Terms of Service

1) General

The business relationship regarding the software between S2data GmbH, FN 538970d, Am Eisernen Tor 5, 8010 Graz, Austria, hereinafter referred to as „S2“ and the contracting party shall be governed exclusively by the following General Terms and Conditions (hereinafter referred to as „GTC“) in the version in force at the time of the order’s placement. These GTC apply to all present and future services, even if they have not been expressly agreed upon again.

Any contractual terms or conditions of the contracting party contradicting these GTC shall neither be valid nor applicable.

2) Subject Matter of the Contract

Subject matter of the contract is the optimization software MasterScheduler, in its latest version. The scope of functions corresponds to the respective current service description and the respective current price list.

The software is installed by S2 on the infrastructure of Hetzner Online GmbH and set up for the contracting party. Information on availability, backups, etc. will be agreed separately with the contracting party in detail.

Alternatively, the contracting party has the option to purchase a license of the software and install the software on its own server. S2 will then install and configure the software on the server(s) of the contracting party. The software may be customized according to the requirements of the contracting party.

The contracting party will be informed of the latest system requirements before the software is installed. The contracting party can implement the necessary system requirements on its server itself or commission S2 to do so. If the software has been installed on the contracting party’s server, the contracting party is responsible for data security and fail-safe operation as well as backup, etc.

Services rendered after the installation of the software are to be paid by the contracting party according to time and effort.

Support, maintenance and troubleshooting of the software beyond the scope of the warranty shall be provided to the contracting party within the scope of a separate support and maintenance contract to be agreed upon.

3) Contract Period

The following applies to license, maintenance, support and hosting contracts:

The contractual relationship begins with the signing of the contract and is concluded for an indefinite period.

The contractual relationship may be terminated by either party by giving three months‘ notice to the last day of the month. In addition, the contractual relationship may be terminated at any time for good cause. Notice of termination must be given in writing.

4) Remuneration

Services are charged according to the license, maintenance and support fees shown in the price list and the hourly rate or according to the respective offer. The remuneration for such services is due immediately upon receipt of the invoice. In the event of default in payment, the interest rates applicable to business transactions (Unternehmerzinsen) shall be agreed.

Value protection (Wertsicherung) is agreed for all costs (license fees, maintenance and support fees, hourly rates, etc.). The consumer price index 2020 published by Statistics Austria or the index replacing it shall serve as the basis for value protection. The index figure published for the month of the conclusion of the contract shall be the starting point for the calculation of the value guarantee.

The costs are recalculated after the index figure for the month of January of a year is available. The costs shall change to the extent that the said index changes compared to the initial basis.

If the increase in costs due to the value protection is not claimed over a longer period of time, this shall not constitute a conclusive waiver of the value protection.

5) Warranty

S2 warrants that all services are free of defects and usable according to the state of the art at the time of performance without satisfying all conceivable conditions of use. The decision on the type and manner of technical implementation is exclusively at the discretion of S2, any other possibilities of implementation do not constitute a defect.

The warranty excludes errors, malfunctions or damage resulting from improper handling, faulty installation, changed operating system components, interfaces or parameters, use of unsuitable organizational tools and data carriers, abnormal operating conditions and changes made by the contracting party itself or third parties.

The warranty period begins with the completion of the installation by S2 and the functional test by the contracting party. The contracting party is granted a period of two weeks for the functional test.

The warranty period is twelve months. Defects must be reported immediately.

The contracting party is obliged to support S2 free of charge in the elimination of defects and in particular to provide S2 with all necessary documents, data, etc., which are required for the analysis and elimination of defects. The contracting party shall provide S2 with access data to its system for this purpose.

If the contracting party violates its obligation to give notice of defects or its obligation to cooperate in the elimination of defects, the contracting party shall forfeit its claims against S2.

6) Damages

S2 assumes no liability for direct or indirect damages of a material or non-material nature resulting from technical problems, server failure, data loss, transmission errors, data insecurity or other reasons, unless liability is mandatory due to intent or gross negligence. Liability for slight negligence is expressly excluded. S2 is not liable for lost profits and consequential damages. The contracting party has to provide evidence of the actual damage incurred. The obligation to pay compensation does not include the cost of recovering lost data. The claim for damages is limited to 25% of the order volume (net, without maintenance and license fees); maximum € 50,000.00.

7) Rights of Use

S2 grants the contracting party the right to use the software for an unlimited period of time, against payment, non-exclusive, non-transferable, non-sublicensable.

Beyond the purposes of this contract, the contracting party is not entitled to use the software as its own data, to reproduce, download, process or make it accessible to third parties outside the agreed circle of users. If the software is made accessible to third parties by the contracting party, the contracting party shall be liable to S2, in addition to the third party, for the damage caused thereby, in particular for the lost license fees and the lost profit.

S2 shall be entitled to all copyrights and exploitation rights, in particular the rights of distribution, reproduction and processing of the services rendered (programs, documentation, designs, etc.). S2 shall be entitled to use results and data of separately commissioned and provided services for all purposes and to exploit them in its own name after payment of the agreed fee.

If the software is discontinued in its entirety, S2 shall make the entire source code available to the contracting party. The copyrights and exploitation rights, in particular the distribution and reproduction rights remain with S2. However, the contracting party is entitled to further develop the application and the source code at its own expense for its own use.

8) Privacy

S2 undertakes to process data and data processing results exclusively within the scope of the written orders of the contracting party.

S2 declares in a legally binding manner that all necessary measures are taken to ensure the security of the processing in accordance with Art 32 GDPR.

S2 shall take the technical and organizational measures to ensure that the contracting party is able to comply with the rights of the data subject under Chapter III of the GDPR (information, access, correction and deletion, data portability, objection, as well as automated decision-making in individual cases) at any time within the statutory time limits and shall provide the contracting party with all information necessary for this purpose. If a corresponding request is addressed to S2 and the latter indicates that the applicant mistakenly considers it to be the contracting party of the data application operated by it, S2 shall immediately forward the request to the contracting party and inform the applicant thereof.

S2 supports the contracting party in complying with the obligations set out in Art 32 to 36 GDPR (data security measures, notifications of personal data breaches to the supervisory authority, notification of the person affected by a personal data breach, data protection impact assessment, prior consultation).

With regard to the processing of the data provided by the contracting party, the contracting party is granted the right to inspect and control the data processing facilities at any time, including third parties commissioned by the contracting party. S2 undertakes to provide the contracting party with the information necessary to monitor compliance with the obligations set out in this contract.

Data processing activities are carried out exclusively within the EU or the EEA.

S2 is entitled to involve sub-processors and is not required to inform the contracting party thereof. S2 shall conclude the necessary agreements with the sub-processor in accordance with Art. 28 (4) GDPR. In doing so, it needs to be ensured that the sub-processor assumes the same obligations that are imposed on S2 on the basis of this contract. If the sub-processor does not comply with its data protection obligations, S2 shall be liable to the contracting party for compliance with the obligations of the sub-processor.

9) Naming as Reference

S2 is entitled to name the contracting party as a reference. S2 is entitled to state the company of the contracting party, the URL of the website, the description of the project and the savings potential as well as to use a logo to be provided by the contracting party.

10) Final Provisions

For delivery and payment, the place of performance shall be the registered office of S2, even if the handover takes place at another location as agreed. Graz is agreed as the place of jurisdiction.

Austrian law, with the exception of the Act on Private International Law (IPRG) and the UN Convention on Contracts for the International Sale of Goods, is agreed as the applicable law. The contractual language is English.

All agreements between S2 and the contracting party must be made in writing, this also applies to any deviation from the written form. No oral collateral agreements have been made.

Should any of the above provisions be invalid or void or be declared non-binding, this shall not affect the remaining provisions. In this case, both parties undertake to replace the invalid provision with a valid agreement whose content comes closest to the economic purpose of the invalid provisions.

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