Testify terms and conditions
Testify GmbH
Peter-Behrens-Platz 10
4020 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 contract, the Provider shall provide the Customer with the current version of the Software in accordance with the provisions in Annex ./1 for use against payment via the Internet for the defined area of application (use case):
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 specified in Annex ./1. The source code of the software is expressly not handed over to the customer.
2.2 The Provider shall make the Software available to the Customer for use via the data server used by the Provider for the operation of the Software (Section 2.3) at the interface (“Transfer Point”) agreed in Annex ./1.
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 Annex ./1. If the agreed intensity of use is exceeded by the Customer, the Provider shall be entitled to reduce the intensity of use; this may result in the Customer only being able to use the Software to a limited extent. The Customer shall be connected to the transfer point via an Internet connection to be set up by the Customer in accordance with the information in Annex ./1.
2.6 The provisions regarding the availability of the software and the services to be provided by the Provider are set out in detail in Annex ./1.
3. changes to the software
3.1 The Provider is entitled to make technical or other changes to the software and to use the latest version offered by the Provider. The Customer shall not be entitled to use a newer version of the software.
3.2 The Customer agrees that insignificant changes to the software, i.e. changes in which the core functions of the software are retained (“updates”), may be made by the Provider at any time. The Provider shall inform the Customer of this in advance if possible.
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 that meets the minimum requirements specified in Annex ./1 to use the Provider’s services. The customer is responsible for configuring its 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 Annex ./1.
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. The Provider is also entitled to store the data in a backup data center. The Provider is also entitled to make changes to the structure of the data or the data format in order to eliminate faults.
5.2 The customer is entitled to make the software available to third parties for use within the scope of the areas of application (use cases) agreed in accordance with point 2.1, if he has informed the Provider of this in writing in advance. A third party is not a person who is a vicarious agent of the Customer and uses the services free of charge, such as employees of the Customer.
6. remuneration
6.1 The Customer shall pay the Provider for the granting of the right to use the Software the fee resulting from the prices of the Provider’s offer valid at the time of conclusion of the contract in accordance with Annex ./3.
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 draw the Customer’s attention to the significance of his behavior when sending the invoice.
7. changes to the remuneration
7.1 The agreed fee is subject to an annual value adjustment by the Provider in accordance with the monthly Consumer Price Index 2020 (CPI) published by Statistics Austria or an index replacing it. The index figure published for the month in which the contract is concluded is agreed as the starting point. The fee shall change to the extent that the CPI has changed in the month of adjustment compared to the starting basis. If the applicable index figure has not yet been published at the time of the implementation of the value adjustment, the most recently published index figure shall be used and any difference to the applicable index figure shall be subsequently offset. The index figure used for value protection is the starting point for the next year’s value protection. If the CPI is no longer published, the index that follows the CPI or most closely corresponds to it shall be used as the basis for value protection. If it is no longer possible to use an index calculation at all, the value-guaranteed remuneration shall be calculated according to the same principles as were last used for the index calculation.
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.
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 shall only be liable for damages caused intentionally or by gross negligence. The Provider’s liability for slight or simply gross 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 (blatant gross negligence or intent) of the Provider. When creating the software, the Contractor shall exercise the care customary in the industry. When determining whether the Contractor is at fault, it must be taken into account that software cannot be created without technical errors.
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, damage from operational disruptions or other indirect damage and/or consequential damage in connection with the software. The Provider accepts no liability for the loss of data.
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
The Provider shall provide the Customer with a help desk for reporting incidents, subject to a valid service level agreement. 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 data server 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 et seq. of the GDPR can be found on the Provider’s homepage at https://testify.io/datenschutzbestimmungen.
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.
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 via 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”). The Customer may request a copy of the Customer’s data that cannot be retrieved via the export functions available in the Software from the Provider once per calendar quarter free of charge. If the Customer requests a copy of this data more than once in a calendar quarter, the Customer must pay a fee for this.
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. The Customer’s failure to notify the Provider in accordance with points (i) and (ii) above shall be deemed to constitute the Customer’s consent to the deletion of the data. The Provider shall specifically draw the Customer’s attention to the significance of its behavior in the context of the termination of the contract.
15. data backup
The provider will back up the customer’s data on the data server once per calendar day. The data shall be stored for at least 30 calendar days. The data backup shall be carried out in the manner described in Annex ./1.
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. 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. The Provider shall draw the Customer’s attention to the intended significance of his conduct when notifying him of the amendments or additions to the contractual terms and conditions.
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.
17.5 The contracting parties have concluded the contract in a German and an English version. Only the German version shall be authoritative for the legal effects between the parties.