General Terms and Conditions for the Sale of Software and Hardware and the Provision of Services by KiwiSecurity Software GmbH, Vienna, Austria (hereinafter “KiwiSecurity”)
§ 1 Scope and Contractual Acknowledgement of Terms and Conditions
1. KiwiSecurity delivers products and provides services only pursuant to the general terms and conditions set forth herein, except to the extent they are modified or rendered inapplicable by an express written agreement with KiwiSecurity. These terms and conditions also apply to all future business relationships and are accepted by the customer by submission of its purchase order or, at the latest, upon receipt of KiwiSecurity’s product or service.
2. Any purported amendments to, or modifications of, KiwiSecurity’s terms and conditions, including, without limitation, those which may be included in customer’s purchase order, are invalid unless expressly accepted by KiwiSecurity in writing.
§ 2 Offers and Agreement
1. Quotes, contractual documentation or price lists provided by KiwiSecurity are non-binding, unless expressly stated otherwise by KiwiSecurity.
2. Purchase orders submitted to KiwiSecurity will become binding only if accepted by KiwiSecurity in writing (order confirmation). KiwiSecurity may also accept purchase orders by way of delivery and invoicing. Amendments, modifications or additional terms, which are included in KiwiSecurity’s order confirmation, if any, are deemed accepted by customer if the customer does not object in writing within 5 days of receipt thereof.
3. Drawings, images, dimensions and any other product or service descriptions are approximations only and shall not be binding unless expressly confirmed in writing.
4. KiwiSecurity’s employees are not authorized to enter into verbal agreements which modify or amend the present terms and conditions or any written agreement between the parties.
§ 3 Prices and Taxes
1. Purchase orders for products and services, for which no fixed prices are agreed in writing, shall be fulfilled at KiwiSecurity’s list prices in effect on the date of delivery or service provision. Unless otherwise agreed, all prices are ex works including normal packaging (if applicable).
2. All prices, license, service or other fees quoted by KiwiSecurity are non-binding and are exclusive of customs duties, taxes or levies of any kind. Customer shall be responsible for all customs duties, taxes and levies. To the extent applicable tax laws require customer to deduct or withhold any taxes from its payment, it shall increase its payment by such an amount that, after such deduction or withholding, KiwiSecurity shall receive the amount agreed to in its quote or in a written agreement between the parties.
§ 4 Delivery, Risk and Title, Shipping, Freight
1. KiwiSecurity will normally deliver software by making it available for electronic download. Delivery and transfer of risk and title shall occur as soon as KiwiSecurity notifies the customer, by email or other means, that the software is available for download.
2. Unless otherwise agreed, physical goods (including software recorded on storage media) shall be delivered EXW (Incoterms 2010) from KiwiSecurity’s facilities. If KiwiSecurity offers shipping, the goods will be shipped to the customer address set forth on the quote or, in the absence of a quote specifying a shipping address, to the address specified by the customer on its purchase order and confirmed by KiwiSecurity. KiwiSecurity may choose the shipping method, route and carrier. All shipping costs and taxes shall be borne by the customer. Risk and title in the goods shall pass to customer as soon as they have been handed over to the carrier.
§ 5 Time of Delivery
1. Any times and dates of delivery given by KiwiSecurity are non-binding, unless expressly agreed otherwise. Delivery is subject to correct and timely delivery to KiwiSecurity by its own suppliers.
2. Any delivery time agreed between the parties in writing shall start on the day the order confirmation is dispatched and ends on the day on which the goods leave KiwiSecurity’s warehouse, except if a fixed delivery date has been agreed in writing.
3. If the customer asks for amendments of, or additions to, its original purchase order, any delivery time only starts upon acceptance of such amendments or additions by KiwiSecurity.
4. If KiwiSecurity agrees a binding delivery time or delivery date in writing, but subsequently fails to meet the agreed time or date, customer may rescind its purchase only after having allowed a reasonable period of at least 14 additional days for late delivery.
5. KiwiSecurity may make partial deliveries or render partial services at any time.
§ 6 Retention of Title
1. Any goods shall remain KiwiSecurity’s property until, and title shall pass to customer only when, any and all payables howsoever arising (whether now or in the future) have been fully and finally settled.
2. In the event of any third party attempting to take possession or seize goods in which KiwiSecurity retains title, customer shall notify such third parties immediately about KiwiSecurity’s rights and notify KiwiSecurity at the same time.
§ 7 Maintenance and Support
If customer purchases KiwiSecurity Maintenance and Support from KiwiSecurity, such maintenance services shall be exclusively governed by KiwiSecurity’s separate Maintenance and Support Terms and Conditions.
§ 8 Software License
Customer’s use of any software delivered or made available by KiwiSecurity shall exclusively be governed by the End-User License Agreement embedded in, or shipped together with, such software. Customer undertakes to comply with the terms of this End-User License Agreement.
§ 9 Warranty
1. For any software delivered, KiwiSecurity warrants that, during a period of 90 days, the software shall have materially the functionality generally described in the user documentation and that the medium on which the software is shipped (if any) shall be free from material defects. For any hardware delivered by KiwiSecurity, KiwiSecurity shall assign any warranty rights it may have against the hardware vendor, to customer.
2. Other than as expressly set forth above, all warranties are excluded to the maximum extend possible by law.
3. Upon delivery of the goods, customer shall check them carefully and notify KiwiSecurity of any defects in writing without delay.
4. KiwiSecurity’s only obligation in case of any warranty claim concerning software shall be, at KiwiSecurity’s choice, to either (i) remedy the defect or (ii) refund the license fee. Customer shall not have any other or additional warranty claims.
5. Any warranty or related claims shall be time-barred at the latest one year after the date of delivery.
§ 10 Limitation of Liability
1. KiwiSecurity’s liability shall be excluded except in the case of intentional misconduct (Vorsatz) or gross negligence (grobe Fahrlässigkeit). In any case, KiwiSecurity’s aggregate liability shall be limited to the amount of the relevant purchase order or the amount of €10,000 per incident, whichever is lower. Under no circumstances shall KiwiSecurity be liable for indirect or consequential damages, lost profits, third party claims or pure financial losses (reine Vermögensschäden). Moreover, KiwiSecurity’s liability for loss or destruction of data is excluded unless customer has ensured by taking appropriate precautions (such as data back-ups) that any such data can be restored with reasonable effort from a machine-readable data source.
2. Customer’s damage claims under this Section 10 shall be timed-barred one year after the damage has occurred.
§ 11 Holdback, Set-Off
Customer may not refuse the performance of its obligations or hold back any payments on account of alleged counterclaims, nor may customer set-off any claims against such counterclaims.
§ 12 Force Majeur, Strike
1. If KiwiSecurity’s ability to fulfill its obligations is affected by unforeseeable unsual circumstances (e.g. interruption of operations, government action, lack of supply materials, interruption of energy supply, strike or lock-out), and KiwiSecurity is unable to avert these cirumstances despite applying due care, any firm delivery date shall be extended, regardless if these cirumstances have occurred in KiwiSecurity’s operations or any of its suppliers, and KiwiSecurity shall be free from any obligation if its fulfillment has become impossible due to any of the foregoing circumstances.
2. KiwiSecurity shall notify customer of the occurrence of any of the circumstances described above and their foreseen duration as soon as possible.
3. The customer is not entitled to damage claims in case any delivery times are extended or KiwiSecurity is free from its obligations in accordance with this Section 12.
§ 13 Export Controls
Customer understands and acknowledges that the products or work results which KiwiSecurity may make available under this agreement are governed by the export control laws of the European Union and its Member States. Further, customer agrees that KiwiSecurity voluntarily adheres to the export control laws of the United States of America. Customer undertakes not to disclose, export or re-export any products or work results delivered by KiwiSecurity, directly or indirectly, to any countries or any person which may not receive such products according to the laws or regulations of the EU and/or USA. The customer is responsible for (a) complying with such laws and regulations, and (b) monitor the same for any changes.
§ 14 Delay in Acceptance
If customer delays acceptance of the goods, KiwiSecurity may rescind the contract upon giving at least 2 weeks‘ prior notice. In this case, KiwiSecurity may also sell the goods otherwise and is entitled to damages for breach of contract.
§ 15 Payment Terms
1. Unless otherwise agreed in writing, all invoices are due for payment net of any deductions within 14 days of the invoice date. In case of late payment, KiwiSecurity may demand default interest of 12% per annum.
2. KiwiSecurity may allocate any payments received to older debts first, then to costs and interest, and finally to more recent debt.
3. If customer fails to meet its payment obligations, in particular if it does not honor a check or stops its payments, or if KiwiSecurity otherwise learns about circumstances which raise doubts about customer’s creditworthiness, then KiwiSecurity may accelerate any open payables, demand securities for any open payables, or require advance payment for any future purchase oders.
4. Customer shall bear any costs of transferring the invoice amount to KiwiSecurity’s bank account.
5. Checks, bills of exchange or other securities are only accepted subject to receipt of payment (erfüllungshalber).
§ 16 Assignment
KiwiSecurity may assign any or all of its rights and obligations under any contracts incorporating the present terms and conditions, as well as these contracts as a whole, to its affiliated entities without customer’s consent. Moreover, KiwiSecurity may assign rights and obligations as well as contracts as a whole to any third parties who acquire a part or all of KiwiSecurity’s assets.
§ 17 Independent Parties
The parties are independent contractors. The parties do not enter into any partnership, joint venture, or similar relationship. No party is entitled to represent the other party. Each party may only direct, supervise and manage its own personnel. One party’s employees are not part of the other party’s operational or labor organization at any time.
§ 18 Severability
If any part of these terms and conditions is or becomes unenforceable, the other parts shall remain unaffected thereby.
§ 19 Governing Law and Venue
1. The courts of Vienna shall be the exclusive venue for any disputes arising out of, or in connection with, these terms and conditions and any contracts incorporating them, including any disputes about their validity or enforceability. However, KiwiSecurity may also file any claims before any other statutory venue.
2. These terms and conditions and any contracts incorporating them shall be governed by, and construed in accordance with, the laws of Austria without regard to its conflict of law rules and without regard to the Vienna Convention on the Sale of Goods.
ADDITIONAL TERMS AND CONDITIONS FOR PROFESSIONAL SERVICES
Any services offered or provided by KiwiSecurity, which are not included in a KiwiSecutity Maintenance program as set forth in Section 7 above, shall be governed by Sections 1 through 19 above mutatis mutandis. In addition, the following special terms and conditions shall apply:
(a) Services. KiwiSecurity provides to the customer, and the customer acquires, the services described in KiwiSecurity’s quote and/or detailled in a scope of work description (hereinafter „Services“). KiwiSecurity shall provide the Services at the location and in accordance with the time schedule as shall be set forth in the scope of work.
(b) Fees, Expenses. Unless KiwiSecurity’s quote expressly provides for a fixed fee, KiwiSecurity’s fees shall be determined in accordance with its standard daily rates for the relevant consultants as the same may be in effect at the time of service provision. If KiwiSecurity quotes a fixed fee, this fee shall include the costs of labor but exclude the costs of any materials or expenses. In addition, customer shall reimburse KiwiSecurity’s reasonable travel expenses. KiwiSecurity’s fees shall become due without requiring a formal acceptance of the Services.
(c) Limited Warranty. KiwiSecurity warrants that the Services shall be provided with reasonable competence and care using qualified personnel or subcontractors. In case of breach of warranty, customer’s only remedy shall be that KiwiSecurity shall undertake reasonable efforts to replace any unqualified employee or subcontractor by a qualified resource. EXCEPT AS PROVIDED IN THIS PARAGRAPH, KIWISECURITY DOES NOT ASSUME ANY EXPRESS OR IMPLIED WARRANTY.
(d) Ownership of Work Results. Any intellectual property rights in all work results created while performing the Services shall remain vested in KiwiSecurity. Unless otherwise agreed in writing, KiwiSecurity grants customer a non-exclusive, non-transferable right to use such work results as described in the scope of work, for its own internal business purposes. In no way shall this agreement limit KiwiSecurity’s right to (re-)use concepts, techniques and know developed by KiwiSecurity in connection with the Services.
(e) Customer Cooperation. In addition to any customer obligations which may be set forth in the scope of work, customer shall support KiwiSecurity to the extent this is reasonable, necessary and useful. In particular, customer shall:
(I) Provide a reasonable working environment, including sufficient working space, storage space for materials as well as access to customer employees, documents and facilities, as may be required for the provision of the Services.
(II) Identify and empower an employee to coordinate the project and delivery schedule of the Services with KiwiSecurity, and to procure any resources which may be identified in the scope of work.
(III) If necessary, provide KiwiSecurity consultants with a hardware and software environment that is configured appropriately for the Services.
(IV) In the case of trainings, provide a training room, computer and related equipment for use by KiwiSecurity consultants.
(V) Take reasonable measures to save, copy and protect customer’s data and programs at any time during the provision of the Services.
(f) Subcontractors. KiwiSecurity may appoint subcontractors or third parties with the performence of any or all of the Services.
(g) Confidential Information. The relationship between the parties may allow both parties access to certain information and material owned by the other party (hereinafter „Confidential Information“) including, without limitation, business plans, customer data, technologies and products, which are of considerable value for the other party and whose value would be affected if such information were disclosed to any third parties. The parties therefore agree not to disclose Confidential Information to any third parties and to take reasonable care to protect such Confidential Information. The provisions of this paragraph shall not apply to information which is (i) publicly disclosed without any breach by the party receiving the Confidential Information, (ii) lawfully disclosed by a third party who received Confidential Information without any confidentiality restrictions, (iii) independently developed by the employees of the receiving party without access to Confidential Information, or (iv) were already known to the party receiving the Confidential Information at the time of receipt, without any restriction of the use or disclosure of such information.
(h) Term and Termination. The service agreement concluded by these terms commences on the effective date specified in the scope of work (or, if no such date is specified, on the date of acceptance of KiwiSecurity’s quote) and ends after completion of the Services and payment thereof in full, unless terminated earlier in accordance with this paragraph (h).
If any party materially breaches its obligations under this agreement and fails to remedy such breach within five days of receipt of written notice specifying the breach, or if the customer fails to make any payment due, the other party may terminate this agreement in writing with immediate effect.
In case of any valid termination, regardless of its reasons, customer shall compensate any Services provided until the termination effective date by paying a proportion of the agreed fee which corresponds to the proportion of the Services provided until such date, as well as a time-and-materials fee based on KiwiSecurity’s then current standard daily rates to compensate for any pending and uncompleted work. If KiwiSecurity terminates this agreement due to a material breach by customer, customer shall also reimburse all costs which KiwiSecurity incurs as a result of terminating any employees, suppliers or subcontractors which KiwiSecurity may have engaged in connection with the Services, or as a result of renegotiating any related agreements.
Paragraphs (c), (d) and (e) of these Additional Terms and Conditions for Professional Services as well as Sections 6, 7, 8, 9, 10, 12, 13 and 19 of the General Terms and Conditions for the Sale of Software and Hardware and the Provision of Services shall survive termination of this agreement.