1. Object of the Agreement
1.1 The object of the Agreement is the granting of a right to use the software “Testify” (“Software”) by the Provider for use by the Customer via the Internet within the scope of a Software as a Service Agreement (SaaS Agreement).
2. Provision of Software
2.1 For the duration of this Agreement, the Provider shall provide the Customer with the Software in the respective current version in accordance with the provisions set out in Annex ./1 against payment for use via the Internet regarding the following areas of application (Use Cases).
For this purpose, the Provider shall set up the Software on a data server (Clause 2.3) that is accessible to the Customer via (i) a web browser installed on the Customer’s mobile or stationary terminal device and/or via (ii) the Provider’s app installed on the Customer’s mobile or stationary terminal device (“Testify WebApp”), provided that the Internet connection is up and running. 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 Software is made available to the Customer by the Provider for use via the data server utilised by the Provider for the operation of the software (Clause 2.3. ) at the interface agreed in Annex ./1 (“Transfer Point”).
2.3 The Provider uses the cloud infrastructure “Azure Cloud” (“Data Server”) operated by Microsoft Corporation, One Microsoft Way, Redmond, WA 98052-6399, USA (“Microsoft”) to run the Software.
2.4 The Customer’s access to the internet is not the object of this contractual relationship. The Customer is solely responsible for the functionality of its internet access including the transmission paths as well as its own mobile and stationary terminal devices. The Provider expressly does not owe the establishment and maintenance of 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 intensity of use defined in Annex ./1 . If the agreed intensity of use is exceeded by the Customer, the Provider is 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 is to be connected to the Transfer Point via an internet connection to be set up by the Customer in accordance with the details set out in Annex ./1.
2.6 The regulations 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 utilise it in the version currently offered by the Provider. The Customer has no right to be provided with a newer version of the Software.
3.2 The Customer agrees that insignificant changes to the Software, i.e. changes that do not affect 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 if possible.
The Provider will inform the Customer in advance about Updates that are carried out by the Provider within the framework of the release cycle via the manual available online (see Clause 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 terminal devices it intends to 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 trouble-free use of the service. In this case, the Customer will 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 terminal devices, routers, data communication devices, etc., meeting the minimum technical requirements for the use of the Software version currently offered and on 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 terminal device from which it legitimately wishes to access the Software. Furthermore, it shall only use hardware and software for the use of the Provider’s services that meets the minimum requirements specified in Annex ./1 . The Customer is responsible for the configuration of its IT system. The provision of these minimum requirements as well as the telecommunication 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 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 of the services provided may arise which are beyond the Provider’s control. This includes in particular actions of third parties who do not act on behalf of the Provider, technical conditions of the internet that cannot be influenced by the Provider as well as force majeure. The hardware and software used by the Customer as well as its technical infrastructure can also have an influence on the services of the Provider.
4.5 The Customer undertakes not to place 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 prevent unauthorized access by third parties to the protected areas of the Software by taking appropriate precautions.
4.7 Notwithstanding the Provider’s obligation to maintain back up data, the Customer itself is responsible for entering and maintaining its data and information required to use the Software.
4.8 The Customer is obligated to check (i) its own data and information as well as (ii) automatically transmitted data via the Customer’s interfaces for viruses or other harmful components before transferring them to the Data Server and to use state-of-the-art virus protection programs for this purpose.
4.9 The Customer receives the necessary access data consisting of user name and password from the Provider in order to enable it to access and use the Software. User name and password may only be communicated by the Customer to the users authorised by it and are otherwise to 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, to the extent necessary to provide the services owed under this Agreement. It is also entitled to keep the data in a backup computer centre. In order to eliminate malfunctions, the Provider is also entitled to make changes to the structure of the data or the data format.
5.2 The Customer is entitled to make the Software available for use by third parties within the scope of the areas of application (use cases) agreed in accordance with Clause 2.1, provided that is has informed the Provider of this in writing in advance. Third parties are not those who are vicarious agents of the Customer and use the services free of charge, such as employees of the Customer.
6.1 The Customer shall pay the Provider for the granting of the right to use the Software the remuneration according to the Provider’s proposal prices valid at the time of conclusion of the contract in accordance with Annex ./3.
6.2 Unless otherwise agreed, the remuneration is payable on the 1st day of each month. Payment is due in advance by bank transfer to the bank account specified by the Provider on the first working day of the agreed billing period (annually). All contractually agreed remunerations are exclusive of the statutory value added tax.
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 point out to the Customer the significance of its conduct when submitting the invoice.
7. Changes in the Remuneration
7.1 The agreed remuneration is subject to an annual value adjustment by the Provider in accordance with the monthly Consumer Price Index 2020 (CPI) published by Statistics Austria. The index figure published for the month in which the Agreement is concluded is agreed as the starting point. The remuneration changes to the extent that the CPI in the adjustment month has changed from the starting point. If the applicable index figure has not yet been published at the time when the value adjustment is carried out, the last published index figure shall be used and any difference from the applicable index figure shall be subsequently offset. The index figure used to carry out the value adjustment is the starting point for the value adjustment in the following year. If the CPI is no longer published, the index that follows the CPI or corresponds most closely to it shall be used as the basis for the value adjustment. If it is no longer possible to use an index calculation at all, the value-adjusted remuneration shall be calculated according to the same principles as were last used for the index calculation.
7.2 The Provider may adjust the remunerations to be paid by the Customer on the basis of this Agreement at its reasonable discretion according to the development of the costs that are decisive for the price calculation. A price increase may be considered and a price reduction shall be made if, for example, the costs for the procurement of hardware and software as well as energy, the use of communication networks or the wage costs increase or decrease or other changes in the economic or legal framework conditions lead to a changed cost situation. In exercising its reasonable discretion, the Provider shall select the respective points in time of a price change in such a way that cost reductions are not taken into account according to standards that are less favourable for the Customer than the ones for cost increases, i.e. cost reductions shall have at least the same effect on prices as cost increases. The Provider will inform the Customer in writing about changes to the valid prices of the proposal (Annex ./3) no later than four weeks before the changes come into effect.
8. Term of the Agreement
8.1 The contractual relationship shall come into force upon both Parties signing the agreement.
8.2 The Agreement is concluded for a term of one year (“Period of Use”) and is always automatically extended by a further year if the Agreement is not terminated in writing by one party at least three months before the end of the respective Period of Use.
8.3 The right of each Party to terminate the Agreement without notice for good cause remains unaffected. In particular, the Provider is entitled to terminate the Agreement without notice and to immediately block access to the Software 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 does not comply with such provision within a grace period of seven calendar days despite a request to remedy the breach of contract.
8.4 The date of receipt by the other Party shall be decisive for the timeliness of the notice of termination.
8.5 The notice of termination must be given in writing.
9. Warranty and Liability
9.1 Any warranty is excluded for disturbances, malfunctions or damages which are due to improper operation, improper use, unsuitable hardware and data carriers, system-related software components (e.g. operating systems and operating system parts, databases, server software, drivers, etc.), viruses of any kind or unsuitable operating and transport conditions of or by the Customer.
9.2 Any liability or warranty of the Provider for the correctness of the content of the data entered into the Software by the Customer is excluded.
9.3 The Provider warrants the transmission of the Customer’s data into the Software only if and to the extent that the connectivity of the data communication lines is ensured by the Customer without interruption.
9.4 Within the scope of the present warranty obligations, the Provider only grants a warranty for a specific function and/or for the data security of the cloud infrastructure operated by Microsoft to the extent that it is mandatorily stipulated in Microsoft’s currently applicable terms and conditions regarding 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 damage caused intentionally or through blatantly gross negligence. The liability of the Provider for slight or simple gross negligence is excluded. The Parties agree to exclude the application of Section 1298 of the Austrian Civil Code (ABGB) (reversal of the burden of proof). The Customer has to prove the fault (blatantantly gross negligence or intent) of the Provider. When creating the Software, the contractor owes the care customary in the industry. In determining whether the contractor is at fault, it must be taken into account that its technically impossible to create software without errors.
9.6 The limitations of liability stipulated in Clause 9.5 do not apply to damages resulting from injury to the life, body or health of persons as well as in the event that mandatory legal regulations and essential contractual obligations to the contrary apply.
9.7 The Provider shall not be 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 assumes no liability for the loss of data files.
9.8 The Provider shall not be liable for damages in an amount that exceeds the amount of the remuneration collected by the Provider for the services provided to the Customer within the three months preceding the event on which the claim is based.
- The Provider will provide a manual for the use of the Software available online.
11. Help Desk for Reporting Incidents
Depending on a valid service level agreement, 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 to the Provider any malfunctions that occur during the use of the Provider’s services owed under this agreement.
12. Data Storage
12.1 The Customer has the possibility to store data on the Data Server set up for him by the Provider, which it can access in connection with the use of the Software provided and within the scope of the current use of the Software. The Provider shall not be subject to any custody or safekeeping 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 (DPA), the General Data Protection Regulation (DS-GVO) and any other statutory confidentiality obligations.
13.2 The Provider processes the necessary personal data for the purpose of performing its contractual obligations. The detailed data protection information (data protection declaration) in accordance with Article 13 ff DS-GVO is available on the Provider’s homepage at https://www.testify.io/en/privacy-policy/.
13.3 If the Customer processes personal data within the scope of this contractual relationship it bears the responsibility for compliance with the provisions of data protection law.
14. Data Export, Data Deletion
14.1 The Customer can retrieve a copy of the data stored by it on the Data Server, which can be retrieved via the export functions available through 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 not retrievable via the export functions available through the Software from the Provider once per calendar quarter free of charge. If the customer requests the copy of this data more than once in a calendar quarter, he shall pay remuneration for this.
14.2 The Provider will delete customer data held by the Provider 30 days after termination of the Agreement unless the Customer (i) notifies the Provider within such period that the data retrieved by the Provider via data export is unreadable or incomplete or (ii) requests a copy of the data not retrievable via the export functions available through the Software within such period of time. Failure by the Customer to give notice under (i) and (ii) above shall be deemed to be the Customer’s consent to the deletion of the data. The Provider shall specifically point out to the Customer the significance of its conduct in the context of the termination of the agreement.
15. Data Backup
The Provider will perform a backup of the Customer’s data on the Data Server once per calendar day. The data will be stored for at least 30 calendar days. The data backup shall be carried out in the manner described in Annex ./1 .
16. Amendment of the Terms of the Agreement
Unless otherwise specifically provided, the Provider shall have the right to modify or amend these contractual terms as set forth below. The Provider shall inform the Customer of the changes or amendments no later than four weeks before they take effect. If the Customer does not agree with the changes or amendments to the contractual conditions, it can object to the changes within one week before the date on which the changes or amendments are intended to take effect. The objection must be made in writing. If the Customer does not object, the changes or amendments to the contractual conditions shall be deemed to have been approved by it. The Provider shall specifically point out to the Customer the significance of its conduct when notifying the Customer of the changes or amendments to the contractual terms.
17. Final Provisions
17.1 This Agreement shall be governed by Austrian substantive law, to the exclusion of the Austrian provisions on recourse and further reference.
17.2 For all disputes arising from or in connection with this Agreement, the exclusive jurisdiction of the court having subject-matter jurisdiction for the (respective current) registered office of Testify GmbH, A-4020 Linz, Austria, is agreed.
17.3 There are no ancillary agreements to this Agreement. All notifications and legal declarations, in particular amendments and supplements to this Agreement, must be made in writing. The same applies to a waiver of this formal requirement.
17.4 Should individual provisions of this Agreement be invalid or contain loopholes, this shall not affect the validity of the remaining provisions. In place of the invalid provision, the valid provision shall be deemed to have been agreed which most closely corresponds to the meaning and purpose of the invalid provision. In the event of loopholes, the provision that corresponds to what would have been agreed in accordance with the meaning and purpose of this Agreement if the matter had been considered from the outset shall be deemed to have been agreed.
17.5 The contracting parties have concluded the Agreement in a German and an English language version. The German version alone is authoritative for the legal effects between the Parties.