General Terms and Conditions and Software License Conditions

Last Change 13.6.2018


I. General information

1. area of competence: Services are provided to solve business management problems relating to working hours, pay and related topics. Legal advice is expressly excluded.

2. support by the client: the client supports the fulfilment of the order comprehensively and free of charge and takes appropriate precautions to verify the results.

3. liability: The provider only pays compensation in case of intent or gross negligence. The liability for all claims of the client is independent of their legal basis, as far as legally permissible, limited to the remuneration agreed for the contract. To the extent permitted by law, the provider shall in no case be liable for lost profits, expected but not incurred savings, damages from third party claims against the client, indirect damages and consequential damages.

4. Warranty: The customer shall inform us in writing within 1 month of delivery or performance at the latest, stating the reasons for any defects and, if so, which ones. If the customer does not make a declaration or begins with the operative use of the software, this shall be deemed as acceptance without complaint at the time of delivery or performance. The warranty period shall not exceed 6 months. The provider reserves the right to remedy the defect. If the repair is unsuccessful, the buyer can cancel the purchase contract or reduce the purchase price appropriately.

5. payment: payments are due from date of invoice. Interest on arrears will be charged at the rate of 10% per year. All prices are fixed prices plus VAT. A deduction of discount is not possible.

a) Consultancy services or services billed on a time and material basis shall be invoiced on a monthly basis. The provider's employees record the daily working hours in a list, stating the position worked on and the type of activity, and present this list together with the invoice. The customer may request access to the list at any time.

b) Irrespective of his right to refuse payments due to missing or defective consideration, the customer is not entitled to withhold payments. He may only set off claims which have been legally established or which have been acknowledged by the provider.

6. obligation of secrecy of the provider/data protection: The provider is obliged to maintain secrecy about business and company secrets as well as about all information designated as confidential, which becomes known to him in connection with the execution of the order, for an unlimited period of time. The transfer to persons not involved in the execution of the order may only take place with the written consent of the customer.

a) The offerer obligates all persons assigned by him to the execution of the order in writing on the observance of the preceding regulation.

b) Each contractual partner may automatically process data of the other within the framework of order processing.

7. place of performance and jurisdiction: 

Place of performance and jurisdiction is Vienna.

      II. Überlassung von Software

      1. subject matter of the contract: The scope of services of the agreed programs results from the respective program description, supplemented by the user documentation.

      The license terms are also valid for any updates, upgrades, modifications, corrections, enhancements, functional or other changes, additions, Internet-based services, and support services of the programs and their respective documentation, unless accompanied by different terms. In which case the latter shall take effect.

      2. right of use and right of return: The client is granted the non-exclusive right to use the software for internal company requirements. The use of the software for consulting or problem solutions in third companies is expressly excluded. Any use other than internal company use is only permitted with the written consent of the provider or regulated in the contract for the provision of the standard software.

      Unless you have concluded a different license agreement with XIMES GmbH in writing, by using, passing on or installing the software you declare your agreement with the provisions of these license conditions.

      If you do not agree with any of the terms hereof, a) you may not install, use, or distribute the copy of the Software, and b) if you have paid XIMES GmbH or an authorized XIMES GmbH distributor for the copy, you may return the unused copy to XIMES GmbH or the distributor within fifteen (15) days of the date of purchase, upon presentation of the proof of purchase and a full refund of the purchase price.

      3 The amount of the transfer fee shall depend on the scope of use. If the customer wishes to extend the agreed scope of use, this must be agreed in advance.

      4. Delivery: The programs are delivered in executable form (as object programs) together with a set of user documentation (printed or on data carriers or integrated in the software as a help function). The customer shall confirm the delivery of the programs in writing.

      5. interface description: The provider is prepared to provide the customer with the necessary information about the interfaces against reimbursement of the copy and shipping costs if interfaces exist in his programs to software not to be delivered by him. This information may be disclosed to other contractors.

      6. license scope: The software may be installed per license either by a single person on one or more computers and used exclusively by himself, or installed on a single workstation and used by several persons on this one workstation.

      An installation on several computers, which are used by several persons at the same time, is not permitted.

      If you want to install the software on a network, you must purchase a separate license for each workstation that accesses the software over the network. For example, if eight (8) workstations can access the software on a network, each workstation will need its own license, regardless of whether they access the software at the same time or at different times.

      You may make a backup copy of the Software if necessary for your future personal use of the Software.

      You agree to indemnify or hold XIMES GmbH harmless from and against any and all third party claims for damages, including all court and attorney fees, arising out of any such unauthorized use of the Software.

      The software is licensed, not sold. Any rights to the Software not expressly granted to you by this License Agreement are reserved exclusively by XIMES GmbH. You are not entitled to rent or lend the software, including by way of software leasing. Furthermore, you are not entitled to modify, translate, reverse engineer, decompile, disassemble and/or use the software as a basis for creating your own software programs.

      You may not make the Software available to any third party or use it in any company to provide services to any third party. No rights of third parties can be derived from your rights under your license.

      Special licenses:

      Consultant licenses: If you want to use the software to offer services to third parties, either for a fee or free of charge, you must purchase a consultant license of the software. All other conditions described here also apply to these consultant licenses. 

      Training licenses: Training licenses are limited in time and may only be used for the respective software training during its duration. In all other respects, all the above conditions apply here. After completion of the training all copies of the software are to be deleted by the customer as soon as possible.

      Demolizen: Demolizenzen are temporally limited and in principle free of charge. Demolizenes may not be used commercially or outside the company of the interested party. After the end of the test period, all copies of the software must be deleted immediately by the customer. Demolizen can be offered by the offerer (also exclusively) in obligatory combination with (also liable to pay the costs) training courses. In this case the price refers exclusively to the training. 

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

      1) a server license of the software, which is either installed on your own server or used via a hosted service (by XIMES GmbH or another contractual partner). A server license entitles you to a single installation on the server. If you use a hosted service of another contractual partner, you are liable for any misuse of the server license. For each of your subsidiaries for which you use [TIS], you must purchase at least one server license.

      2) one or more user licenses for access (also remote) from each individual device/computer. You must purchase one user license per user, regardless of whether access to [TIS] occurs simultaneously or at different times. The names of the appointed users will be stated in the documentation you receive from XIMES GmbH upon licensing. You may change the Designated Users by notifying XIMES in writing within thirty (30) days after the change is made.

      The license agreement grants you only certain rights to use the licensed software version. When using the software, you must comply with all technical restrictions imposed by the software. You are not allowed to circumvent technical restrictions.

      To rule out any doubt: This Agreement does not obligate XIMES to provide a copy of the source code to Licensee in any way, and nothing in this Agreement authorizes you to use the source code of TIS.

      7. commissioning: it is the responsibility of the customer to put the programs into operation. This also includes that the customer checks these under his conditions of use. The supplier is prepared to support him in this upon request. All support services (in particular application preparation, installation and demonstration of successful installation, instruction, training or consulting) shall be remunerated on a time and material basis, unless otherwise agreed. If the supplier takes over the installation, the customer will confirm its successful completion in writing.

      8. coordination: The provider appoints a client advisor, the client a responsible contact person. They can make decisions or bring them about immediately. The client advisor shall record decisions in writing.

      The contact person is available to the provider for necessary information. The provider is obliged to involve the contact person as far as the execution of the contract requires this.

      The customer shall ensure that competent personnel are available for the use of the programs at the latest at the time of delivery.

      9. obligations of the customer to protect the program:

      The customer acknowledges that the programs including user documentation and other documents - also in future versions - are protected by copyright and that they are trade secrets of the provider. It shall take care, for an unlimited period of time, that these, insofar as they are supplied as source programs, shall not become accessible to third parties without the consent of the Provider. The transfer of source programs requires the consent of the Provider, which may not be withheld in good faith.

      a) The customer may not do anything that could encourage unauthorized use; in particular, he may not attempt to decompile the programs. The Customer shall immediately inform the Provider if it is suspected that unauthorized access is imminent or has even occurred in its area.

      b) The customer may copy the programs only for purposes which are necessary for the contractual use. Copyright notices in the programs may not be deleted.

      c) The provider shall be entitled to take the necessary measures to protect the programme. The use of the programs on an alternative configuration or on a successor configuration shall not be significantly impeded thereby.

      d) The provider can revoke the customer's right of use if the customer seriously violates the right of use (point 2) or the other aforementioned program protection obligations. In less serious cases, the provider must first set a grace period to remedy the situation. In the event of a repeat offence, the Provider may revoke the contract without setting a deadline.

      e) In the case of software from sub-suppliers, the respective sub-supplier can assert the rights of the provider to program protection from this contract against the customer.

      10. Warranty: You shall give written notice of whether defects exist and, if so, which defects exist within thirty (30) days of delivery or performance at the latest. If you do not make a declaration or start using the Software, this shall be deemed to be acceptance without complaint at the time of delivery or performance. The warranty period shall not exceed six (6) months. XIMES GmbH reserves the right to rectify defects. If the repair is unsuccessful, the purchaser may cancel the purchase contract or reduce the purchase price accordingly.

      XIMES does not warrant that the program functions will meet your requirements; that the programs will run uninterruptedly and error-free; that all program errors can be eliminated; nor for errors, malfunctions, or damage caused by improper installation, operation, use of unsuitable organizational devices and data carriers, unusual operating conditions, or transport damage. XIMES shall not be liable for errors or damage caused by errors in the operating system or in development tools.

      All defects, repair and/or warranty requirements must be reported to XIMES GmbH and can be reported to XIMES GmbH Customer Service at XIMES GmbH, Hollandstr. 12/12, 1020 Vienna, Austria.

      11. liability: XIMES GmbH will only pay damages in case of intent or gross negligence. The liability for all claims of the client, regardless of their legal basis, is limited, as far as legally permissible, to the remuneration agreed for the contract. To the extent permitted by law, the Provider shall in no case be liable for lost profits, expected but not incurred savings, damages from claims of third parties against the Customer, indirect damages and consequential damages.

      Attention: XIMES GmbH expressly prohibits the use of the software in applications or systems in which malfunctions of this software may cause injury to life, limb or health in human discretion and under consideration of all circumstances and conditions under which the software is used or is to be used. The use of the program in such an environment is exclusively at your own risk and at the risk of the persons concerned.

      It is strongly recommended that the software, like any other software, be extensively tested in a non-critical, live environment before actual use. You bear the entire risk that the Software may be used for the purposes for which you are intended.

      You acknowledge that, according to the state of the art, it is not possible to create computer software in such a way that error-free operation can be guaranteed in all applications and combinations. XIMES GmbH therefore does not guarantee that the software is completely free of errors.

      12. Place of performance and jurisdiction: The place of performance and jurisdiction shall be Vienna.

      13th choice of law: These Terms and Conditions shall be governed exclusively by Austrian law. The application of the Uncitral Convention on the International Sale of Goods is excluded.

      III. Software maintenance (update contract)

      1. general: Part of the update contract is against an annual, flat fee the software maintenance (error correction), the telephone short consultation in case of error and the free delivery of further releases / versions of the software, which are subject of the contract or offer.

      All other services provided by the provider in connection with the use of the standard programs shall be remunerated separately.

      2. software maintenance and servicing: The software maintenance and servicing comprises the following services:

      • Warranty for the preservation of use of the maintained software according to the program description valid at the time of conclusion of the agreement.

      • Elimination of defects in the software and its documentation which do not fulfil the functions specified in the program description valid at the time of conclusion of the agreement, which deliver defective results, which uncontrollably interrupt its functions or which do not behave in a functionally appropriate manner in any other way and thereby hinder or considerably impair the use of the software by the customer. The Customer shall provide the Provider with reasonable support in remedying the defects in every way and in particular shall notify the Provider in detail of the defects and their occurrence.

      • The removal of defects includes the limitation of the causes of the defect, as well as measures to remedy the defect or - as far as this is possible with reasonable effort - the identification of temporary ways to avoid the effects of the defect (workaround).

      • The brief telephone consultation serves exclusively to support the customer in an error analysis. Consulting regarding software operation and shift planning problems are not part of the contract. Short telephone consultation is only guaranteed during office hours.

      • Maintenance services for software that has been modified by third parties or for program parts that do not belong to the original version of the software described in Chapter 1 are not covered by the services of the software maintenance and support agreement.

      • Services to eliminate damage caused by defects in third-party products, hardware failure, force majeure or improper handling of the software are not part of the services of this contract.

      • Remedy of defects in the software that become known independently of the use by the customer.

      • Free provision of current releases of the software version specified in Chapter 1 (Updates). The provider grants the customer the right to use the software to the same extent as the customer was entitled to use the software described in chapter 1 through the software purchase agreement.

      • New releases are for troubleshooting, new versions have extended functionality. The services described in the update contract refer to the current version of the software.

      • Provision of additionally required documentation if this deviates from the existing documentation.

      • Delivery of replacements for no longer readable data carriers at the cost price of the provider.

      • System consulting and problem analysis on site can also be requested at any time as a chargeable service.

      • Obligation that the provider only maintains the current software version. After the release of a new version, the old version will be maintained for at least 6 months.

      2.1 Exclusion: Excluded from care and maintenance are:

      Programs or program parts that are or have been interfered with in any form by persons other than the Provider or persons authorized by the Provider, and program parts that are not part of the original version of the software specified as part of the maintenance contract.

      2.2 User support: User support includes the following services:

      • Answering telephone enquiries during the times and to the extent specified in Sections 2.2.1 and 2.2.2 (hotline).

      • Answering questions received by the Provider by e-mail, fax or letter to the extent set out in Sections 2.2.1 and 2.2.2.

      • These points can be supported by remote maintenance. However, user support is not a substitute for user training, services such as modeling and installation, or the provision of documentation.

      • For each valid license of this contract, the customer has the right to either let an employee participate in the software user workshops in Austria or Germany free of charge OR (only applicable for a company location of the customer outside Europe) the right to two free consulting hours each by a qualified working time consultant by telephone, web conference or personally in Vienna per half-year.

      2.2.1. Product hotline for [SPA] and [OPA] :

      Our hotline can be reached during office hours (9:00 - 17:00 CET) at +43 (0)1 535 79 20-0. 

      You will receive telephone support in case of technical problems with your software.   If you have a valid XIMES maintenance contract, please let us know.  Alternatively, you can also send an email to support@ximes.com .

      Scope of hotline services:

      • Clarification of operating deficiencies which lead to defect reports when working with [SPA] or [OPA] and possible correction of a customer file by the provider, as far as necessary and possible.

      • Clarification of program deficiencies. If the cause of the defect is known, a workaround or other options are offered or a newer release is referred to.

      • Contact your XIMES representative to arrange an appointment for further modeling. New modelling can be requested at any time as an additional chargeable service.

      • Testing of existing interface configurations set up by the consultant in the event of erroneous events. In principle, interfaces are set up within the scope of consulting services. If undesirable events occur in existing configurations, user support will clarify the cause of the defect. All information from the customer must be obtained which makes it possible to reproduce the concrete case.

      • Review existing standard report configurations and forward requests to create custom reports. Support and maintenance of custom reports are excluded at the end of the warranty period.

      2.2.2 Technical hotline for [SPA] and [OPA]: 

      Our hotline can be reached during office hours (9:00 - 17:00 CET) at +43 (0)1 535 79 20-0. 

      You will receive telephone support in case of technical problems with your software.   If you have a valid XIMES maintenance contract, please let us know.  Alternatively, you can also send an email to support@ximes.com .

      Scope of hotline services:

      • Support with the installation or update of the software specified in Chapter 1. Complete installation support can be requested at any time as an additional chargeable service.

      • Support in defect diagnosis and elimination of defects that occur during operation of the software specified in Chapter 1.

      • Provision of the necessary information for the preparation of basic software.

      3. Warranty: The provider undertakes to carefully provide the necessary care and maintenance services or user support.

      The provider shall remedy any defects in the performance of the services within a reasonable period of time or deliver a replacement (subsequent performance). The Supplier shall also bear the expenses required for the purpose of subsequent performance, in particular transport, travel, labour and material costs. This shall not apply if the expenses increase because the software has been moved to a location other than the Customer's place of business after delivery, unless the transfer was agreed in advance.

      If the supplementary performance fails or if it is unreasonable for the customer, the customer may, at his discretion, reduce the remuneration after consultation with the provider or terminate the contract without notice. In addition, damages can only be claimed in accordance with Chapter 4. Such an extraordinary termination shall only be considered in the case of a material defect.

      Otherwise, the statutory provisions shall apply.

      4. liability: The customer can only claim damages due to a defect or any other breach of duty if the provider, its legal representatives or vicarious agents are guilty of intent or gross negligence, if liability is legally mandatory due to a breach of an obligation that is decisive for the achievement of the entire purpose of the contract or if liability is involved due to injury to life, body and health.

      The liability of XIMES GmbH is limited to the amount of the contract-typically foreseeable damage, provided that it is not an intentional or grossly negligent cause of damage or liability for injury to life, limb and health.

      The liability according to the Austrian Product Liability Act remains unaffected.

      Claims for damages due to breaches of duty which do not lead to a defect shall become statute-barred within one year of the statutory commencement of the limitation period, insofar as this can be agreed as permissible.

      5. remuneration: The care lump sum is to be paid in advance per accounting period.

      The lump-sum remuneration for the standard care according to point 2 shall be agreed in accordance with the scope of use. It is adjusted automatically as soon as this changes.

      The provider is entitled and obliged to adjust the lump-sum remuneration to that which he demands when connecting new care contracts. Increases are only permitted once a year and must be announced three months in advance. The customer may terminate the contract at the time it takes effect. An on-site service is not part of this contract. All customer assignments will be remunerated separately.

      In the event that the customer makes unjustified changes to the software, the customer's claim to services from this contract expires. The customer's obligation to pay remains unaffected. It is, however, at the Customer's discretion to commission the Provider with the restoration of the old software status at the Customer's expense.

      6. term: Unless otherwise agreed, the maintenance contract begins with the delivery according to the transfer contract for the standard programs (if the provider installs these with the completion of the installation) and is concluded for an indefinite period.

      7. termination: DThe care contract can be terminated once a year, in each case to the end of the first quarter (up to 31.3.) by both contracting parties in writing. After termination, the contract ends at the end of the 2nd quarter on June 30. The right to terminate the contract for good cause remains unaffected.

      An important reason is in particular, but not exclusively, the following

      • if the customer is in arrears with the payment of an invoice by more than one quarter in whole or in part.

      • if insolvency proceedings are opened against the customer's assets.

      • if the customer transfers the software to a third party in breach of contract.

      8. final provisions: This Software Maintenance and Support Agreement is governed by Austrian law. The place of jurisdiction for all disputes arising in connection with this Software Maintenance and Support Agreement shall be the court responsible for the headquarters of XIMES (Vienna); the place of performance shall be Vienna. These agreements shall apply if the customer is a merchant, a legal entity under public law or a special fund under public law.

      IV. seminars and courses (events)

      1. General: The price includes the visit to the event, the materials distributed, as well as lunch and drinks during breaks. The costs for overnight stay and journey to the event will be charged separately. The provider supports seminar and course participants in reserving overnight accommodation. Billing is carried out directly by the participant with the respective hotel.

      2. copyright: The events of the provider are designed for the employees of companies and not for private persons. All materials may be used by the companies sending their employees to the Supplier's events, either unchanged (with the Supplier's logo) or, in the case of modified documents, with a clearly visible reference to the Supplier.

      3. the use of the materials for use in third party companies against payment or free of charge is expressly excluded. Any use in this respect is only permitted with the written consent of the provider.

      4. Cancellation: Free cancellation is possible up to four weeks before the start of the event. Since it is very difficult to re-allocate seminar places that become available at short notice, we must charge 50% of the seminar fee and the hotel accommodation costs (less the hotel savings if the service is not consumed) for cancellations up to one week before the start of the seminar and 100% for cancellations at a later date. Cancellations must be made in writing.
      In the event of cancellation of a registered participant, however, you have the right to nominate a substitute participant from your company at no additional cost up to the first classroom training.

      For training packages that include an online training day, a free cancellation of the online training is only possible before the first use of the XIMES Academy. After that, the online training day can no longer be cancelled. However, the above cancellation conditions still apply to the class training days of the training package.  Please note, however, that in the case of spare participants, completion of the online training day is required before the first classroom training.