1 General remarks.
1.1 These LICENSE TERMS shall apply to the conclusion, content and performance of all contracts concluded between SCHINDLER IT-Solutions GmbH (hereinafter: SITS) and third parties (CUSTOMERS) for the software easyGDPR. These LICENSE TERMS shall also apply to later contracts, without it being necessary to refer to them again in individual cases.
1.2 Deviations from these License Terms shall only be effective if they have been agreed in writing between SITS and the CUSTOMER; they shall replace these LICENSE TERMS only to the extent that they conflict with these LICENSE TERMS. If any of the provisions of these LICENSE TERMS should be invalid, this shall not affect the validity of the remaining provisions of these LICENSE TERMS. The invalid provision shall be replaced by a provision which most closely approximates the economic intent of the invalid provision.
1.3 Licenses shall be granted to CUSTOMER exclusively in his capacity as entrepreneur. Consumers are excluded from any license acquisition and any use of easyGDPR.
1.4 The application of the CUSTOMER’s general terms and conditions is excluded.
2.1 SITS grants the customer the non-transferable, non-exclusive and indefinite right of use, the LICENSE, to the services of SITS, which are defined in more detail below and combined to form the easyGDPR product, in accordance with these license TERMS.
2.2 easyGDPR comprises tools and information for the General Data Protection Regulation and is made available to the CUSTOMER by SITS via ASP (Application Service Providing/SaaS)
2.3 The tools shall include training, checklists, inquiry functions and response functions for the exclusive and independent use by the CUSTOMER through the ASP on the system provided by SITS for this purpose and made available to the CUSTOMER.
2.4 The LICENSE shall be granted for one user respectively. One LICENSE is required for each user. A user is a natural person in the CUSTOMER’s company who uses the product easyGDPR.
2.5 Any transfer of a LICENSE to other persons and any access by such persons is not permitted.
2.6 Any reproduction of easyGDPR and use of the tools and information contained in easyGDPR for purposes other than checking, training and information of the CUSTOMER is not permitted.
3 LICENCE PERIOD AND DATA ACCESS.
3.1 The granting of the LICENSE shall only become effective upon confirmation of these LICENSE TERMS by the CUSTOMER and receipt of the LICENSE FEE by SITS. Until such time, the granting of the LICENSE may be revoked by SITS at any time without giving reasons.
3.2 The LICENSE shall be granted to the CUSTOMER for an indefinite period.
3.3 The contractual relationship can be terminated by either of the contracting parties by giving three months’ notice to the end of the respective contractual year.
3.4 SITS may restrict or terminate the easyGDPR ASP operation and/or revoke the LICENSE and block the CUSTOMER’s access to easyGDPR at any time without giving reasons. In this case, the CUSTOMER may reclaim from SITS the LICENSEE FEE corresponding to the not consumpted LICENSE PERIOD. This reclaim shall be excluded if the customer himself has given an important reason for discontinuation or revocation, in particular if
3.4.1 the CUSTOMER uses easyGDPR in violation of law or contract or
3.4.2 the CUSTOMER is at least 14 days in arrears with the performance of the LICENSEE FEE despite a reminder.
3.5 The CUSTOMER may terminate the contractual relationship for good cause with immediate effect, if
3.5.1 SITS fails to fulfill its contractual obligations despite being requested to remedy the situation within a reasonable grace period or
3.5.2 SITS exercises its right to increase the price in accordance with clause 4.5.
3.6 At the end of the contractual relationship, the associated right of use, the LICENSE, and the CUSTOMER’s access to data shall expire without further notice. The CUSTOMER shall no longer have access to the data, to easyGDPR and to the tools and information provided by SITS.
3.7 Three months after the expiry of the LICENSE, data stored by the CUSTOMER shall be deleted unless the CUSTOMER acquires another LICENSE. In order to obtain a transfer of the stored data of the CUSTOMER, the new contractual relationship in the case of the timely acquisition of a new LICENSE shall commence retroactively with the expiry of the original contractual relationship if the CUSTOMER does not expressly object to this on the occasion of the acquisition of the new LICENSE.
3.8 In the event that a consumer acquires a license contrary to the provisions of clause 1.3, SITS shall be entitled to revoke the LICENSE, withhold the license fee corresponding to the license period consumed and deduct an amount of EUR 360,00 from the license fee corresponding to the license period not yet consumed for flat-rate administrative expenses.
4 LICENCE FEE.
4.1 The amount of the LICENSE FEE depends on the version of the easyGDPR program that was purchased.
4.2 The LICENSE FEE is payable annually in advance and without deduction to the account of SITS, which will be announced on receipt of the invoice.
When ordering in the web shop, the first payment must be made immediately (e.g. by credit card) or by bank transfer.
4.3 In the event of default, CUSTOMER shall pay default interest of 14 % p.a. from the invoice date.
4.4 SITS shall be entitled to increase the LICENSE FEE by up to 5 % per annum without further justification with regard to price increases and inflation.
4.5 SITS shall have the right to increase the LICENSE AGREEMENT by more than 5 % if there is a factual justification.
4.6 The CUSTOMER waives the right to set off claims against SITS against the LICENSE FEE, unless such counterclaims have been expressly acknowledged by SITS in writing and in the amount of such counterclaims or have been legally established by court.
5 RIGHTS AND OBLIGATIONS OF THE CUSTOMER.
5.1 The use of easyGDPR presupposes that the CUSTOMER completely fulfills all IT, organizational and legal requirements required for the use in the systems, applications and infrastructures outside the ASP system provided by SITS and obtains and applies the necessary consulting and expertise in information technology, business organization and law itself (internally and/or externally). This advice and expertise is not replaced by the tools and information provided by SITS.
5.2 The CUSTOMER shall ensure that all data and information used by the CUSTOMER for easyGDPR are protected, stored and secured before and after each processing according to technical standards, IT requirements and relevant legal regulations. At the end of each processing, the CUSTOMER must produce prints in PDF format and on paper and store these prints securely and permanently.
5.3 Training shall take place exclusively on the initiative of the CUSTOMER and interactively between the CUSTOMER and the ASP System. SITS shall not control the content of the use of tools and information by the CUSTOMER. SITS does not assume any obligation to support easyGDPR and does not provide any services for customer-owned and/or customer-specific applications, systems and/or content within the scope of the CUSTOMER’s use for training.
5.4 Tools and information beyond the content of easyGDPR can be requested from SITS for a separate fee. Such commitments by SITS shall only become binding insofar as they are made to the CUSTOMER in writing and shall be deemed limited to seven days.
5.5 SITS shall link content, materials and/or services on its websites that are thereby accessible or available to the CUSTOMER. SITS shall check the third-party information and shall remove the link immediately upon becoming aware of any illegal activity or information. The CUSTOMER may notify SITS of such violations.
5.6 The CUSTOMER shall not be entitled to assign any claims against SITS to third parties.
6 RIGHTS OF SITS, AUDIT.
6.1 The CUSTOMER expressly consents to the transfer of information from SITS, in particular with regard to topics relating to the DSGVO and data security by electronic means (newsletter).
6.2 SITS has the right to carry out an on-site audit of the use of easyGDPR with seven calendar days written notice. The CUSTOMER shall cooperate with SITS in relation to such an audit (e.g. granting access to the audit in the productive environment/live system; providing appropriate copies of the live system). SITS will conduct such an audit during regular business hours at the premises of the CUSTOMER and, where practicable, in a manner that does not unduly interfere with the CUSTOMER’s business activities. SITS also has the right to incorporate technological testing mechanisms into its products. If an audit initiated by SITS reveals unauthorized or modified use or use in excess of the Licensed Capacity, CUSTOMER shall pay SITS for the unlicensed use at the then-current LICENSE FEE within 30 days of receipt of the notice by SITS indicating the unlicensed use of the Products. In addition, SITS shall be entitled to bring an action for infringement of SITS’ intellectual property rights.
7 LIMITATION OF LIABILITY.
7.1 SITS shall create and maintain the tools and information available in easyGDPR with the necessary care in accordance with the General IT Requirements for ASP and the systems used for it and the relevant legal regulations. SITS warrants the functionality and applicability of the tools
7.2 SITS does not assume any contractual or statutory warranty (warranty of general usability, warranty for the information retrievable through use and its application, warranty of suitability for a specific purpose or warranty of non-infringement of rights). SITS does not guarantee that easyGDPR meets the requirements of the CUSTOMER or runs in conjunction with hardware or software selected by the CUSTOMER or that it runs safely, error-free and without malfunctions..
7.3 The CUSTOMER shall always be responsible for proving that an alleged defect already existed at the time of delivery.
7.4 Warranty claims must be asserted in court by the CUSTOMER within a maximum of six months from knowledge of the defect, but in any case during the LICENSE DURATION, otherwise they shall lapse and expire.
7.5 SITS shall not be liable to the CUSTOMER, its representatives, employees and contractors for any damages resulting from the use of the tools, from the use of other functions and from information on the websites operated by SITS as well as for damages resulting from the use of applications, systems and infrastructures outside the ASP system provided by SITS for access by the CUSTOMER.
7.6 In particular, SITS assumes no liability for the consequences of incorrect use of the tools by the CUSTOMER, the consequences of decisions and measures taken by the CUSTOMER during or after use of the tools, other functions and information on the websites operated by SITS, errors in the use and application of the tools, loss of use, restrictions on use, loss of data, changes in data, disclosure of data, loss of profit, additional expenditure, consequential damage, indirect damage and for claims made by third parties in this connection.
7.7 In particular, SITS assumes no liability in connection with official measures, administrative acts, court and authority decisions, claims made by representatives, employees and/or contractors of the CUSTOMER as well as legal disputes arising from the use of tools, other functions and information on the websites operated by SITS.
7.8 Excluded from this exclusion of liability are damages for which the CUSTOMER can prove that SITS caused such damage with at least gross negligence, as well as personal injury.
7.9 Liability shall in any case be limited to the amount of LICENSE FEE paid for the respective contractual year for all claims for damages.
7.10 Liability claims must be asserted in court by the CUSTOMER within a maximum of six months from knowledge of the damage and the injuring party, but in any case within five years from the damaging event, otherwise they shall lapse and expire.
8 PROPERTY RIGHTS AND RESTRICTIONS.
8.1 SITS retains the right of disposal, ownership and intellectual property rights in and to easyGDPR. The CUSTOMER acknowledges these rights and will not endanger, restrict or otherwise interfere with the ownership or other rights of SITS with respect to easyGDPR. CUSTOMER further acknowledges that SITS shall own and retain all intellectual property rights, including all copyrights and patent rights in or in connection with easyGDPR, in the relationship between the parties to the contract. CUSTOMER shall at no time during or after the term of this Agreement claim or assert any interest in SITS’ intellectual property rights in or relating to easyGDPR or any claim or action that may adversely affect SITS’ ownership thereof or the validity thereof. The CUSTOMER may neither distribute easyGDPR nor pass it on to third parties, nor copy, translate, rework, decompile, disassemble or change easyGDPR in whole or in part. The CUSTOMER is also not entitled to renumerate the modules, to extract the modules from the database for which they were licensed and to use them for other purposes as well as to modify easyGDPR and further market the modification. The CUSTOMER may neither lease easyGDPR nor parts thereof to third parties. Any subsequent modification of the software by the CUSTOMER or by third parties commissioned by the CUSTOMER shall void any liability and warranty claims against SITS.
9 FINAL PROVISIONS.
9.1 These LICENSE TERMS and all resulting rights and obligations as well as contracts to which these LICENSE TERMS apply shall be governed exclusively by Austrian law to the exclusion of conflict of laws standards and the UN Convention on Contracts for the International Sale of Goods.
9.2 Place of performance shall be Stetten at Korneuburg. For any disputes arising out of or in connection with these Terms and Conditions, the parties agree to submit to the competent court for Korneuburg, waiving any other place of jurisdiction.
9.3 The current version of these LICENSE TERMS shall apply to the contractual relationship. SITS shall provide the CUSTOMER with an updated version if necessary; the then updated LICENSE TERMS shall be deemed to have been agreed unless the CUSTOMER expressly objects thereto within four weeks.