General Terms and Conditions of ARiiVA GmbH

Last updated: July 21, 2021

1. Validity
1.1 The following General Terms and Conditions (in short "GTC") apply to all purchase contracts between ARiiVA GmbH (FN 569202 m, Lorcher Straße 2a, 4470 Enns, Austria; hereinafter referred to as "ARiiVA") and a consumer or entrepreneur (in short "contracting party" according to KSchG §1) in the version valid at the time of the conclusion of the contract.

2. Scope
2.1. Die gegenständlichen Regelungen gelten für entgeltliche und unentgeltliche Vertragsabschlüsse mit ARiiVA. Unter letztere fallen z.B. Pilotierungen, Proof of Concepts sowie Leihstellungen zu Testzwecken. Die Regelungen gelten gleichermaßen für Rechtsgeschäfte, die direkt mit Kundenbetreuern abgeschlossen wurden, als auch für Rechtsgeschäfte, die über eine Webseite abgeschlossen wurden, die zu ARiiVA gehört (www.ariiva.at). Ferner gelten etwaige zusätzliche Individualvereinbarungen, sofern diese zwischen den Vertragsparteien schriftlich vereinbart wurden. Etwaige kundenseitige Allgemeine Geschäftsbedingungen werden seitens ARiiVA nur anerkannt, sofern ARiiVA diesen explizit schriftlich zugestimmt hat.
2.2 In addition to the present document, reference is expressly made to applicable EULA documents (End User License Agreements) for ARiiVA software products. The respective EULA document is available on the website of the respective software product or on download portals of third party providers (App Stores).
2.3 ARiiVA reserves the right to change the GTC, price lists and other applicable documents at any time. In case of changes, Customers will be notified in writing. They will be granted an objection period of four (4) weeks from receipt of the notification of change. If no written objection is received, ARiiVA will assume that the Customer has accepted the changes in full. In case of an objection ARiiVA reserves the right to terminate existing customer contracts with a notice period of three (3) months, whereby the previously valid contractual provisions shall apply for the remaining notice period.

3. Contractual conditions for software orders
3.1 ARiiVA's scope of products and services consists of cloud-based software services (Software as a Service, "SaaS") and associated downloadable programs that can be executed on mobile devices (Apps). Both are subsequently referred to as ?software?
3.2 Unless otherwise agreed between the Customer and ARiiVA, these GTCs shall apply analogously to order-related developments as well as to modification services performed on standard software products ("Customizing").
3.3 ARiiVA reserves the right to continuously develop the Software Products and SaaS Services in order to follow and comply with the current state of the art. The contracting party acknowledges that this continuous development process may result in incompatibilities with older hardware and software systems that are to be used by the contracting party for a longer period of time. This applies in particular but not exclusively to browser programs, display systems with lower resolutions than required and network components that no longer support common security standards.
3.4 As far as basic functionalities of software products or services are not affected, ARiiVA may make changes without prior notice.
3.5 ARiiVA will inform the contracting party at least two weeks before the update if fundamental functional changes are made by software updates that may significantly affect software-supported workflows of the contracting party.
3.6 ARiiVA will inform the contracting party at least four weeks before the update if software updates result in the loss of basic functions that may significantly affect the contracting party's software-supported work processes.
3.7 ARiiVA reserves the right to block access to ARiiVA Services if the contracting party demonstrably violates provisions arising from these GTC or agreed in writing in individual contracts.
3.8 Unless otherwise agreed in individual contracts, the other party and ARiiVA shall enter into a software subscription for one (1) year, with automatic renewal at the then current prices, as long as the other party does not terminate the subscription with ARiiVA in writing. The other party may terminate the subscription up to the last day of the month three months prior to the expiration of the subscription.
3.9 Termination of the contract must be communicated to ARiiVA by a clear declaration (e.g. by letter to ARiiVA GmbH, Lorcher Straße 2a, 4470 Enns, Austria or via e-mail to office@ariiva.com). In case of termination by mail it is sufficient to send the notice of termination on the last day of the month (postmark).
3.10. ARiiVA reserves the right to terminate contractual relationships prematurely, if the contracting party demonstrably uses the ARiiVA Software outside the intended purposes, if there is an important reason for the termination or if the contracting party is more than 45 days in arrears.
3.11. By entering into a contract with ARiiVA, the contracting party obtains a non-exclusive, non-transferable and non-saleable or transferable right to use the ARiiVA Software for the duration of the contractual relationship. All trademark rights, intellectual property as well as patents remain with ARiiVA.
3.12. Resale as well as sublicensing is generally prohibited unless other provisions have been agreed in individual contracts (e.g. for reseller and commercial agent contracts).
3.13. The exact scope of services of a software product as well as promised server capacities (access numbers, storage quantities) shall be described in order and order confirmations or shall be the content of written individual contracts.
3.14. The contracting party has no legal claim to new software developments which contain additional scopes of services outside the offered product maintenance, e.g. additional modules, unless otherwise agreed in individual contracts. ARiiVA offers licenses for such additional scopes of services either directly or via resellers to the contracting party.

4. Data Protection
4.1. ARiiVA collects and stores personal data from users only to the extent required by legal and business obligations (legitimate interest) and insofar as this is necessary to provide or fulfill contractually guaranteed services.
4.2 To the extent applicable and necessary, ARiiVA shall act as a processor within the meaning of the EU General Data Protection Regulation. For this purpose, the contracting party may conclude a separate contract for commissioned processing with ARiiVA.
4.3 If the contracting party processes or stores personal data of third parties in ARiiVA Software products, the contracting party confirms that it has acquired such data in accordance with the EU Data Protection Regulation as well as the Austrian Data Protection Act and that it is authorized to store such data in ARiiVA Software.
5. Obligations of the contracting party
5.1 Any unauthorized modification in or to ARiiVA Software Products is prohibited, unless otherwise agreed in writing with ARiiVA.
5.2 It is the sole responsibility of the contracting party to keep its own IT systems up to date and to create regular data backups (ARiiVA points out in this context that customer data will not be stored for longer than 30 days after software subscriptions expire).
5.3 The contracting party undertakes to use ARiiVA Software only within the scope of its intended use. It shall inform employees and any third parties in this respect if they also use ARiiVA products or services in the course of the business activities of the contracting party.
5.4 If no own password is assigned at the time of registration or download, the contracting party will receive the access data to the software product or SaaS service from ARiiVA or a reseller authorized by ARiiVA. All user names and passwords shall be changed by the contracting party to its own secure passwords.
5.5 The contracting party shall inform ARiiVA without undue delay if there is any suspicion that the contracting party's access data may have become known to unauthorized persons or groups of persons.
5.6 The contracting party undertakes not to override any protective mechanisms with the aim of copying (reverse engineering) or otherwise using ARiiVA Software or parts thereof. Also prohibited is the derivation of other works based on ARiiVA Software as well as a de-compilation or reduction of software components to a human readable form.

6. Contractual conditions for software orders
6.1 The presentation of goods in a web store operated by ARiiVA does not constitute a legally binding offer to enter into a contract, but is to be understood as a non-binding invitation to the contracting party to order goods. When ordering goods, the contracting party makes a binding offer to conclude a purchase contract. In case of the conclusion of a contract via an ARiiVA webshop, the contract is concluded with the sending of an order confirmation by ARiiVA.
6.2 The contracting party makes a binding offer to enter into a contract by successfully completing the order procedure provided in the webshop. After that ARiiVA confirms the receipt of the order immediately by an automatically generated e-mail (ARiiVA order confirmation). Your order data will be securely stored electronically on our servers, but will no longer be accessible via the Internet for security reasons.
6.3 The prices stated in our webshops are in EURO including statutory VAT and other price components. Any shipping costs as well as customs or other import duties shall be added.
6.4 Customers have the possibility of payment by means of payment methods offered in the respective web store (usually bank transfer, credit card and PayPal).
6.5 The delivery of the ordered goods is carried out by shipping and logistics service providers. The costs of shipping shall be borne by the contractual partner.
6.6 The ordered goods remain the property of ARiiVA until full payment of the purchase price.
6.7 Unless otherwise stated in the product description, the delivery of the ordered goods shall take place within 7 working days, with the deadline for delivery starting on the day after the order confirmation is issued. If the deadline falls on a Saturday, Sunday or public holiday at the place of delivery, the deadline ends on the next working day.
6.8 For deliveries that do not include goods ready for dispatch (e.g. for goods that have to be programmed, parameterized or converted before delivery) the contracting party will be informed about the planned delivery.
6.9 Obvious damage suffered by parcel deliveries during delivery must be documented in writing by the contracting party or by the deliverer and reported to ARiiVA within 7 working days from receipt of the parcel.

7. Right of withdrawal for orders of goods (B2C business)
7.1 Consumers (B2C business) have the right to withdraw from the contract within fourteen days without giving any reason, the withdrawal period being 14 days from the day on which the consumer or a third party designated by him, who is not the carrier, has taken possession of the goods.
7.2 Withdrawals from the contract must be communicated to ARiiVA by clear declaration (e.g. by letter to ARiiVA, Lorcher Straße 2a, 4470 Enns, Austria or via e-mail to office@ariiva.com). In order to meet the deadline, it is sufficient that consumers send the notice of the exercise of the right of withdrawal before the expiry of the withdrawal period.
7.3 If consumers make use of the right of withdrawal, ARiiVA will confirm receipt of the withdrawal via e-mail as soon as possible.
7.4 If a contract is revoked, ARiiVA shall return all payments already received from the consumer at the latest within 14 working days from the day ARiiVA has received the notice of revocation.
7.5 ARiiVA reserves the right to refuse refunds until the goods have been returned to ARiiVA or the consumer has provided proof that the goods are in transit.
7.6 Descriptions of goods and illustrations of goods in online stores operated by ARiiVA are to be understood as exemplary. Color deviations and/or minor size differences between delivered goods and their illustration on the internet are possible. However, these do not entitle the contracting party to a complaint.

8. Exclusion of the right of withdrawal for services
8.1 There is no right of withdrawal for services, if ARiiVA has already started the execution of the service before the expiry of the withdrawal period at the request of the other party and the service has already been completely rendered. If the client makes use of his right of withdrawal while the service is still being provided by ARiiVA, the services provided until then will be charged according to the currently valid or agreed hourly rate. In case of lump sum offers, the services rendered until the revocation will be charged aliquot in relation to the total amount in terms of time or content.

9. Limitation of liability
9.1 ARiiVA excludes any warranty and liability, unless otherwise provided for in mandatory consumer protection provisions or unless otherwise agreed in written individual contracts.
9.2. ARiiVA always develops its products and services on the cutting edge of technology. This applies in particular to security-relevant aspects with regard to encryption technologies and data storage in server landscapes that are generally recognized as secure (this applies in particular to Microsoft cloud services).
9.3. Users acknowledge that, particularly in the area of ​​software development, a completely error-free product version cannot be achieved.
9.4. ARiiVA does not guarantee uninterrupted service uptime. In the case of product updates, users are informed in advance of any downtimes in an appropriate lead time.
9.5. During planned unavailability of ARiiVA software services (SaaS) there is no legal claim on the part of the user to compensation for failure or damages.
9.6. Users acknowledge that connection problems during data synchronization can lead to data loss, but that this is not causally related to ARiiVA or a software product offered by ARiiVA. The same applies to operating problems in handling ARiiVA products or system incompatibilities with user computer systems.
9.7. In any case, ARiiVA's total liability in cases of gross negligence is limited to the net order value (net sales per product license). The existence of gross negligence on the part of ARiiVA must be proven by the user.
9.8. Likewise, there is no negligence on the part of ARiiVA in connection with damage that was not caused directly by ARiiVA's services and products, but rather through failures or defective software parts (code parts) in third-party products on which ARiiVA products and services are based.
9.9. ARiiVA is liable for slight negligence and compensation for consequential damage, pure pecuniary damage, indirect damage, loss of production, financing costs, costs for replacement energy, loss of energy, data or information, lost profit, unrealized savings, loss of interest and damage claims by third parties against the user are excluded.
9.10. Any claims for damages are to be asserted in court by the user in the event of any other loss of claims within 7 years of delivery, unless the applicable statutory period ends earlier or longer periods are mandatory. This liability clause is also effective for all employees, subcontractors and subcontractors of the user and relates to the liability on the part of ARiiVA for every legal reason.
9.11. ARiiVA assumes no liability for late deliveries and services that arise from circumstances beyond the control of ARiiVA. This includes events that arise due to force majeure but also, for example, delivery delays by suppliers and / or subcontractors.

10. Terms of payment, information obligations
10.1 Unless otherwise stated, offer and invoice amounts are net prices exclusive of value added tax as well as any customs duties and other levies. Unless otherwise agreed in writing, the customer shall not be entitled to any discount deduction.
10.2 Recurring payments (software subscriptions) are generally invoiced at the beginning of a billing period.
10.3 Any additional costs that ARiiVA cannot estimate at the time of the order shall be borne by the other party (e.g. bank charges, etc.).
10.4 If the contracting party does not object to the invoice within a period of two (2) weeks from receipt thereof, the invoice shall be deemed accepted in terms of amount and content.
10.5 Contracting parties may not set off their claims against ARiiVA's claims. Likewise, any right of retention is excluded, unless otherwise provided by mandatory consumer protection provisions.
10.6 In case of overdue invoices ARiiVA reserves the right to add a late payment surcharge in the amount of seven (7) percent per annum. Any costs for legal representation and collection proceedings shall be borne by the other party.
10.7 ARiiVA sends legally binding documents (invoices, reminders, contracts, other documents) electronically to the contracting party. If the contracting party does not explicitly request another delivery method, ARiiVA shall consider these documents as delivered.

11. Applicable Law, Place of Performance, Written Form
11.1. Unless there are other mandatory legal provisions to the contrary, Austrian law is exclusively applicable. The application of UN sales law is expressly excluded.
11.2. For services, the place of performance is generally the headquarters of ARiiVA, unless other provisions have been agreed in writing with ARiiVA.
11.3. For SAAS products and software services, the place of performance is the first connection point to the Internet in the respective data center where the ARiiVA product or service is hosted.
11.4. In the event of a dispute, users undertake to make every effort to reach an out-of-court settlement. If this is not possible, the place of jurisdiction is the competent court at the headquarters of ARiiVA (Regional Court Steyr).
11.5. Changes or deviations from the terms of use must be made in writing. This also applies to the lifting of the writing requirement.

12. Confidentiality
12.1 The other party shall not disclose any information to be treated as confidential that has come to its knowledge in the course of the business relationship with ARiiVA or use such information without ARiiVA's prior written consent. This includes in particular information expressly designated as confidential and such information whose confidentiality clearly results from the circumstances of the transfer.

13. Severability Clause
13.1. Should a provision in this user agreement be or become invalid, the validity of the other provisions remains unaffected. The contractual partners will replace the invalid provision with a valid provision that comes closest to the provision to be replaced economically and legally.