TERMS AND CONDITIONS

1.1. These general terms and conditions (hereinafter: GTC) apply to the formation, content and performance of all — including future — contracts between OBJECTBAY SOFTWARE GmbH  (hereinafter: “Objectbay”, “Contractor”) and natural persons, entrepreneurs, legal entities, legal entities under public law and special funds under public law (hereinafter: “Contracting Partner”, “Client”).

1.2. Objectbay's general terms and conditions are therefore considered agreed for all legal transactions. Objectbay provides its services exclusively on the basis of these terms and conditions. These also apply to all future business relationships, even if they are not expressly referred to.

1.3. The general terms and conditions can be viewed and accessed without restrictions on the Objectbay homepage at www.objectbay.com under the link “Terms and Conditions”.

1.4. Deviating terms and conditions of the contractual partner are hereby contradicted and are therefore not valid.

2.1. After expiry of the period specified in the offer, all offers from Objectbay are subject to change and without binding effect and only as an invitation to place an order. Agreements, orders, offers, orders, orders, order changes, cancellations, etc. made verbally, by telephone, by fax or by e-mail only become binding for Objectbay when they are confirmed in writing (order confirmation) or fulfilled by Objectbay. Confidentiality on the part of Objectbay does not constitute consent.

2.2. Obvious errors (e.g. spelling and calculation errors) entitle Objectbay either to cancel the contract or to make appropriate changes to the agreed prices and services.

2.3. Agreements by employees or other representatives of Objectbay, which are not expressly identified in writing for the conclusion of the contract or the submission of binding declarations of intent, require written confirmation by the persons authorized to represent Objectbay externally in order to be legally effective.

3.1. As a contractor, Objectbay develops and delivers individual computer software for the contractual partner as the client and provides software maintenance and support services for this software, the actual content and scope of the development, software maintenance and support services being defined in the individual contracts to be concluded with the contractual partner.

3.2. Objectbay develops individual software for the contract partner in accordance with the type and scope of the binding information, documents and tools provided correctly and completely by the contractual partner. This also includes practice-oriented test data and sufficient testing options, which the contractual partner provides on time, during normal working hours and at its expense.

4.1. The contractually agreed services for the development of custom software are provided by Objectbay through the use of appropriate software development teams. The software development team provided by Objectbay works according to the well-known agile software development method “Scrum”, where fixed, usually two-week time units — called “sprint” — are defined as work units. At the end of each sprint, a portion of the software to be developed is delivered (“Increment”).

4.2. The delivery model corresponds to a continuous provision of software increments, with the atomic unit being “sprints.” The services are charged either according to a time billing model (“Time and Material”), i.e. according to time spent on this, or as a consistent sprint lump sum. Objectbay must deliver the contractually agreed hourly sum per sprint and keep a record of which services were delivered in which period. These records must be made available to the contractual partner upon request.

4.3. Unless otherwise agreed, the software is developed on Objectbay's infrastructure and transferred to the contract partner's infrastructure for production.

4.4. Objectbay's business premises at its headquarters are defined as the place of performance.

5.1. The software is delivered by handing over the machine-running program and documentation to the contractual partner by handing over data carriers, reading it into the computer or by transmitting data remotely. Physical objects (software, data carriers, goods, documentation, etc.) are shipped at the expense and risk of the contractual partner.

5.2. Contractually agreed delivery deadlines can only be met by Objectbay if the contractual partner correctly and completely provides all necessary work, employees and documents on the dates specified by Objectbay and fulfills its obligation to cooperate to the required extent.

5.3. Delivery delays and cost increases resulting from a breach by the contractual partner of these obligations are not attributable to Objectbay and do not result in Objectbay's default. The contractual partner bears the resulting additional costs.

5.4. Any unforeseen circumstances and any case of force majeure on Objectbay or Objectbay's suppliers that impede, delay or make impossible the timely delivery of the object of the contract by Objectbay, such as administrative measures, war, fire, lockout or strike, lack of materials, operational or transport disruptions, refusals of delivery by upstream suppliers, lack of raw materials, etc., as well as other circumstances beyond Objectbay's control are due to Objectbay is not responsible. Such circumstances either entitle Objectbay to withdraw from the contract in whole or in part or to postpone the delivery date appropriately, at least for the duration of the hindrance.

5.5. Objectbay is only in default as a result of a reminder from the client. All reminders and deadlines set by the client must be made in writing to be effective. Deadlines must be at least twelve working days.

6.1. The work results include the business data collections (databases, graphics, multimedia applications, etc.) and data processing programs in sources and object form resulting from Objectbay's activities in planning, development, research, system consulting, maintenance or administration, as well as the processes, specifications, reports and documentation and training material on analysis, design, testing, installation, use and maintenance of data collections and data processing programs.

6.2. Objectbay grants the contractual partner the exclusive, worldwide and unlimited right to use, process, exploit and further license all work results resulting from Objectbay's activities for the contractual partner, as well as the software, without any restriction, in particular, the contractual partner acquires all property and intellectual property rights.

6.3. Objectbay uses open source and free software. All those parts of the software that were developed from open sources (“open source”) or based on open source software are subject to any rights of third parties and are therefore not part of the established exclusive granting of rights. Objectbay will mark these parts of the delivered software as such or include the respective license terms when integrating open source software.

6.4. The granting of rights is automatic upon full payment of the service by the contractual partner to Objectbay. No further consent from Objectbay is required to exercise these rights.

6.5. Objectbay guarantees that it has all rights to the work results that are necessary to grant the contractual partner the agreed exploitation rights and that the rights of the contractual partner do not conflict with the rights of third parties. Otherwise, the contractual partner may withdraw from the contract after setting a written deadline with threat of termination, unless Objectbay provides him with legally correct use of the software in accordance with the contract within a reasonable period of time.

6.6. Objectbay will, at its own expense, defend claims made by third parties against the contractual partner due to infringement of property rights resulting from Objectbay's deliveries and services, unless such claims are based on the conduct of the contractual partner. The contractual partner may not accept such claims on its own initiative, otherwise it loses its claims against Objectbay. The contractual partner authorizes Objectbay, insofar as legally possible, to take on the dispute with the third party in and out of court and will immediately take all necessary acts and omissions in this regard, in particular a notice of dispute in accordance with Section 21 ZPO. The contractual partner must immediately, in writing and comprehensively inform Objectbay of claims made by third parties. If claims arising from the infringement of property rights are made for which Objectbay is responsible, Objectbay may change, replace the software or obtain a right of use at its own expense. The contractual partner agrees to provide Objectbay with appropriate assistance in defending alleged claims by third parties.

7.1. At its own expense, the contractual partner must ensure the working environment of the software (e.g. hardware, operating system, etc.) in accordance with Objectbay's requirements. He must also comply with and implement the requirements in the documentation.

7.2. The contractual partner must support Objectbay in fulfilling the order to the extent required free of charge, e.g. by providing employees, workrooms, hardware and software, data and telecommunications equipment and participating in specifications, tests, approvals, Scrum meetings, etc. He must grant Objectbay access to the hardware and software directly or by means of remote data transmission in the event of a defect being corrected. In this context, Objectbay will protect the client's essential interests, in particular also comply with data protection. If easy technical access through telecommunications equipment is not possible or permitted, the client shall bear all adverse consequences resulting from this. Agreed appointments will be extended for the period during which access is not possible or permitted and for a subsequent appropriate start-up period.

7.3. The client must take appropriate precautions (e.g. through data backups, fault diagnosis, etc.) in the event that the software does not work properly in whole or in part. Objectbay assumes no liability for disadvantages, of any kind, that the contractual partner may incur as a result of failure to take such measures.

8.1. All prices quoted by Objectbay are in EUROS plus statutory value added tax at the rate prescribed by law. The price valid at the time the contract is concluded with the contractual partner.

8.2. The invoice is settled at the end of each sprint with a payment term of 14 days from the date of the invoice. No discount is granted.

8.3. In the event of late payment and deferral, Objectbay charges annual interest at least in the statutory amount (Section 456 UGB, Section 1333 Paragraph 2 ABGB). Appropriate and necessary costs incurred as a result of late payment, such as reminders, collection attempts, storage costs and any judicial or extrajudicial attorneys' fees, must be reimbursed in full by the contractual partner. Should Objectbay claim additional interest as a result of a required borrowing, it is also entitled to demand this from the contractual partner. Objectbay is entitled to charge additional interest in the amount required by its banks for loans.

8.4. Payments are to be made exclusively to Objectbay and only have a debt-relieving effect if payment is received by Objectbay. Payments made by the contractual partner to representatives or third parties without Objectbay's consent have no debt-relieving effect on the contractual partner.

8.5. If the contractual partner is in default of Objectbay with a payment obligation required from the contractual relationship or with another payment obligation, including from previous legal transactions, Objectbay is — without prejudice to other rights — entitled to cease its obligation to perform until payment by the contractual partner and/or make use of an appropriate extension of the delivery period, to make due all outstanding claims arising from these or other legal transactions or to discontinue its own services, securities to demand and Reclaim any software that has been delivered without this releasing the contractual partner from its performance obligation.

8.6. Objectbay only withdraws from the contract as a result of these acts if Objectbay expressly declares the withdrawal to the contractual partner.

8.7. Should the financial circumstances or creditworthiness of the contractual partner deteriorate, Objectbay is entitled to demand advance payments in order to execute the order or to make the fee due immediately.

8.8. The contractual partner is not entitled to assert withholding or other refusal of performance rights or to offset them against counterclaims, unless these are claims expressly recognized in writing by Objectbay or established by a final court decision. The assignment of warranty and compensation claims or other claims against third parties due by the contractual partner against Objectbay is prohibited.

8.9. Notwithstanding all other provisions of these terms and conditions, the subject matter of the contract remains the property of Objectbay in any case until full payment has been made. Objectbay reserves all other rights to the subject matter of the contract (e.g. programs, source code and documentation) until its claims under the contract have been fully corrected. If the contractual partner defaults in full or in part on its payment obligation, if there is over-indebtedness or suspension of payments, or if an application has been filed to open bankruptcy or restructuring proceedings, Objectbay is entitled to immediately seize all goods still subject to retention of title; the same applies in the event of any other significant deterioration of the contractual partner's economic circumstances.

8.10. The contractual partner must immediately notify Objectbay in writing of impending or current access by third parties to the reserved property, in particular in the event of attachment, and immediately inform the third party of Objectbay's rights without being asked. In addition, the contractual partner must immediately take all necessary defensive measures and provide Objectbay with all necessary assistance in defending such third-party claims.

9.1. Objectbay guarantees that the software fulfills the functions described in the associated documentation, provided that the software is used by the contractual partner in accordance with the applicable installation requirements and is used under the applicable operating conditions.

9.2. Objectbay guarantees that the software is not encumbered with third-party rights and that the rights to be transferred to the contractual partner under the contract to be concluded belong in full to Objectbay and that Objectbay's rights can be effectively transferred.

9.3. Defect is understood to mean (also) any malfunction and error in the software. A defect only exists if there are functionally disruptive deviations from the valid specifications. No warranty is provided for minor and/or insignificant defects or reductions; in particular, this applies to those defects which do not affect the agreed or usually assumed usability.

9.4. Objectbay also does not guarantee that the programs will work together in the selection made by the contractual partner, that they will run uninterrupted or completely error-free, or that all defects can be eliminated. Objectbay is also not responsible for a defect if the defect is based on the task specified by the client or the contractual partner's insufficient or incorrect obligation to cooperate or if the functions do not meet the contractual partner's requirements; the warranty is also void if the contractual partner makes or has made changes to the software on its own authority or has had them made by third parties. Furthermore, Objectbay assumes no liability for errors, faults or damage that are due to improper operation, changed operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, abnormal operating conditions, etc.

9.5. With regard to all deliveries and services provided by Objectbay, the contractual partner is obliged to examine and give notice of defects in accordance with Sections 377, 378 UGB. The contractual partner must make the complaint in writing with a detailed description of the problem/defect. Any malfunctions must be reported immediately and in detail by the contractual partner in writing.

9.6. The warranty includes fault diagnosis and repair. Objectbay supports the contractual partner in finding the defect and the cause of the defect. If the contractual partner cannot prove that the defect is attributable to Objectbay, Objectbay is entitled to invoice the contractual partner for the services it has provided in this regard.

9.7. The presumption of defectiveness in accordance with Section 924 ABGB is excluded.

9.8. The contractual partner's justified warranty claims are met primarily through improvement, which has priority over price reduction and conversion. Objectbay will choose to correct the defect, by making a corresponding change to the software, providing a new program version, by delivering new software or by Objectbay showing reasonable ways to avoid the effects of the defect. The contractual partner must provide Objectbay with appropriate support; in particular, any rectification of a defect requires Objectbay to receive all necessary documents and information from the contractual partner and that Objectbay is provided with unrestricted access to hardware and software during the normal working hours of the contractual partner. In any case, a new program version must be adopted by the contractual partner, unless this leads to unreasonable and unacceptable adjustment and conversion problems for the contractual partner.

9.9. The contractual partner may demand the conversion or price reduction only to the extent and only if Objectbay's (possibly multiple) improvement of the defect finally fails despite a reasonable grace period of at least 30 days set in writing.

9.10. Any claim for compensation for (attempted or successful) rectification of defects by the contractual partner himself or by third parties (compensation) against Objectbay is excluded.

10.1. Objectbay is liable to the contractual partner for the demonstrably caused by it only in the event of intent or gross negligence; liability for slight negligence is excluded in any case, with the exception of personal injury. The burden of proof that Objectbay acted intentionally or grossly negligently falls on the contractual partner. This also applies mutatis mutandis to damage caused by third parties brought in by the contractor.

10.2. Objectbay's liability for all claims of the contractual partner arising from or in connection with the concluded contract is limited to a total of €10,000, regardless of the legal basis, to the extent permitted by law.

10.3. To the extent permitted by law, Objectbay will in no case be liable for lost profit, expected but not realized savings, interest losses, damage arising from third-party claims against the contractual partner, indirect and subsequent damage, as well as for damage to recorded data, data losses, costs associated with a business interruption, etc.

10.4. Compensation claims by the contractual partner against Objectbay — regardless of the legal basis — expire at the end of one year from the date of knowledge of the damage and the person causing the damage.

10.5. Objectbay does not assume any protective effect in favour of third parties.

10.6. Any liability of Objectbay that goes beyond the provisions of these terms and conditions, regardless of the legal basis, is excluded.

11.1. Objectbay and the contractual partner commit themselves to treat all reciprocally received information that is expressly described as confidential and to use it only insofar as this is necessary to fulfill the order.

11.2. Objectbay will comply with the rules of data protection law. Objectbay is irrevocably authorized to save and process the data of contract partners with automated assistance to the extent necessary to fulfill the order.

11.3. The contractual partner undertakes to keep all business and trade secrets of Objectbay as well as all information relating to the subject matter of the contract, regardless of the type and content, as well as the content of the concluded contract, strictly secret.

12.1. In the event of a breach of essential contractual conditions, in particular a breach by the contractual partner of payment obligations, Objectbay may withdraw the contractual partner's rights of use at any time.

12.2. In this case, the contractual partner must immediately surrender all services, deliveries and copies to Objectbay and delete stored software. He must confirm his settlement in this regard to Objectbay in writing.

12.3. Upon ordinary termination of the contractual relationship (termination of the software development contract), Objectbay will unsolicited release all documents and work results received from its created programs or in connection with the contractual relationship, without withholding copies and delete any copies from other storage media.

13.1. Objectbay offers the contractual partner appropriate support and software maintenance services for the software developed by Objectbay after the development or acceptance of the software by the contractual partner has been completed.

13.2. The scope of support includes the receipt of inquiries reported by the contractual partner, telephone advice and/or advice by e-mail when using the software developed by Objectbay.

13.3. The software maintenance services include new versions (“updates”) of the developed software provided by Objectbay, if this is necessary to maintain the operational and functional capacity or as a result of a security or security update from the frameworks used by Objectbay.

13.4. The provision of software maintenance and support services requires the conclusion of a separate software maintenance and support contract between Objectbay and the contractual partner.

14.1. Other (service) services that are not covered by the express service descriptions of the contracts must be agreed and paid separately.

15.1. Objectbay guarantees the contractual partner that the software code developed by it is error-free for the duration of the company it operates.

15.2. This warranty is void if the contractual partner makes or has made changes to the software code on its own authority or makes or has had them made by third parties.

16.1. If fees, taxes or other charges are due in connection with the performance of a contract subject to these terms and conditions and/or in connection with the transfer of the subject matter of the contract, these — without prejudice to any joint liability in the external relationship — shall be borne by the contractual partner alone, who will hold Objectbay harmless and indemnified in this regard. The costs of the legally friendly representation are borne by the part of the contract that makes use of it.

17.1. Amendments, ancillary agreements, reservations and additions to these terms and conditions must be made in writing in order to be legally effective. This also applies to the agreement on the fulfilment of this formal requirement. It is stated that there are no additional oral agreements. All contractual agreements, contract amendments and additions must also be made in writing.

17.2. The contracting parties agree that agreements between the parties are also effectively concluded by signing and transmitting the original in the form of a PDF scan of the original or signing via DocuSign's electronic signature system. According to the wishes of the contracting parties, the signing made in this way should be considered a handwritten signature.

17.3. The place of fulfilment for all services and payments, namely by Objectbay and the contractual partner, is Objectbay's registered office in 4050 Traun.

17.4. The competent court for the City of Linz is agreed as the place of jurisdiction for all disputes arising from or in connection with the contract.

17.5. Austrian law is exclusively applicable to all legal transactions, in particular subject to these terms and conditions, to the exclusion of the referral and referral standards of international private law. The application of the UN sales law is mutually excluded.

17.6. If there is a consumer transaction within the meaning of Section 1 (1) Consumer Protection Act (KSchG) and mandatory provisions of the Consumer Protection Act preclude the effectiveness of individual provisions of these terms and conditions, it is considered agreed that the relevant mandatory standards of the Consumer Protection Act take the place of the GTC. However, all other provisions of these terms and conditions remain valid in full.

17.7. Should individual provisions of these terms and conditions be invalid in whole or in part, the remaining provisions shall remain effective. The invalid provision or to fill gaps will be replaced by another appropriate provision which, in terms of content and purpose of the invalid provision, comes as close as possible to what the parties would have wanted if they had considered this point.

17.8. As long as Objectbay is not made aware of another delivery address, deliveries of all types will be made to the last known address of the contractual partner with the effect that they are considered to have been received by the contractual partner.