viruses, Trojans etc.); and measures in connection with unsolicited electronic mail (“fight against spam”).

7. Service level agreement

 

• GENOA shall be obliged to correct all software errors duly notified by the Customer in accordance with these Terms and Conditions. Errors in terms of these Terms and Conditions shall be all software malfunctions which would qualify as defects. Software malfunctions resulting from unauthorised modifications or processing of the software by the Customer shall not be considered errors, the rectification of which is covered by GENOA’s obligation to perform.

• For the purpose of troubleshooting, GENOA shall, depending on the needs, set up a remote maintenance access secured against misuse according to the current state of the art and maintain it during the term of the software maintenance agreement or perform maintenance on their own systems. In each case, GENOA shall ensure that an appropriately staffed, competent team of service specialists is available for the correction of errors. Error notifications shall generally be accepted by GENOA during the maintenance hours on working days from 8.00 a.m. to 12.00 p.m. (Mon-Fri) and from 1.00 p.m. to 5.00 p.m (Mon-Thu).

• If an error occurs, the Customer shall be obliged to immediately submit a concrete, comprehensible and precise error notification to GENOA, which must contain any information enabling GENOA to determine the cause of the error and strategies for error correction. This shall in particular include information about the type of error, the description of the system state when the error occurred, the components affected by the error and the frequency of occurrence of the error. This must be reported to GENOA via the on-line portal provided by GENOA for this service; as far as possible, additional information (screenshots, error logs etc.) must be attached.

• If possible, GENOA will carry out the troubleshooting activities on their own system or by way of remote maintenance. Only if an error cannot be rectified this way at all or within a reasonable time shall GENOA be obliged to rectify such error at the Customer’s

• Should the Customer demand that such error be rectified at their site although it would have been possible to rectify this by telephone, e-mail or remote maintenance, the Customer shall bear the related costs. If GENOA incurs costs in connection with remote or on-site maintenance works due to incorrect error notifications, these costs shall be paid by the Customer regardless of negligence or fault.

• The service and reaction times agreed upon for software maintenance result from the service or performance agreement agreed upon between the client and GENOA for the respective product. The response times guaranteed by GENOA shall commence upon receiving the complete error notification from the Customer.

• Unless otherwise agreed for a specific product in a service or performance agreement, the following definition shall apply to the determination of the service classes.

• Low: The software can be used for its intended purpose without restriction. The error has no or only insignificant influence on the functionality and/or the security of the software. The use of the software remains unrestricted.

• Medium: Software use for its intended purpose is slightly restricted. The error has insignificant influence on the functionality and/or the security of the software and allows further use of the software with only minor restrictions.

• High: Software use for its intended purpose is severely restricted. The error has a significant impact on the functions and/or the security of the software, but it still allows a further use of the software.

• Critical: Software use is not possible or only to an extent which is unreasonably restricted. The error has a severe impact on essential functions and/or the security of the software; the software cannot no longer be used.

• Allocation of errors to the above categories shall be made by mutual agreement. If the Parties are unable to reach an agreement, GENOA shall take measures to rectify the disruption based on the Customer's If, however, it later turns out that this assessment was incorrect, GENOA shall be entitled to compensation for the additional costs incurred as a result of incorrect classification.

8. Maintenance

 

• GENOA shall provide the Customer with all generally released updates, patches and bug fixes and install them on their own or the Customer’s IT systems, depending on the product. GENOA must ensure that new program components are fully compatible with the software program and – in case of on-premise provision – with the Customer’s known system environment, but they shall also be responsible for establishing greatest possible compatibility with the known interfaces used by the Customer. If, due to the IT infrastructure used by the Customer, achieving compatibility is impossible by making reasonable efforts, the Customer shall reimburse to GENOA any additional expenses the latter incurred.

• GENOA shall be completely free to decide whether or not to install the program components or new versions subject to this provision; if the Customer refuses any updates, patches or bug fixes, their claim for correction of those errors which would have been corrected by them shall lapse.

• GENOA shall not be obliged to install and supply upgrades. Upgrade shall mean all module versions providing for considerably enhanced functions or changed architectures.

9. Availability

• GENOA guarantees a certain availability level for the services to be provided. Availability in this sense shall mean the calculated availability level (365 days, 7 × 24) minus downtime.

• Service downtime shall mean the time (basis of 7 × 24) during which a sub-system is affected by service class 1 or 2 disruptions and/or during which access to the server provided for the relevant service is not possible.

• However, a completely error-free or uninterrupted system cannot be guaranteed for mere technical reasons. When calculating contractual availability levels, force majeure events and periods of interrupted usability due to the interval-based maintenance and updating of the software, systems or servers must not be taken into account.

• GENOA guarantees an average availability level of 95 % per (service) performance in the calendar year. When calculating availability, software, system or server downtimes shall be considered individually on an annual average, but they shall not be accumulated.

• In case of a shortfall concerning the above availability levels, the Customer shall only be entitled to an aliquot refund of the contractual fees for the duration of the downtime exceeding the guaranteed availability, unless GENOA can prove that non-compliance with guaranteed availability levels is a consequence of one or more of the below circumstances:

• grossly negligent or intentional acts of the Customer or third parties;
• defects with hardware and/or software components whose maintenance or operation is included in the contract;
• external force, such as water damage, fire or damage caused by electricity and magnetism;
• force majeure.

• The assertion of claims for damages for lack of availability of software, systems or servers beyond the aliquot reimbursement of the contractual fee shall be excluded, unless caused intentionally by GENOA.

10. Blocking

• GENOA shall be entitled to temporarily refuse the provision of services in total or in parts (blocking) if there is reason to believe that the Customer, when using the service, violates any laws or essential contractual obligations, namely those which serve securing operability of a single service or protecting third parties, or that they act in a way which gives GENOA a right to cancel the contract for cause according to these Terms and Conditions.

• A justified suspicion of illegality and/or infringement of rights exists in particular if courts, public authorities and/or other third parties inform GENOA GENOA must immediately notify the Customer of blocking them and the reason for this. The blocking shall be lifted as soon as the suspicion is rebutted and the conditions for it no longer exist.

• GENOA shall also be entitled, in the event of a delay in payment by the Customer, after the Customer failed to react to a single written reminder announcing that they would otherwise be blocked and are granted a grace period of 7 days, to discontinue provision of the contractual services in total or in parts.

• The Customer shall not be entitled to any claims arising from justified blocking of the services.

• The costs associated with the blocking, including those of lifting the blocking, must be reimbursed by the Customer if they are responsible for the blocking. Blocking for which the Customer is responsible shall not release them from the obligation to pay the monthly fees.

 

 

11. Contract term and cancellation

 

• Unless explicitly agreed otherwise for a specific service, the contractual relationship shall be concluded for an indefinite period of time and may be cancelled by either Party at the end of each calendar year subject to a three-month notice period. GENOA's fee claim shall remain unaffected by this.

• If the Customer early cancels the contractual relationship without GENOA having given cause for this, GENOA shall be entitled to claim compensation for the services already commissioned but not yet rendered due to the contract cancellation analogously/according to sec. 1168 of the Austrian Civil Code.

• The Parties’ right to cancel the contractual relationship for cause shall remain unaffected by this provision. Cause shall be deemed to exist in particular if one of the Parties:

1. becomes insolvent or is prevented from opening bankruptcy proceedings after them being rejected due to a lack of funds;
2. violates obligations arising from these Terms and Conditions and, despite a reminder and the setting of a reasonable deadline, continues the conduct in violation of the contract;
3. gives any other reason or breaks the contract in a way which makes it unacceptable for the other Party to continue the contractual relationship;
4. institutes legal proceedings against GENOA, irrespective of whether this is justified or unjustified, provided that no attempt was made to reach an amicable settlement in a personal meeting with the assistance of professional representatives of the Parties.

 

• Upon termination of the software rental and maintenance contract, the Customer shall no longer be entitled to use the software in any form whatsoever and shall be obliged to return any on-premise software provided, including the entire user documentation, at their own expense and/or, if this is not possible, to irretrievably destroy the software, including the user documentation.

12. GENOA's liability and warranty

• GENOA's liability for defective performance or other breaches of contractual obligations shall be limited to the insured sum of GENOA's business liability insurance contract available for the specific case of damage.

• If, in a specific case of damage, no coverage is provided by liability insurance, GENOA's liability shall be limited in each legally permissible case to the amount of the fee paid by the Customer for GENOA’s services in the previous calendar year.

• This respective maximum amount shall include all existing claims against GENOA due to defective performance and/or other violations of contractual obligations, such as, in particular, claims for damages and price reduction. However, this maximum amount shall not include claims of the Customer for reclaiming the fee paid to GENOA, although the Customer may only reclaim the fee agreed upon for the respective service component.

• Regarding all possible situations, GENOA shall only be liable for damages in all cases of wilful intent or gross negligence. In case of slight negligence, GENOA shall only be liable for personal injuries. GENOA shall not be liable for indirect damage, loss of profits, loss of interest, loss of savings, consequential damages and financial loss.

• GENOA accepts no liability for the software being fit for the purpose intended by the Customer, but only for the performance of services in accordance with the contract. GENOA shall not be liable for optical deviations which do not impair the proper use of the software.

• The Customer shall be obliged to prove that GENOA is culpable.

• If GENOA is commissioned, all limitations of liability shall also apply to the benefit of all employees and subcontractors working on behalf of GENOA.

• GENOA shall only be liable towards their customers, not towards third parties. The Customer shall be obliged to expressly inform third parties about this fact who come into contact with GENOA's services due to the Customer's

• Insofar as a defect can be remedied by installing or otherwise making available a new or enhanced software version, the Customer shall be obliged to accept the defect rectification through such new installation, unless they can show that this is contrary to important reasons.

• The Customer shall lose all claims for warranty and damages if they changes or processes the software on their own authority.

• As a result of the risk of data loss and/or software unavailability, the Customer shall be obliged to make or have made back-up copies of the data processed by using the software on a regular basis, but at least on a weekly basis, in order to comply with their duty to mitigate damage. In case of violation of this obligation, GENOA shall not be liable for any resulting damages incurred by the Customer.

• GENOA guarantees that the software is free from third-party protection rights which restrict or exclude the contractual use of the software. The Parties shall immediately notify each other in writing if third parties assert claims against them for the infringement of protection rights. GENOA shall indemnify and hold the Customer harmless from and against all claims of third parties in connection with protection rights in the software during the term of the contract, with GENOA reserving the right to take appropriate defensive measures and to negotiate settlements. The warranty of this paragraph shall not apply if the infringement of third-party protection rights is caused by the Customer behaving in a way which goes beyond the contractual use or by them carrying out modifications of and/or supplements to the software (including the connection with the work results of third parties) at their own responsibility.

13. Limitation/preclusion

Unless a shorter period of limitation or preclusion applies under the law, all claims shall be forfeited if they not asserted by the Customer in court within six months from the time at which the Customer becomes aware of the damage and the person causing the damage or of any other event giving rise to the claim. However, the claims shall become time-barred not later than after a period of three years expired.

14. Ban on enticing away and employing

 

• The Customer shall not be entitled to entice away and/or employ workers or subcontractors of GENOA during the term of the contract and for twelve months thereafter. Employment of workers or sub-contractors with a company affiliated with the Customer under company law shall be deemed equivalent to employment with the Customer (e.g. parent company, subsidiary or sister company).

• The Customer shall pay to GENOA a contractual penalty of € 50,000.00 for each case of violation of this ban on enticing away and employing, regardless of negligence or fault, even if the Customer only made an attempt. In case of contractual penalty payment, GENOA reserves the right to assert a claim for an injunctive relief resulting from this contract and a claim for damages exceeding the contractual penalty.

15. Copyrights and data protection

 

• Documents provided by GENOA digitally or physically, such as, in particular, sample documents, guidelines and policies, source codes, test scripts, program codes and other documents, shall remain GENOA's intellectual property, unless the Parties agreed in these Terms and Conditions or in the respective order. Any use, in particular the transfer, duplication and publication by the Customer, shall require GENOA's express written consent. Unless otherwise agreed in writing, GENOA shall grant the Customer a non-exclusive and non-transferable licence to use the software.

• Therefore, with regard to the provisions of sec. 40c of the Austrian Copyright Act (UrhG), it is expressly agreed that a transfer of the rights to use in the software and/or the software itself without GENOA’s consent is not permitted.

• Insofar as GENOA must provide conceptual planning and/or development services for the Customer in order to prepare an offer, an appropriate fee shall be deemed to be agreed in the event that no order is placed. Non-remuneration of conceptual planning and development services must be agreed in writing.

• GENOA declares to fully comply with all obligations under the Austrian Data Protection Act (DSG) and the GDPR as well as other data protection laws in the course of the service provision and to process any personal data made available to them exclusively for the contractual purpose, provided that no agreement or law to the contrary exists.

 

16. Choice of law and place of jurisdiction

• The Terms and Conditions and the contractual relationship governed by them shall be subject to Austrian substantive law, to the exclusion of the conflict of laws rules.

• For legal disputes arising from or in connection with the contractual relationship governed by these Terms and Conditions, including disputes regarding its validity, the competent court at GENOA's registered office shall be agreed upon as having exclusive jurisdiction, unless this is contrary to mandatory law.

• GENOA shall, however, be entitled to bring claims against the Customer before any other court in Austria or abroad in whose jurisdiction the Customer has their registered office, residence, branch office or assets. For clients who are consumers as defined by the Austrian Consumer Protection Act, the provisions of sec. 14 of the Austrian Consumer Protection Act shall apply.

17. Final provisions

• Amendments of or supplements to these Terms and Conditions must be made in writing in order to be valid, unless the Customer is a consumer within the meaning of the Austrian Consumer Protection Act.

• GENOA may correspond with the Customer in any manner which GENOA deems appropriate.

• Invalidity of single or several provisions of these Terms and Conditions or of the contractual relationship governed by the Terms and Conditions shall not affect the validity of the remaining contract.