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General Terms and Conditions

Stand: 30.09.2024

1. scope of application

1.1 Diese Allgemeinen Geschäftsbedingungen (im Folgenden „AGB“) werden von der Axavia Software GmbH, Hafenstraße 47-51, A-4020 Linz, verwendet (im folgenden „Axavia“). 

1.2 The General Terms and Conditions apply to all deliveries and services of AXAVIA Software GmbH, in particular on the basis of

  • the relevant service and product descriptions, which can be viewed on the website www.axavia365.com and
  • welche auf der Internetseite www.axavia.com eingesehen werden können und 
  • the following terms of use.
 

1.3 In the event of inconsistencies between the German language version and other versions of these Terms and Conditions, the German version shall prevail.

1.4 General terms and conditions of the customer are excluded.

1.5 Die Software richtet sich an Unternehmer und darf nur von diesen genutzt werden (im Folgenden „Kunde“). Sie ist nicht für die Nutzung durch Verbraucher bestimmt.

2 Conclusion of contract and ordering of services

2.1 Deliveries and services relating to axavia365 can be ordered as follows:

  • Der Kunde registriert sich mit seinen Daten auf der Internetseite www.axavia365.com und gibt durch Absenden dieser Daten an Axavia ein Angebot auf Abschluss des Vertrages ab. Axavia bestätigt den Zugang des Angebots unverzüglich per E-Mail.
  • Axavia accepts the customer's offer by activating the customer account. The contract between Axavia and the customer is concluded with this declaration of acceptance.
  • After activation, the customer can order chargeable services (e.g. licenses) via his customer account. The manner in which the order is placed (e.g. by email or telephone) is irrelevant to the offer - the same applies to its acceptance by Axavia. 
 
2.2 Alle weiteren Lieferungen und Leistungen von Axavia bedürfen schriftlicher und firmengemäß gezeichneter Aufträge und Vereinbarungen für eine entsprechende Rechtsverbindlichkeit und verpflichten nur in dem in der Auftragsbestätigung angegebenen Umfang. Vorangegangene Angebote sind unverbindlich und freibleibend. Die in Katalogen, Prospekten und dgl. sowie im Internet enthaltenen Angaben gelten lediglich als Aufforderung zur Angebotslegung durch den Auftraggeber. 

3. subject matter of the contract

3.1 The objects of an order may be

  • Development of organizational concepts, global and detailed analyses
  • Creation of individual programs
  • Delivery of library (standard) programs
  • Erwerb von Nutzungsberechtigungen für Softwareprodukte, unter anderem die Softwareüberlassung auf Zeit (im Folgenden „Software-Miete“)
  • Assistance with commissioning (changeover support)
  • Telephone advice
  • Program maintenance or creation of program carriers
  • Other services
 

3.2 The user documentation of software products shall be provided in German and/or English. Axavia is entitled to provide the customer with the user documentation in electronic form. If this is done, the provision of user documentation in paper form is not owed.

3.3 Unless otherwise agreed, Axavia shall not be obliged to customize the Software or provide consulting services.

3.4 In particular, Axavia's services do not include the provision and maintenance of the network connection or the hardware and software required by the customer. These requirements must be procured by the customer at its own expense and risk.

4 Copyright and use

4.1 The copyright and all other ancillary copyrights to the Software shall belong exclusively to Axavia or the respective author. If third parties are entitled to the rights, Axavia shall have the corresponding exploitation rights. 

4.2 The customer shall receive a license to use the copyrighted works after full payment of the agreed fee. This license includes the right to use the software exclusively for personal use and only for the hardware specified in the contract and only to the extent of the number of licenses purchased for simultaneous use on several workstations. 

4.3 In the case of Software rental, Axavia grants the customer the non-exclusive right to access and use the Software via the Internet during the term of the contract. The aforementioned right of use shall also apply to all upgrades and updates.

4.4 The customer is not permitted to transfer the granted right to third parties or to enable third parties to use the software in any other way.

4.5 The customer undertakes to use the Software exclusively for its own purposes and not to make it accessible to any users other than those created. Use for the purposes of affiliated companies is also not permitted without the express consent of Axavia.

4.6 The customer is only permitted to make copies for archiving and data backup purposes and only on condition that the software does not contain any express prohibition by the author or licensor and that all copyright and proprietary notices are transferred unchanged in these copies.

5. provision of services

5.1 Axavia is free to choose the technical implementation of the service, provided that the implementation complies with the provisions of these Terms and Conditions.

5.2 Axavia is entitled to make changes to the agreed services if this becomes mandatory due to legal and/or regulatory requirements. Axavia shall inform the customer of the changes within a reasonable period of time. Changes to the agreed services will only be made if they do not reduce the value of the services for the customer and the customer does not incur any additional costs as a result. Services that are provided free of charge may be changed or discontinued at any time. The customer is not entitled to any claims for this reason.

5.3 Axavia ist berechtigt, die Software zu aktualisieren und weiterzuentwickeln. Ein Anspruch des Kunden darauf besteht jedoch nicht.

6. availability, service restrictions, security, force majeure

6.1 Due to unforeseeable and uncontrollable simultaneous access to the server by the customer and other contractual parties of Axavia or other circumstances for which Axavia is not responsible, there may be temporary delays, malfunctions and/or interruptions in access to the Software.

6.2 Disruptions may also occur due to technical changes to Axavia's systems, maintenance work, updates or upgrades that are necessary for proper or improved operation.

6.3 Axavia is entitled to carry out regular maintenance work between 01:00 and 05:00 (Central European Time). The customer shall not be notified of such work. Axavia shall give the customer reasonable notice of other maintenance work. During maintenance work, the Software is not available or only available to a limited extent.

6.4 Axavia has no influence whatsoever on whether data transmitted via the Internet can be read by third parties, which transmission speeds are possible on the Internet and which specific routes data takes from Axavia and whether solutions, servers and routers operated by other providers are operational.

6.5 Axavia shall use the technically and economically reasonable means at its disposal to make the Software available as securely as possible. This includes, in particular, protection against access by third parties through encrypted transmission of the data entered and the maintenance of recognized security standards. The customer nevertheless acknowledges that complete protection against damaging data is not possible.

6.6 In cases of force majeure, Axavia shall be released from its obligation to provide services for the duration of the impact. Force majeure is any event beyond the control of the respective contractual partner as well as any unforeseeable event that prevents the respective contractual partner from providing the service in whole or in part.

7 Obligations of the customer

7.1 Der Kunde stellt Axavia alle zur Auftragserfüllung notwendigen Informationen zur Verfügung. 

7.2 The customer undertakes to enter their data completely and correctly when registering, as well as that of the users. In the event of changes, the data must be updated immediately.

7.3 Individual organizational concepts and programs shall be developed in accordance with the type and scope of the information, documents and aids provided in full by the customer and binding on him. This shall also include practical test data and test facilities to a sufficient extent, which the customer shall make available in good time, during normal working hours and at its own expense. If the customer is already working in live operation on the system provided for testing, the customer shall be responsible for securing the live data.

7.4 The customer has informed himself about the essential functional features of the products and bears the risk as to whether these correspond to his wishes and requirements. In particular when ordering library (standard) programs, the customer confirms with the order that he is aware of the scope of performance of the programs ordered.

7.5 The basis for the creation of individual programs are the written service descriptions that Axavia prepares or the customer provides against
cost calculation based on the documents and information made available to it. The customer shall check this service description for accuracy and completeness and provide it with a note of approval. Subsequent changes may lead to separate deadline and price agreements.

7.6 The customer must create the technical conditions to enable Axavia to provide its services as commissioned.

7.7 The customer undertakes to,

  • To follow the relevant instructions, in particular to protect passwords from access by third parties,
  • to use regularly updated anti-virus programs and to check its data prior to transmission using state-of-the-art anti-virus software,
  • to notify Axavia immediately of any recognizable faults and to support Axavia in the fault analysis and rectification of faults by describing any problems that occur in detail, providing Axavia with comprehensive information, making the necessary data available and granting Axavia a reasonable amount of time to rectify the faults,
  • to use the software for its intended purpose.
 
7.8 The customer further undertakes to refrain from doing so,
  • allow third parties to use the access without Axavia's prior written consent,
  • to use access to interfere with and/or disrupt the function and/or integrity of the software, technical equipment, programs and/or data of third parties and/or Axavia against their will or to impair security.
 
7.9 If the customer processes data when using the software and if it is necessary to obtain the consent of data subjects for the processing, the customer undertakes to obtain the consent of data subjects insofar as it is legally or contractually obliged to do so.
 
7.10 Furthermore, the customer shall ensure compliance with and observe all safety, statutory and official regulations relevant to the use or application of the order results and shall indemnify and hold Axavia harmless in this respect. Should it become apparent in the course of the work that the execution of the order in accordance with the service description is actually or legally impossible, Axavia is obliged to notify the customer of this immediately. In this case, Axavia may refuse to execute the order.
 
7.11 If the customer fails to comply with the above obligations, the costs and/or expenses incurred as a result may be charged to the customer if the customer is at fault.
 
7.12 If there is sufficient suspicion that a breach of a material contractual obligation has occurred or if such a breach has already occurred, Axavia shall be entitled to block the use of Software Products in part or in full without notice until proof of the legality of the use by the customer is provided. The authorization to block also exists if this is necessary for security reasons or if the customer account contains harmful content.

8 Delivery date, acceptance, contract duration and termination

8.1 Axavia shall endeavor to meet the agreed deadlines for delivery or performance (completion) as closely as possible.

8.2 In the case of orders comprising several units or programs, Axavia shall be entitled to make partial deliveries or issue partial invoices.

8.3 The targeted performance dates can only be met if the customer provides all necessary work and documents in full, in particular the service description accepted by it, by the dates specified by Axavia and fulfills its obligation to cooperate to the extent required.

8.4 If Axavia is in default with its performance, the customer shall be entitled to declare its withdrawal from the contract by registered letter, setting a reasonable period of grace. Delays in delivery by Axavia due to force majeure or other circumstances beyond Axavia's control do not entitle the customer to withdraw from the contract. Axavia shall notify the customer immediately in the event of such delays in delivery.

8.5 Axavia shall not be responsible for delays in delivery and cost increases caused by incorrect, incomplete or subsequently changed data and information or documents provided and Axavia shall not be in default. Any resulting additional costs shall be borne by the customer.

8.6 Delivery dates and deadlines are binding if they have been agreed in writing as binding between the contracting parties in individual cases; otherwise, all delivery dates or deadlines are non-binding. If non-compliance with a deadline is due to force majeure beyond Axavia's control, the deadline shall be extended by the duration of the obstacle.

8.7 Axavia's deliveries and services shall be deemed fulfilled and accepted upon the operational installation of the systems - otherwise upon shipment ex works of the delivered products.

8.8 Individually created software or program adaptations require program acceptance by the customer for the respective program package concerned no later than four weeks after delivery. This shall be confirmed by the customer in a protocol (check for correctness and completeness based on the service description accepted by Axavia using the test data provided). If the customer allows the period of four weeks to elapse without program acceptance, the delivered software shall be deemed accepted as of the end date of the aforementioned period. 

8.9 Axavia shall make any corrections and additions that prove to be necessary up to the handover/acceptance of the agreed service due to organizational and technical programming reasons for which Axavia is responsible free of charge.

8.10 Cancellations by the customer are only possible with Axavia's written consent. If Axavia agrees to a cancellation, it shall be entitled to charge a cancellation fee of 30% of the unbilled portion of the total order value in addition to the services rendered and costs incurred.

8.11 Im Falle einer Software-Miete beginnt der Vertrag am Tag der Freischaltung. Der Kunde hat nach Freischaltung die Möglichkeit, die gewählte Software 14 Tage kostenlos zu testen. Er kann durch Klicken auf den Button „Kostenpflichtig bestellen“ die Software kostenpflichtig weiternutzen. Dabei kann er insbesondere Lizenzen mit einer Mindestlaufzeit bestellen. Darüber hinaus gelten bei der Software-Miete folgende Bestimmungen:

a. The customer may terminate the contract or the licenses with a notice period of 30 days, but no earlier than the expiry of the minimum term of the licenses. Axavia is entitled to terminate the contract or the licenses with a notice period of 3 months, but at the earliest at the end of the minimum term of the licenses. Unless otherwise agreed, the aforementioned periods shall also apply to partial terminations.

b. If ordered licenses have a minimum term of 12 or 24 months and are not terminated in accordance with the aforementioned periods, the licenses shall be extended by a further 12 months in each case.

c. The customer can order licenses or cancel existing licenses at any time. A new minimum term begins for new licenses. If licenses are terminated, they end at the end of the respective minimum term.

d. The customer can upgrade the software package at any time. An upgrade takes effect immediately, whereby a new term begins for the licenses. A downgrade, on the other hand, cannot be carried out.

e. Termination for good cause shall remain unaffected. Good cause shall be deemed to exist in particular if the other contracting party grossly violates its contractual obligations in breach of contract and despite a written warning and/or the setting of a deadline. Good cause shall be deemed to exist in particular if the customer is in arrears with the payment of fees or significant parts thereof and fails to pay the fee within a reasonable period of time even after a reminder or if an application for the opening of insolvency proceedings against the customer's assets has been filed and/or such insolvency proceedings have been opened.

f. If the contractual relationship is extraordinarily terminated by Axavia due to a culpable breach of duty by the customer, the customer undertakes to compensate Axavia for the damage resulting from the extraordinary termination.

g. Terminations must be made in writing.

h. If the contract is terminated, all licenses shall end with effect from the expiry of the agreed minimum term. The contract ends upon termination of the licenses. If only the licenses are terminated, the contract shall end upon termination of the licenses.

i. Der Zugang zum Kundenkonto wird nach Beendigung des Vertrages gesperrt. Sofern nicht anders vereinbart, werden sämtliche Daten des Kunden 14 Tage nach Beendigung des Vertrages gelöscht, insbesondere auch die der Nutzer sowie die von diesen eingegebenen Daten. Es obliegt dem Kunden, seine Kundendaten rechtzeitig auf sein lokales System zu speichern.

j. Der Kunde ist für die Richtigkeit der hinterlegten Zahlungsdaten im Kundenkonto verantwortlich. Sind diese fehlerhaft und ergibt sich dadurch ein Zahlungsrückstand, wird das Kundenkonto nach einer Schonfrist von 14 Tagen deaktiviert und gelöscht. 

k. Der Ticketsupport darf von Axavia limitiert werden.

9. remuneration, retention of title

9.1 Für die Leistungen von Axavia zahlt der Kunde das vereinbarte Entgelt in Euro. Das Entgelt versteht sich ohne Umsatzsteuer und ab Geschäftssitz bzw. -stelle von Axavia.

9.2 For library (standard) programs, the list prices valid on the day of delivery or completion shall apply. For all other services (organizational consulting, programming, training, conversion support, telephone consulting, etc.), the workload shall be charged at the daily rate valid on the day the service is provided. Deviations from a time expenditure on which the contract price is based and for which Axavia is not responsible shall be invoiced as actually incurred.

9.3 Axavia retains title to the delivered products until the purchase price has been paid in full. In the event of resale by the customer prior to full payment of the purchase price, the customer hereby assigns to Axavia the resulting purchase price claims against the purchaser. If the customer processes/combines the goods subject to retention of title, Axavia shall remain the owner of the goods subject to retention of title. In the case of software rental, the customer has no ownership rights - this is a right of use that is limited to the period specified in the contract. Thereafter, the rights of use shall automatically lapse without any declaration by Axavia being required. 

9.4 Prices per day correspond to 7.5 working hours. Training days from 09:00 to 17:00 (30 minutes in the middle of the day). Additional hours will be charged accordingly.

9.5 The costs for travel, daily and overnight allowances shall be invoiced separately to the customer in accordance with the applicable rates. Travel time shall be considered working time.

9.6 Stability of value of the claim plus ancillary claim is expressly agreed. The prices, in particular for the annual software maintenance, shall be adjusted annually according to the consumer price index 2015 (base year 2015) published monthly by Statistics Austria. The index figure at the time the contract is concluded shall serve as the reference value.

9.7 Unless otherwise agreed, (partial) invoices are due for payment 8 days after receipt of the invoice without any deductions and free of charges. When ordering by direct debit, the payment amount is due for immediate payment by direct debit. In the event of a return debit note (e.g. due to insufficient funds in the account), the customer is obliged to pay the costs incurred by the return debit note.

9.8 In the case of orders comprising several units (e.g. programs and/or training courses, implementation in partial steps), Axavia shall be entitled to issue an invoice after delivery of each individual unit or service.

9.9 Compliance with the agreed payment target by the customer is an essential condition for the fulfillment of the contract by Axavia. Failure to comply with the agreed payment target shall entitle Axavia to suspend ongoing work and withdraw from the contract. Axavia expressly reserves the right to assert any resulting claims for damages.

9.10 In the event of late payment, interest on arrears shall be charged at an annual rate of 9.2 percentage points above the prime rate of the Austrian National Bank. In addition, Axavia shall be entitled to block Software Products in part or in full if the customer is in default of payment of a not insignificant amount of EUR 125 or more. In this case, the blocking shall take place 24 hours after the customer has been informed of the blocking. The block will be lifted after payment of all outstanding claims. In addition, Axavia is entitled to charge any pre-litigation costs arising from the customer's default in payment, in particular reminder fees and legal fees.

9.11 If two installments are not paid on time, Axavia shall be entitled to enforce a default.

9.12 The customer is not entitled to withhold payments for any reason whatsoever.

9.13 The customer agrees to the transmission of invoices in electronic form (e.g. as a PDF document by email). Invoices shall also be made available to the customer electronically in their customer account. 

9.14 Axavia's invoices shall be deemed approved by the customer if they are not objected to within 60 days of the invoice date, stating the reasons. The objection must be made in writing. Timely dispatch of the objection is sufficient to meet the deadline. 

9.15 Fees and other costs incurred with the payment of the fee shall be borne by the customer.

10. warranty

10.1 The warranty period is 6 months and begins with the handover of the goods or acceptance of the service. The customer undertakes to inspect the goods or services for any defects upon receipt or acceptance and to notify Axavia in writing if a defect is found, but no later than 14 days after receipt/acceptance (notice of defects). If the customer discovers at a later point in time that the goods or services are defective, the customer is obliged to inform Axavia immediately upon discovery of the defect and must demonstrate that the defect already existed at the time of delivery. The reversal of the burden of proof in this respect is expressly excluded. If the customer fails to report a defect within 14 days of handover/acceptance or of becoming aware of it, warranty claims and claims for damages due to the defect are excluded .Express referenceis made to the validity and consequences of §§ 377, 378 UGB .

10.2 The warranty is excluded for any functional impairment of the software that is attributable to incorrect operation by the customer or improper environmental conditions on the part of the customer.

10.3 If there are significant defects reported in writing, i.e. if live operation cannot be started or continued, a new acceptance is required after the defects have been rectified.

10.4 In the event of a justified notice of defects, the defects shall be remedied within a reasonable period of time, whereby the Client shall enable the Contractor totake all measures necessary to investigate and remedy the defects .

10.5 All ancillary costs incurred in connection with the rectification of defects (e.g. for installation and removal, transportation, disposal, travel and travel time) shall be borne by the client.

10.6 In the event of defects of title, the customer shall immediately inform Axavia in writing of any third party claims and shall give Axavia exclusive control over the defense and related actions to the extent reasonable for the customer. The customer shall provide Axavia with the necessary support, information and authorization to carry out the aforementioned actions.

10.7 The customer undertakes not to recognize any claims with regard to defects of title without Axavia's prior written consent.

10.8 The rights under mandatory statutory provisions remain unaffected by the above provisions. 

11. liability

11.1 Axavia shall only be liable for damages if it can be proven to have acted with intent or gross negligence and only up to the amount ofthe order value. Any further liability is excluded. In particular, Axavia shall not be liable for indirect damages (in particular consequential damages or loss of profit).

11.2 Furthermore, Axavia assumes no liability for errors, malfunctions or damage caused by improper operation, changed operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, program changes or other interventions by the customer or third parties, abnormal operating conditions (in particular deviations from the installation and storage conditions), or transport damage.

11.3 The Contractor accepts no liability for the topicality, accuracy, completeness and content of the information provided .

11.4 If data backup is not included in Axavia's contractual service catalog, the customer is responsible for regularly backing up its data. In the event of data loss for which Axavia is responsible, Axavia shall therefore only be liable for the costs of duplicating the data from the backup copies to be made by the customer and for restoring the data that would have been lost even if the data had been properly backed up.

11.5 Liability under the Product Liability Act and other mandatory statutory provisions shall remain unaffected by the above provisions.

12. Irrtum / Laesio enormis

The customer is aware of Axavia's services and qualities. Claims arising from reductions of more than half are excluded

13. loyalty, confidentiality, data protection and legal regulations

13.1 The contracting parties undertake to be loyal to each other. They shall refrain from any enticement and employment, including via third parties, of employees of the other contracting party who have worked on the realization of the orders during theterm of the contract and for 12 months after termination of the contract. The contracting party in breach shall be obliged to pay liquidated damages in the amount of one gross annual salary of the employee to the other contracting party

13.2 When entering and retrieving data and information, the customer undertakes to comply with statutory and official regulations, in particular data protection law, criminal law, copyright law and/or other provisions of industrial property law, and not to infringe any third-party rights.

13.3 The customer is solely responsible for compliance with statutory retention obligations (e.g. due to tax regulations) with regard to its customer data.

13.4 The customer shall indemnify Axavia against any liability based on a breach of duty committed by the customer and shall support Axavia to the best of its ability in its legal defense.

13.5 If the infringement of rights alleged against Axavia is based on the fact that data and/or other information made accessible online by the customer or at the instigation of the customer by Axavia infringes copyrights, trademark rights and/or other industrial property rights of third parties, Axavia may demand that the customer pay any damages and costs of reasonable legal defense, unless Axavia is partly at fault.

13.6 Axavia and the customer, their employees and other vicarious agents undertake to treat as confidential all information obtained or to be obtained within the scope of the contractual relationship and designated as confidential or to be regarded as confidential under the circumstances. This obligation shall continue to apply after termination of the contract. The fact that a business relationship exists between the contracting parties does not constitute confidential information. 

13.7 Notwithstanding the above provisions, each contracting party shall be entitled to fulfill its statutory obligations to provide information, including with regard to the information provided to it.

13 Applicable law, place of performance, place of jurisdiction, contract language

13.1 Austrian law shall apply to all legal relationships between the contracting parties. The application of the UN Convention on Contracts for the International Sale of Goods is expressly excluded.

13.2 The place of performance shall be Axavia's registered office. The risk of accidental loss and accidental deterioration shall pass to the customer upon acceptance of the service to be rendered.

13.3 In the event of disputes, the place of jurisdiction shall be the competent court at Axavia's registered office.

13.4 The contract language is exclusively German.

14. reference customer

Für die Dauer des Vertrags ist Axavia berechtigt, den Kunden gegenüber Dritten als „Referenzkunden“ zu benennen sowie Namen und Logo des Kunden auf die eigenen Internetseiten zum Zwecke der Referenzangabe aufzunehmen.

15. final provisions

15.1 Any set-off of claims of the customer against claims of Axavia and any right of retention of the customer are excluded.

15.2 There are no verbal collateral agreements.

15.3 Should individual provisions be invalid, this shall not affect the validity of the remaining provisions. 

15.4 Amendments and/or additions to the contract must be made in writing; this also applies to any waiver of the written form requirement.

 

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