1. General provisions
1.1. Grassfish Marketing Technologies GmbH (hereinafter referred to as: Grassfish) provides services in the field of information processing. In particular Grassfish creates and provides computer programs, including documentation (hereinafter referred to as: software), offers service and advisory services in the field of information technology (hereinafter referred to as: services) and enables access to their databases (hereinafter referred to as: ASP services). Grassfish provides the services exclusively on the basis of the following terms and conditions.
1.2. Any conditions of the customer that differ from these shall not apply, even if Grassfish does not expressly contradict them.
1.3. Any verbal additional agreements, supplements or contractual amendments require the written confirmation of Grassfish for them to be effective. This also applies to any deviation from this written form clause.
2. Conclusion of contract
2.1. All offers made by Grassfish are subject to confirmation and are without obligation, unless expressly agreed otherwise in writing.
2.2. The contract shall come into effect upon written confirmation of the order by Grassfish, upon delivery of the software or upon the commencement of execution of the order by Grassfish.
3. Considerations of the software supplied by Grassfish
3.1. The properties, usage and retrieval conditions of the software, databases and other considerations follow from the respective description or user documentation. The presence of the consideration features described therein is not guaranteed by Grassfish. The acceptance of a guarantee shall take place exclusively through the creation of a separate guarantee declaration issued in writing.
3.2. Deadlines and time limits are without obligation, unless expressly agreed otherwise in writing.
3.3. Grassfish is entitled to part performance.
3.4. Grassfish creates and provides customers with software in accordance with the provisions set out in point 6. and point 8. Grassfish accords the customer the use of ASP services in accordance with the provisions set out in point 7. and point 8.
3.5. The subject-matter of the service consideration is the agreed activity, not the result, unless expressly agreed otherwise in writing.
4. Prices and terms and conditions of payment, reservation of ownership
4.1. Payment shall take place without any deductions within 10 days of receipt of invoice, at the latest 30 days after delivery of the software or activation of the database or upon availment of the consideration provided by Grassfish. 2
4.2. Transfers from abroad do not apply as being payment until the account of Grassfish has been credited with the equivalent value. Commissions, brokerage, conversion fees, handling fees and other bank charges and payment transaction expenses shall be charged to the customer.
4.3. In the event of a delay in payment by the customer, Grassfish is entitled to invoice default interest at a rate of 5 percentage points above the respective base lending rate published by the Austrian National bank.
4.4. The usage rights in any software or database and the ownership of any other products of Grassfish shall not pass to the customer at any time until full payment has been made. In the event of payment default Grassfish is entitled to reclaim any software already delivered and to disable access of the customer to the database. The customer is obligated to surrender and/or provably delete the software.
4.5. In the event of default with other payments or in the event of any other behaviour that is in breach of the contract and for which the customer is responsible, after the unsuccessful expiry of a reasonable time limit Grassfish is also entitled to terminate the granting of the usage rights in accordance with point 8. without complying with a term of notice, to reclaim the delivered software and to disable access of the customer to the database without rescinding the contract. The customer is obligated to surrender and/or provably delete the software.
4.6. Set-off by the customer is permitted only if it’s counterclaims are determined by force of law, are undisputed or are recognized by Grassfish.
5. Liability and indemnity
5.1. In cases of product liability Grassfish is liable pursuant to the Product Liability Act.
5.2. The liability for damages on the grounds of a guaranteed condition of an element of the consideration and for damages arising from loss of life, physical injury or harm to health is not restricted by the following provisions. Otherwise Grassfish is liable exclusively subject to the following points 5.3 to 5.6.
5.3. Grassfish is liable exclusively in the event of wilful intent or gross negligence.
5.4. The liability for data loss is limited in amount to the typical cost of recreation that would have been incurred in the event of regular data backup.
5.5. Culpability-independent indemnity claims for any defects that existed at the time of conclusion of the contract are excluded.
6.1. The software version supplied shall be the respectively latest valid version released for distribution by Grassfish. The source code is not part of the scope of supply.
6.2. The customer is obligated to examine the software with which it is provided immediately upon receipt for any deviations from the agreed condition or for any other defects (hereinafter referred to as: defects). The customer shall immediately rebuke any defects in writing subject to a comprehensible description of the symptoms of the defects.
6.3. The user knows that, according to the state of the art, errors in the software and in the relevant other material cannot be excluded. However, Grassfish provides the customer with software that allows use of the functions specified in the operating instructions supplied. 3
6.4. Grassfish is not liable for the condition of software, if the latter is merely described in public comments, in particular within the scope of advertising for the respective software of Grassfish or its agents, if and as far as the customer cannot prove that these comments influenced its purchasing decision or if and as far as Grassfish or its agents did not know of and did not have to know of the comments or if the comments had already been corrected at the time of the purchasing decision.
6.5. Grassfish is not liable for any defects that only insignificantly reduce the value or the suitability of the subject-matter. An insignificant defect exists in particular, if the defect disappears of its own accord within a short time or can be eliminated by the customer itself with insignificant expenditure.
6.6. If a defect exists, Grassfish can choose whether Grassfish will eliminate the defect itself or supply a defect-free replacement (hereinafter referred to as: subsequent performance). Any replaced software shall be returned to Grassfish and any replaced data shall be deleted. The right to provide a reduction in purchase price in the event of failure or subsequent performance, to rescind the contract or to terminate the contract remains unaffected by this.
6.7. If any defects exist, the commercial customer can assert its legal rights to cancellation, reduction of the remuneration and/or indemnity after it has set Grassfish a reasonable time limit for performance or subsequent performance with the declaration that it will reject the performance or subsequent performance after expiry of the time limit and if the performance or subsequent performance fails within the set time limit.
6.8. Grassfish is no longer obligated to provide a warranty, if the customer itself, without the previous approval of Grassfish, has made or has arranged for third parties to make changes to the software, to a database or to the access to the databases of Grassfish, unless the customer proves that these changes do not exacerbate the warranty work and that the defect is not attributable to those changes.
6.9. The warranty obligation of Grassfish shall also not apply, if the software is used or the ASP service is utilized in a hardware or software environment that is other than the environment envisaged.
6.10. The warranty term is one year from delivery of the software or activation of the database. If an acceptance test takes place, it shall begin upon acceptance of the items of consideration by the customer or upon the occurrence of an acceptance default.
7. ASP services
7.1. Within the framework of the ASP service, Grassfish owes the customer the enablement of the access to the respective database of Grassfish (hereinafter referred to as: database) in accordance with point 7.3.
7.2 Grassfish does not owe the correctness, completeness or up-to-dateness of the data provided in its database. In this respect, any warranty whatsoever is excluded.
7.3. Grassfish is obligated to enable the customer access to the respective database or to transmit to the customer the data as contained in the database. Access is the possibility of processing the data as contained in the database by means of the software provided by the database. 4
7.4. For technical and operational reasons the databases are not available uninterruptedly. Their use is possible only to a limited extent, for example, in the case of regular maintenance work and updates. In addition the availability is subject to the restrictions that are intrinsic for the Internet and that, in particular, have their cause outside of the sphere of Grassfish. For example, the failure of external servers, external network loads and external interventions into the system.
8. Use of the software and databases
8.1. The software and the database provided to the customer of Grassfish are protected by copyright.
8.2. Grassfish grants the customer a single, non-transferable and not sub-licensable right to use the software or database provided. The usage right for temporary provision of the software and for the ASP service is limited to the contract term.
8.3. Usage is the running of software and the retrieval of data from the database to the functional and system extent respectively defined in the contract.
8.4. The customer obtains the usage right in accordance with point 8.2, subject to the deferring and terminating conditions of the timely and full payment of the agreed charges. This means that the customer is not allowed to use the software or database as soon as and as long as it has not paid the agreed charges.
8.5. The customer is entitled to copy the software and data stocks for security purposes within the framework of the usage in compliance with the contract.
8.6. Any right of the customer to the translation, processing or any other reworking of the software shall come into consideration only in the case of programs developed specially for the customer and provided only to the customer (individual software) and shall require at all times an express written agreement.
8.7. The customer is allowed to transfer software with which it has been permanently provided, including the usage rights therein, to third parties only with the approval of Grassfish.
8.8. The customer is obligated to prevent the access of unauthorized third parties to the software and data stocks by means of suitable precautions.
8.9. Grassfish does not grant the customer any other copyright or intellectual or industrial property rights.
9. Concluding provisions
9.1. Any claims arising from this contract are assignable only with the written approval of Grassfish.
9.2. The place of performance and place of payment is the registered office of the company Grassfish. The place of jurisdiction is Vienna.
9.3. Austrian law applies exclusively. 5
9.4. Should any individual provisions of these general terms and conditions of trade be or become ineffective, the effectiveness of the other provisions shall remain unaffected by this. In this case the parties to the contract are obligated to cooperate in creating provisions by means of which a result that comes as close as possible commercially to the ineffective provision is achieved with legal effectiveness.
Grassfish Marketing Technologies GmbH Heiligenstaedter Strasse 31/Stg.1/601 1190 Vienna, Austria