• Terms

General Terms and Conditions

I. General

1. Area of competence: Services are rendered for the purposes of solving business problems with working times, remuneration and related areas. A legal consultation is expressly excluded.

2. Support by the Client: The Client supports the comprehensive fulfilment of the contract, free of charge, and takes adequate measures to verify results.

3. Liability: The Contractor will provide compensation only in the event of malicious intent or gross negligence. The liability for all claims of the Client is limited to the fee agreed upon for the contract irrespective of their legal basis, to the extent permitted by law. The Contractor is in no way liable for loss of profit, non-achieved savings, damages from third-party claims vis-à-vis the Client, indirect damage and consequential harm caused by a defect, as far as it conforms with the law.

4. Guarantee: The Client shall inform in writing, within one month of delivery or service, whether there are defects and where these are. If the Client does not provide an explanation or begins using the software, then this shall be deemed to be faultless acceptance at the time of the delivery or service. The length of the guarantee is 6 months. The Contractor retains the right to rectifications of defects. If the rectifications of defects prove to be unsuccessful, the buyer can cancel the contract of purchase or reduce the purchase price appropriately.

5. Payment: Payment is due from the date of the invoice. Default interest shall be charged in the amount of 10% per annum. All prices are fixed prices exclusive of VAT. A deduction of discount is not possible.

  • a) Consultancy services or services that are invoiced on a time and material basis, are charged monthly. The employees of the Contractor record the daily working hours in a list specifying the position and the type of activity and present this with the invoice. The Client can demand to see the list at any time.
  • b) The Client is – irrespective of his or her rights to refuse payments due to missing or erroneous counter-performance – not authorised to withhold payments. The Client can set only receivables that are undisputed or determined to be legally binding off from amounts owed.

6. Confidentiality: The Contractor obliges to furnish the confidentiality of trade secrets and all information indicated as confidential, which are disclosed to him as a result of the order fulfillment, for an unlimited time. Confidential information shall only be passed on to third parties after written approval by the Client.

  • a) The Contractor obliges all persones involved with the order fulfillment to a written undertaking to comply with this regulation.
  • b) Both parties are permitted within the scope of the order fulfillment to process and store data of the other party automated.

7. Place of Fulfillment and legal domicile: Any disputes arising hereunder will be settled before a competent Vienna court of law.

Copyright (c) 2013 by XIMES GmbH. All rights reserved.

    II. Licensing of Software

    1. Subject matter of the contract: The scope of services of the agreed programs are stated in the respective program describtion supplemented by the user documentation.

    These terms also apply to any updates, upgrades, variations, modifications, alterations, additions, error corrections, enhancements, functional changes or other changes, supplements, internet-based services, support-services for the program and its documentation unless these items are accompanied by other terms. If so, those terms apply.

    2. Right of utilization and right of return: XIMES passes on the non-exclusive right to use the software for internal use to the Client. The use of the software for consulting or problem solution purpose for third parties is expressly excluded. Any other than internal use is only permitted through written approval of the Contractor or defined in the license agreement of the standard software.

    Unless you have a different license agreement signed by XIMES GmbH, your use, distribution, or installation of the software indicates your acceptance of this agreement ("License").

    If you do not agree to all of the terms and conditions of this License, then: (a) do not copy, install, distribute or use any copy of the software with which this License is included, and (b) in addition, if you paid XIMES or an authorized XIMES reseller for a package consisting of one or more copies of the software, you may return the complete package unused, within fifteen (15) days after purchase, for a full refund of your payment.

    The terms and conditions of this License describe the permitted use and user(s) of each Licensed Copy the software. For purposes of this License, if you have a valid single-copy license, you have the right to use a single "Licensed Copy" of the software; if you or your organization has a valid multi-user license, then you or your organization have/has the right to use up to a number of "Licensed Copies" of the software equal to the number of copies indicated in the documents issued by XIMES GmbH when granting the license.

    3. License fee:  The amount of the license fee is defined by the scope of use. If the Client wishes to extend the agreed scope of use it must be defined upon in advance.

    4. Delivery: The programs are delivered in ....including a set of user documentation (printed or on electronic data medium). The Client has to accept the program delivery by a written confirmation.

    5. Interface describtion: The contractor agrees to provide the client with the required information for all existing interfaces of his programs to third party software, against reimbursement of the copy and delivery costs. This information may be distributed to other Clients.

    6. Scope of License: Each Licensed Copy of the software may either be used by a single person who uses the software personally on one or more computers, or installed on a single workstation used non-simultaneously by multiple people, but not both. This is not a concurrent use license.

    Each Licensed Copy may be accessed through a network, provided that you have purchased rights to use a Licensed Copy for each workstation that will access the software through the network. For instance, if 8 different workstations will access the software on the network, you must purchase rights to use 8 Licensed Copies of the software, regardless of whether the 8 workstations will access the software at different times or concurrently.

    The software is licensed, not sold. All rights of any kind of the software which are not expressly granted in this License are entirely and exclusively reserved to and by XIMES GMBH. You may not rent, lease, modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the program, nor permit anyone else to do so. You may not make access to the software available to others in connection with a service bureau, application service provider, or similar business, nor permit anyone else to do so.

    6a. Scope of License - additional agreement for Time Intelligence Solutions [TIS]: TIS is an ASP.Net server application. Therefore the license consists of:

    1) a server license for the software to be installed on a server, i.e. your own server or by making use of hosted services (by XIMES or other contractors) on a server operated by one of your contractors. Per server license only ONE installation is allowed. If you use hosted services by other contractors than XIMES you are made liable for any misuse of the server license. You have to purchase at least one server license for each of your subsidiaries for which you use TIS.

    2) one or more user licenses for access (also remote) from any other device/terminal. You have to purchase one user license per named user, regardless of whether the users will access TIS at different times or concurrently. The names of the namend users will be indicated in the documents issued by XIMES GmbH when granting the licenses. You may change the designated named user by giving to XIMES written notice of the change within thirty (30) days after it has taken place.

    This agreement only gives you some rights to use the features in the software version of TIS you licensed. All rights of any kind in TIS which are not expressly granted in this license are entirely and exclusively reserved to and by XIMES GmbH. In using the software you must comply with any technical limitations in TIS that only allow you to use it in certain ways. You may not work around technical limitations.

    For the avoidance of doubt, nothing in this agreement requires XIMES to deliver to you any copies of the source code of TIS, and nothing in this agreement constitutes to use the source code of TIS.

    7. Installation: The contractor agrees to provide the client with the required information for all existing interfaces of his programs to third party software, against reimbursement of the copy and delivery costs. This information may be distributed to other Clients.

     8. Client obligation for program protection: The Client accepts that the program including the user documentation and additional documents are protected by copyright - also in future versions - and that they maintain trade secrets of the Contractor. He shall exercise all reasonable care for an unlimited time, to prevent disclosure of this Information to any third party, provided they are delivered as source code. The transfer of source code must be agreed upon by written confirmation of the Contractor, which shall not be rejected in good faith.

    9. Warranty Disclaimers and Liability Limitations: You will give written notice within thirty (30) days from delivery or service giving reasonable information about any faults. Should you not give notice within the stated period or start using the software this will be regarded as flawless delivery/notice of acceptance at delivery or service. Warranty period is six (6) months at the longest. XIMES GmbH reserves the right for finishing touches. Should these be ineffective you have the right to cancel the contract or to have the price reduced adequately.

    The agreed program and any and all accompanying software, files, data and materials, are distributed and provided "AS IS" and with no warranties of any kind, whether express or implied.

    Any liability of XIMES GMBH will be limited exclusively to refund of purchase price. In addition, in no event shall XIMES GMBH, or its principals, shareholders, officers, employees, affiliates, contractors, subsidiaries, or parent organizations, be liable for any indirect, incidental, consequential, or punitive damages whatsoever relating to the use of the software, or to your relationship with XIMES GMBH.

    In addition, in no event does XIMES GMBH authorize you or anyone else to use the software in applications or systems where the software's failure to perform can reasonably be expected to result in a significant physical injury, or in loss of life. Any such use is entirely at your own risk, and you agree to hold XIMES GMBH harmless from any and all claims or losses relating to such unauthorized use.

    You acknowledge that good data processing procedure dictates that any program, including the software, must be thoroughly tested with non-critical data before there is any reliance on it, and you hereby assume the entire risk of all use of the copies of the software covered by this License. This disclaimer of warranty constitutes an essential part of this License.

    10. Place of Fulfillment and legal domicile: Any disputes arising hereunder will be settled before a competent Vienna court of law.

    Copyright (c) 2013 by XIMES GmbH. All rights reserved.

    III. Support and Maintenance for Software (Software Maintenance contract)

    1. General: Subject of the contract are maintenance services and user support for the software the contract or quotation covers, in accordance with the scope detailed in Chapter 2.

    2. Software maintenance: Software maintenance shall include the following services:

    • The Provider guarantees for the sustained utility of the maintained software as detailed in the programme description valid at the time of the conclusion of the contract.
    • The correction of defects in the software and its documentation which do not fulfil the functions detailed in the programme description valid at the time of the conclusion of the agreement, produce deficient results, interrupt their functions uncontrollably or which do not function adequately and thus impede or considerably impair the use of the software by the Customer. The Customer shall adequately support the Provider in correcting the defect in any possible way and especially by detailing the defect and its occurrence in writing. 
    • The correction of a defect comprises the localisation of its causes, the measures to correct the defect or the indication of temporary alternative measures to avoid the effects of the defect (workaround) if this is possible with reasonable effort.
    • Maintenance service for software modified by third parties or for programme parts not comprised in the original version of the software identified in Chapter 1 or are not subject of the Software Maintenance and Support Contract.
    • Services deployed for the correction of damage caused by defects in the products of third parties, hardware malfunctions, force majeure or improper use of the software are not subject of the present contract.
    • The correction of defects of the software which become known to the Provider from other sources than the Customer.
    • The provision free of charge of current releases of the software version identified in Chapter 1 (updates); The Provider grants the Customer the right to use the software identified in Chapter 1 within the scope detailed in the Software Purchase Contract.
    • The provision of required additional documentation should this new software be different from the existing one.
    • The replacement of data carriers which have become unreadable at the cost price of the Provider.
    • System consulting and problem analysis on site can be requested as a payable extra service at any time.
    • The Provider is obliged to maintain only the current software version. After the release of a new version, the old version shall be maintained for at least 6 more months.

    2.1 Exemption: Programmes and parts of programmes which have been modified in any way by any person other than the Provider or persons authorised by the Provider, and parts of programmes which were not comprised in the original version as identified in Chapter 1 are excluded from the maintenance services of the present contract.

    2.2 User support: User support shall cover the following services:

    • Response to telephone inquiries during the service hours and within the scope determined in Chapters 2.3.1 and 2.3.2 (hotline).
    • Response to inquiries received by the Provider by e-mail, fax or letter within the scope defined in Chapters 2.3.1 and 2.3.2.
    • The above-mentioned actions can be carried out by means of remote maintenance. User support cannot replace user trainings and services such as modeling and installation as well as the remittance of documentation.
    • Each valid licence under the present contract entitles the Customer to send an employee to the user workshops in held Austria OR Germany OR (only applicable for customers with a company seat out of Europe) to two consulting hours by a qualified working time consultant by telephone, web-conference or in person in Vienna.

    2.2.1 Product Hotline for [SPA] and [OPA]: contact information for the hotline is found on the following site:

    Scope of the hotline service: 

    • The clarification of user errors which result in error messages in [SPA] and [OPA] and the clean-up of customer's files by the Provider if necessary and possible.
    • The determination of programme defects; If the cause of the defect is known, a workaround or other method shall be offered or a later release indicated. 
    • Contact with the XIMES consultant to convene a date for further modeling; Remodelling can be requested as a payable extra service at any time. 
    • The verification of interface configurations established by the consultant in case results are faulty; In general, interface set-up is comprised within the scope of the consulting service. In case existing configurations yield undesired results, the user support shall clarify the cause of the defect. The Provider shall solicit any and all information from the Customer which is necessary to reproduce the case in question. 
    • The verification of existing standard report configurations and the forwarding of inquiries for the establishment of customer-specific reports; Support and maintenance of customer-specific reports after the warranty period are excluded thereof.

    2.2.2 Technical Hotline for [SPA] and [OPA]: contact information for the hotline is found on the following site:

    Scope of the hotline service:

    • Support with the installation or update of the Software identified in Chapter 1; Complete installation assistance can be requested any time as a payable extra service.
    • Support with the diagnosis of defects and correction of defects occurring during the use of the software identified in Chapter 1.
    • Provision of the information necessary for the preparation of the basic software.

    3. Warranty: The Provider shall be obliged to furnish the necessary maintenance services and user support with due care. 

    The Provider shall correct any deficiencies in the provision of its services or provide a remedy within an adequate term (supplementary performance). The Provider shall bear the entire cost incurred in connection with the supplementary performance, especially the cost of transport, travel, work and material. The above does not apply, if the software has been transferred to a site other than the company seat / the registered office of the Customer after its delivery, unless this transfer has been previously agreed. 

    In case the supplementary performance fails or is unacceptable for the Customer, the Customer may either pay a lesser price upon agreement with the Provider or terminate the contract without notice. Additional damages can be claimed in accordance with Chapter 4 only. Such extraordinary termination shall only be possible in case of a fundamental defect. 

    In addition, the legal provisions of Austria apply.

    4. Liability: The Customer shall only be entitled to damages on the basis of a defect or any other neglect of duty if the Provider, his legal representatives or vicarious agents have acted deliberately or with gross negligence, if there is a mandatory legal liability for the Provider for the breach of a duty vital for the fulfillment of the purpose of the contract or if the liability relates to health, injury or death.

    The liability of XIMES GmbH is restricted to predictable damages typical for this type of contract unless the damage was caused deliberately or with gross negligence or if the liability relates to health, injury or death. 

    Liability according to the Austrian product liability law remains unaffected. 

    Claims for damages on the basis of a breach of obligations which does not result in a defect shall become time-barred within one year after the legal commencement of the limitation period insofar as this can be legally agreed.

    5. Fee: The maintenance fee shall be paid per invoicing period in advance.

    In case the Customer carried out unauthorised modifications on the software all claims to services of the present contract expire. The payment obligation of the Customer remains unaffected thereof. However, the Customer may request the Provider to re-establish the former software status at the Customer's own expense.

    6. Duration of Contract: If not defined otherwise the Software Maintenance and Support Contract enters into effect with the delivery of the Software and is valid for an indefinite time. 

    7. Termination: The contract can be terminated by either Party at the end of each support year, i.e. 31 March, subject to a term of notice of three months. After termination the contract will end on 30 June.

    Furthermore, either Party has the right to terminate the contract for cause. The following circumstances shall constitute reasons for a termination for cause (non-exhaustive list)

    • payments outstanding or partially outstanding for more than a quarter
    • opening of insolvency proceedings over the assets of the Customer 
    • software passed on to a third party by the Customer in breach of the contract

    8. Final provisions: The present Software Maintenance and Support Contract is subject to Austrian law. The seat of the XIMES head office (Vienna) is agreed as place of jurisdiction for all disputes arising in connection with the present Software Maintenance and Support Contract. The place of performance is Vienna. These conditions apply insofar as the Customer is a merchant, a legal person under public law or a special fund under public law.