Testify terms and conditions
Testify GmbH
Peter-Behrens-Platz 7, Stiege D, 3rd floor4020 Linz
FN 474598p
Software-as-a-service contract
1. subject matter of the contract
1.1 The subject matter of the contract is the granting of a right to use the “Testify” software (“Software”) by the Provider for use by the Customer via the Internet as part of a Software-as-a-Service (SaaS) agreement.
2. software licensing
2.1 For the duration of this Agreement, the Provider shall provide the Customer with the current version of the Software in accordance with the provisions of the selected license package for use via the Internet against payment
For this purpose, the Provider shall set up the Software on a data server (Section 2.3), which can be accessed by the Customer via (i) a web browser installed on a mobile or stationary end device of the Customer and/or via (ii) the Provider’s app installed on a mobile or stationary end device of the Customer (“Testify WebApp”) if an Internet connection is maintained. Use of the software without an internet connection (“offline use”) depends on the respective intensity of use by the customer and is only possible to a limited extent under the conditions stated in the system specification.
2.2 The Software is made available to the Customer via the data server used by the Provider for the operation of the Software (https://cloud.testify.io or custom domain) for use.
2.3 The Provider uses the cloud infrastructure “Azure Cloud” (“data server”) operated by Microsoft Ireland Operations Limited, 70 Sir John Rogerson’s Quay Dublin 2 Ireland, to operate the Software.
2.4 The customer’s access to the Internet is not the subject of this contractual relationship. The customer bears sole responsibility for the functionality of its Internet access, including the transmission paths and its own mobile and stationary end devices. The provider is expressly not responsible for establishing and maintaining the Internet connection between the customer’s IT system and the transfer point.
2.5 The customer may access the software up to a maximum usage intensity defined in the license package. If the agreed usage intensity is exceeded by the customer, the provider is entitled to carry out subsequent billing. In this case, the customer will be notified proactively by the provider in order to coordinate the next steps.
2.6 The regulations on the availability of the software and the services to be provided by the Provider are set out in detail in the system specification.
3. changes to the software
3.1 The Provider is entitled to make technical or other changes to the software and to use the current version offered by the Provider.
3.2 The Customer agrees that minor changes to the software, i.e. changes that maintain the core functions of the software (“updates”), may be made by the Provider at any time. The Provider shall inform the Customer of this in advance via release notes.
The Provider shall inform the Customer in advance of updates carried out by the Provider as part of the release cycle via the online manual (see point 10) and via release notes.
4 Obligations of the customer
4.1 The customer is responsible for establishing a data connection between the mobile and stationary end devices intended for use and the transfer point defined by the Provider. The Provider is entitled to redefine the transfer point if this is necessary to enable the customer to make smooth use of the service. In this case, the customer shall establish a connection to the newly defined transfer point.
4.2 The contractual use of the Provider’s services is dependent on the hardware and software used by the Customer, including mobile and stationary end devices, routers, data communication devices, etc., meeting the minimum technical requirements for the use of the currently offered software version and the users authorized by the Customer to use the software being familiar with the operation of the software.
4.3 The Customer shall install the software provided to it by the Provider and subsequent updates on each mobile or stationary end device from which it wishes to access the software with authorization. Otherwise, the Customer shall only use hardware and software to use the Provider’s services that meets the minimum requirements specified in the system specification. The customer is responsible for configuring his IT system. The provision of these minimum requirements and the telecommunications services from or to the transfer point are the sole responsibility of the Customer and are not part of the Provider’s service obligation. The Provider assumes no responsibility for ensuring that the software is compatible with the hardware and software used by the Customer.
4.4 The Provider draws the Customer’s attention to the fact that restrictions and impairments to the services provided may arise that are beyond the Provider’s control. This includes, in particular, actions by third parties not acting on behalf of the Provider, technical conditions of the Internet beyond the Provider’s control and force majeure. The hardware and software used by the Customer and its technical infrastructure may also have an influence on the Provider’s services.
4.5 The customer undertakes not to store any illegal content on the data server that violates the law, official requirements or the rights of third parties.
4.6 The customer is obliged to take suitable precautions to prevent unauthorized access by third parties to the protected areas of the software.
4.7 Notwithstanding the Provider’s obligation to back up data, the Customer is responsible for entering and maintaining the data and information required to use the Software.
4.8 The customer is obliged to check (i) data and information entered by the customer and (ii) data transmitted automatically via the customer’s interfaces for viruses or other harmful components prior to transmission to the data server and to use state-of-the-art virus protection programs for this purpose.
4.9 The Customer shall receive from the Provider the access data required to access the use of the software, consisting of a user name and password. The user name and password may only be disclosed by the Customer to the users authorized by the Customer and must otherwise be kept secret and not made accessible to third parties. The access data must be changed in accordance with the provisions of the system specification.
5. rights of the customer
5.1 The Customer grants the Provider the right to reproduce the data stored by the Customer on the Provider’s data server, insofar as this is necessary for the provision of the services owed under this contract. He is also entitled to store the data in a backup data center.
5.2 The customer is entitled to make the software available to third parties for use within the scope of the license packages agreed in accordance with point 2.1.
6. remuneration
6.1 The Customer shall pay the Provider for the granting of the right to use the software at the price of the license packages from the Provider’s offer valid at the time of conclusion of the contract.
6.2 Unless otherwise agreed, the fee is due for payment in advance on the first working day of the agreed billing period (annually) by bank transfer to the bank account specified by the Provider. All contractually agreed fees are subject to statutory VAT.
6.3 Objections to the billing of the services provided by the Provider must be raised by the customer in writing to the office indicated on the invoice within a period of eight weeks after receipt of the invoice. After expiry of the aforementioned period, the invoice shall be deemed to have been approved by the customer. The Provider shall specifically draw the customer’s attention to the significance of his behavior when sending the invoice.
7. changes to the remuneration
7.1 All prices quoted are index-linked and are adjusted annually at the beginning of each new billing period to the same percentage extent as the underlying consumer price index changes. The consumer price index 2020 published by Statistics Austria or the index replacing it, if applicable, is used to calculate the value adjustment. The permanent starting point for the annual value adjustment is the index figure for the month in which this contract was concluded. The fee adjustment is made annually at the beginning of the respective billing period and is offset against this. The last available monthly index figure of the underlying CPI is used to calculate the new fee amount. The publicly accessible value adjustment calculator of Statistics Austria can be used to calculate the adjusted charges. Fees are adjusted both upwards and downwards in line with the change in the index.
8. contract term
8.1 The contractual relationship shall enter into force upon signature by both parties.
8.2 The contract is concluded for a limited period of one year (“usage period”) and is always automatically extended by a further year if the contract is not terminated in writing by one of the parties at least three months before the end of the respective usage period.
8.3 The right of each party to terminate the contract without notice for good cause remains unaffected. The Provider shall be entitled to terminate the contract without notice and to immediately block access to the software in particular if the Customer fails to make due payments despite a reminder and a grace period of at least seven calendar days or if the Customer breaches a material contractual provision and fails to remedy the breach of contract within a grace period of seven calendar days despite being requested to do so.
8.4 Receipt by the other party shall be decisive for the timeliness of the notice of termination.
8.5 Notice of termination must be given in writing. Digital signature methods correspond to the written form.
9 Warranty and liability
9.1 Any warranty is excluded for malfunctions, faults or damage attributable to improper operation, improper use, unsuitable hardware and data carriers, system-related software components (e.g. operating systems and operating system components, databases, server software, drivers, etc.), viruses of any kind or unsuitable operating and transport conditions on the part of the customer.
9.2 Any liability or warranty on the part of the Provider for the accuracy of the data entered into the software by the Customer is excluded.
9.3 The Provider warrants the transfer of the Customer’s data to the Software only if and to the extent that the Customer has ensured undisturbed connectivity of the data communication lines.
9.4 Within the scope of the warranty obligations in question, the Provider shall only provide a warranty for a specific function and/or for the data security of the cloud infrastructure operated by Microsoft to the extent that this is stipulated as mandatory in the currently applicable Microsoft terms and conditions for the use of the Azure cloud (available at https://www.microsoft.com/de-de/licensing/product-licensing/products.aspx).
9.5 The Provider is only liable for damages caused intentionally or through gross negligence. The Provider’s liability for slight negligence is excluded. The application of § 1298 ABGB (reversal of the burden of proof) is excluded by mutual agreement between the parties. The Customer must prove the fault (gross negligence or intent) of the Provider. In the creation of the software, the Contractor shall exercise the care customary in the industry.
9.6 The limitations of liability set out in clause 9.5 shall not apply to damages resulting from injury to life, limb or health of persons or in the event that mandatory statutory provisions and material contractual obligations to the contrary apply.
9.7 The Provider is not liable for loss of profit, loss of savings, damages from operational disruptions or other indirect damages and/or consequential damages in connection with the software. The Provider accepts no liability for the loss of data if this is due to improper operation in connection with the offline mode.
9.8 The Provider accepts no liability for damages in an amount that exceeds the amount of the remuneration received by the Provider for the services provided to the Customer within the last three months prior to the event on which the claim is based.
10th manual
10.1 The Provider shall provide an online manual for the use of the Software.
11. help desk for reporting malfunctions
11.1 Depending on the selected license package, the Provider shall provide the Customer with a help desk for reporting incidents. The sole purpose of the help desk is to enable the Customer to report faults to the Provider that occur when using the Provider’s services owed under this contract.
12. data storage
12.1 As part of the ongoing use of the software, the Customer has the option of storing data on the client set up for it by the Provider, which it can access in connection with the use of the software provided. The Provider shall not be subject to any safekeeping or custody obligations with regard to the data transmitted and processed by the Customer. The customer is solely responsible for observing the statutory retention periods.
13. processing of personal data
13.1 The Provider is obliged to comply with the provisions of the Data Protection Act (DSG), the General Data Protection Regulation (GDPR) and any other statutory confidentiality obligations.
13.2 The Provider processes the personal data required for the purpose of fulfilling the contract. The detailed data protection information (data protection declaration) in accordance with Art. 13 ff GDPR can be found on the Provider’s homepage at https://testify.io/datenschutzbestimmungen available.
13.3 If the customer processes personal data within the scope of this contractual relationship, it shall be responsible for compliance with data protection regulations. A data processing agreement (DPA) may be concluded as part of the business relationship
14. data export, data deletion
14.1 The Customer has the option of retrieving a copy of the data stored by it on the data server, which can be retrieved using the export functions available in the software, at any time in the data format in which the data was stored on the data server (“data export”). Individual requirements for data exports can be provided in consultation with the provider for a fee.
14.2 The Provider shall delete the Customer Data in its possession 30 days after termination of the contract, unless the Customer (i) notifies the Provider within this period that the data retrieved by it by means of data export is unreadable or incomplete or (ii) requests a copy of the data that cannot be retrieved via the export functions available in the Software within this period. Failure to notify the customer in accordance with the above points (i) and (ii) shall be deemed to constitute the customer’s consent to the deletion of the data.
15. data backup
The Provider shall back up the customer’s data once per calendar day to a backup data center (geo-redundant). The data shall be stored for at least 30 calendar days. The data backup is carried out in the manner described in the system specification.
16. changes to the contractual conditions
Unless otherwise specifically regulated, the Provider is entitled to amend or supplement these contractual terms and conditions as described below. The Provider shall inform the Customer of the amendments or additions at least four weeks before they come into effect. If the Customer does not agree with the amendments or additions to the contractual terms and conditions, it may object to the amendments with a notice period of one week to the date on which the amendments or additions are intended to take effect or terminate the contract. The objection must be made in writing. If the customer does not object, the amendments or additions to the contractual terms and conditions shall be deemed to have been approved by the customer.
17 Final provisions
17.1 This contract shall be governed by Austrian substantive law, to the exclusion of the Austrian provisions on recourse and onward referral.
17.2 For all disputes arising out of or in connection with this contract, the exclusive jurisdiction of the court having subject-matter jurisdiction for the (current) registered office of Testify GmbH, A-4020 Linz, Austria, is agreed.
17.3 There are no ancillary agreements to this contract. All notifications and legal declarations, in particular amendments and supplements to this contract, must be made in writing. The same shall also apply to any waiver of this formal requirement.
17.4 Should individual provisions of this contract be invalid or contain loopholes, this shall not affect the validity of the remaining provisions. In place of the invalid provision, the valid provision that most closely corresponds to the meaning and purpose of the invalid provision shall be deemed to have been agreed. In the event of loopholes, the provision that corresponds to what would have been agreed in accordance with the meaning and purpose of this contract if the matter had been considered from the outset shall be deemed to have been agreed.