Terms and conditions german
Terms and Conditions of Sale of Inari Software GmbH
(Amended on 08.01.2016)
- Scope, Definitions
The following terms and conditions (“Terms and Conditions”) apply to all business between Inari Software GmbH (hereafter: “Inari“) and the customer (consumers and businesses). Other general purchasing or customer terms and conditions are not part of the business relationship between the customer and Inari and the application of those other general purchase or business conditions are hereby expressly and fully rejected and the customer waives the application of its own general purchase or business conditions.
Customer within the meaning of general sales conditions is anyone who is in a contractual relationship with our company. A third party, within the meaning of this contract, is understood as those who are not in a contractual relationship with our company.
- Consumer transactions
Consumer transaction within the meaning of these terms and conditions is a legal transaction with a customer falling within the meaning of § 1 KSchG [Austrian Consumer Protection Act]. These are people for whom the business is not part of the operation of their enterprise.
- Differing conditions
Conditions (elements of the contract) deviating from the written form of the contract must be in writing (mail, fax, letter), but there must first be a written) confirmation order to be legally effective.
- General / Object of Service from Inari
Inari offers an Archaeological Information System (hereinafter referred to as “AIS”) with which data can be documented. The data contained in the AIS is entered exclusively by the customer and Inari cannot grant or pass on any usage rights to the data it contains. Only the customer can determine to which group of persons the data entered by the customer is made available. The AIS serves each particular customer only as an additional medium for storage, analysis and possible distribution (at his request) of the data entered by this customer. Inari does not guaranteed a specific result in terms of data analysis or storage, but the AIS offers an additional storage platform that facilitates the work related to archaeological excavations. Any liability of Inari for completeness, correctness and legality of the data entered by the customer and for the data quality itself is excluded.
- Subscription, service packages, cash advance
In order to gain access to the AIS, we offer our customers two different types of subscriptions.
On the one hand on our homepage there are temporary subscriptions, for which the entire subscription price for services must be paid in advance to Inari.
On the other hand there is the possibility of acquiring a temporary unlimited subscription for the use of AIS. In such a case the customer has to pay the monthly subscription price in advance to Inari at the beginning of each month.
If the customer purchases a subscription, Inari grants the customer the right to use the AIS, limited to the duration of the subscription. This temporary license is non-exclusive and non-transferable to third parties. The customer is only entitled to use the AIS for his own use.
Our subscriptions also contain various service packages (such as the use of additional third-party software). In order to use the AIS, the customer has to pay in advance the respective subscription price. Only after receiving the full subscription fee is customer access to the AIS activated.
In case the service package chosen by the customer is based on a monthly payment of the subscription price (and the subscription period is longer than one month), the customer agrees that the payment of the subscription is carried out exclusively through direct debit authorization by Inari.
- Third-party software – Provision of software
If the customer chooses a subscription with additional third-party software, a contract arises directly between the customer and the third party. Inari appears in this regard solely as an intermediary and provides all services in connection with the third-party software exclusively in accordance with the requirements of the applicable third party. The license and copyright laws applicable to the manufacturer and/or the supplier of the third-party software must be complied with by the customer. All related claims are to be asserted only against the third-party and any liability for the functionality of the software is excluded by Inari.
- Contract start
The contractual relationship between Inari and the customer shall be delivered by an order of subscriptions via the application https://ais.inari-software.com or the execution of a written contract in accordance with the contractual provisions specified therein, provided that the customer accepts in full these Terms and Conditions and Inari accepts the order in writing. There is no obligation of Inari to activate the user prior to the full payment of the subscription price.
- Consent to automatic data processing
The subscription management and customer registration and management is carried out at Inari by automated data processing. The customer gives his explicit consent that his data is to be stored and processed electronically within Inari. If the customer no longer agrees to this provision, he has to revoke his consent in writing (email, letter, fax) to Inari. In this case Inari is entitled to terminate without notice the contractual relationship at the end of the month in which consent was withdrawn.
- Termination of subscriptions, exclusion of regular termination at fixed-term contracts, period of notice in permanent contracts, termination options, termination waiver
The subscription period is limited, unless agreed otherwise in an individual contract. Regular termination of subscriptions during a running subscription period is excluded for fixed-term contracts. Termination for good cause shall remain unaffected. “Good cause” includes, but is not limited to, the breach of a duty based on these General Terms and Conditions by the customer.
In a permanent subscription the customer waives the termination of the contract for a period of six (6) months from execution of the contract. At the end of this period, a permanent subscription is terminable at the end of each month, subject to thirty (30) days prior notice.
After the end of the respective subscription period the customer will be blocked from accessing the AIS. Six weeks after the end of the subscription Inari is entitled, but not obliged, to permanently delete any content submitted by the customer to our database. The usage rights of this data will remain valid until deletion of the data. If the customer wishes the deletion of the data to occur at the end of the contract, he must inform Inari in writing. The data is only to be deleted by Inari if the preservation of the data is not in the interest of science (historical, archaeological, cultural, etc.) or the public and irreversible damage would occur through the deletion of this data. The public and scientific interest in the preservation of such data exists if it is confirmed by a recognized scientific institution (such as a domestic or foreign university). Inari is committed to the deletion of the data only by a legally binding order of a court or applicable public authority. In this case, the customer waives the assertion of a related claim for remuneration, settlement or compensation of damages for the period in which the data has not been deleted. .
- Data deletion in case of violations of the legitimate interests of third parties
Data affecting or infringing the legitimate interests of third parties (patents, copyrights, trademarks, etc.) or violating legal or official regulations, can be deleted irrevocably by Inari without prior notice to the customer.
- Intellectual property/usage rights
The intellectual property rights as well as any derivative rights to use the AIS, such as the acquisition of a particular image, design and other technical documents, as well as brochures, catalogues, samples and the like remain exclusively with Inari. During an active subscription period, only the customer is entitled to use the AIS, and the use by third parties or other customers (sublicensing) as well as any disclosure or transfer of usage rights to a third party or other customers without the consent of Inari, is excluded.
- Responsibility for the content, legality of data, indemnification
Only the customer is responsible for the content of the data posted by him, and in particular for its accuracy and legality, as well as data quality.
The customer agrees to comply with all legal requirements and not to infringe third-party rights. In particular, the customer confirms that he holds the right of use to all data posted by him or that he is the author as defined by the Copyright Act. In addition, the customer agrees not to violate any applicable legal requirements pertaining to the publication of data. In particular, this includes the placement of erotic, pornographic, extremist or other content contrary to common decency. In such a case, Inari is entitled to block the customer’s access to the AIS and/or terminate the contractual relationship for good cause. The same applies in the event that the customer publishes content that might hurt, offend, or denigrate third parties or others with respect to their honour or otherwise.
Furthermore, the customer undertakes to indemnify Inari in case of a claim due to the content— for whatever reason— of the data supplied by him. This shall include, but mot be limited to, coverage for those costs which are incurred in advance of a judicial enforcement by Inari for the safeguarding of rights (advisory and representation costs and other collection and litigation costs).
Inari is entitled but not obliged to verify the legality of the data supplied by the customer at any time without prior notice.
- Malicious software, spyware, obligation of the customer
The customer agrees not to upload any harmful computer programs such as malware in general, computer viruses, computer worms, Trojan horses, spyware and the like into the AIS or to infect it. In particular this covers software or computer programs which are likely to cause data loss or corruption of data in the system of Inari, and jeopardize non-disclosure and the confidentiality of data. Any liability of Inari which arises from malware, spyware, etc., furnished by the customer, is excluded. The customer shall indemnify and hold harmless Inari for damages resulting from the transmission of malware, spyware, etc.
- Usage rights/editing rights for system maintenance, privacy
The customer expressly agrees that for maintenance and system support work Inari shall have full access to the data posted by him in the AIS, as only then is the functionality of the AIS guaranteed.
Additionally the customer is aware that Inari must retain personal data for the fulfilment of contractual obligations. The customer is solely responsible for the submission of such data to Inari and Inari has no liability in this respect as far as such exclusion is legally permissible.
With the conclusion of the contract the customer explicitly agrees that the data required for the provision of service can be used and processed by Inari. If personal data as meant by the Data Protection Act is concerned, the customer gives his explicit consent to the use of such personal data. As far as required for the provision of service, the customer is obliged to provide the relevant consent as required by law. Inari is not obliged to consider the admissibility of the data submitted by the customer in terms of data protection rules and regulations.
- Shutdown for maintenance purposes
Inari reserves the right to temporarily disable AIS maintenance due during times between 21:00 and 07:00 o’clock Central European Time, and on weekends. During this period Inari excludes any liability related to the non-use of AIS by customer and there is no right of the customer to retain the subscription costs for this period.
- Change of the user interface
Inari is continuously working to update the user interface of the AIS. For this reason, Inari is entitled for reasons of quality assurance, or in terms of technical or economic development, to enhance or to restrict the user interface at any time.
- Publication of data
The data entered by the customer will only be published and included in searches from third-parties or other customers if the customer approves the release by appropriate selection in the AIS. The granting of such a right of use is done by selecting the corresponding menu items in the AIS. Any liability of Inari for the erroneous granting of rights (publication, forwarding) by the customer is excluded.
- Password storage password, logging of IP addresses
After prepayment of the respective subscription price, the customer will receive a password from Inari. The customer is obligated to change this password after receipt, so that it is ensured that no unauthorized persons have access to his account. The customer is further obliged to keep his user name and password, and any other data which allows unauthorized access via his account to AIS, secret and protected from access through unauthorized third parties. Any liability of Inari for unauthorized or fraudulent use of the username or the password of the customer is excluded. The customer is also liable for third parties (in particular staff), using the services of Inari by means of his account. The customer is obligated to report immediately to Inari any possible unauthorized or improper use of his account or password. Inari is entitled to keep logs of IP addresses.
Regardless of the above, the fee for the ongoing subscription has to be paid by the customer, to whom the account information including password was originally handed over by Inari.
- Right of withdrawal
A customer can only withdraw from the contractual application or the agreement if the underlying business is a consumer business, and if
- the customer has not entered into a contract either in the offices permanently used by Inari for its business purposes or on a stand used by Inari for this purpose at an exhibition or market,
- the customer himself has not initiated the business connection for the purpose of terminating this contract, and
- no meetings have preceded the execution of this contract.
This withdrawal may be declared until the conclusion of the contract or within one week thereafter; the period begins with the handing over of a document to the customer, which includes at least the name and address of Inari and a notice of the right of withdrawal, but not earlier than the conclusion of the contract. If the customer has not been informed in writing of his right of withdrawal, the right of withdrawal expires not one month after the full performance of the contract by both parties. The withdrawal must be declared in writing.
- Cancellation fees
In case of a withdrawal by the customer, Inari is entitled to claim damages under § 1168 ABGB (Austrian General Civil Law). In the event of timely written cancellation of the contract in accordance with § 3 KSchG (Austrian Consumer Protection Act), expenses, usage fee and depreciation are to be paid by the customer in accordance with § 4 KSchG. Furthermore, the customer shall return the received services from Inari. If the return of the services already provided by Inari proves impossible or impracticable, the customer has to reimburse Inari the appropriate value thereof in accordance with § 4 para 2 KSchG. The maximum amount of this value is limited to the subscription amount originally chosen by the customer.
- Data security, data backup, data loss, data forwarding to vicarious agents
Ensuring data security (in particular in connection with the DSG) is not in anywise the responsibility of Inari. Every customer has to independently ensure the redundant backup and security of all data. Inari agrees to take all reasonable measures to protect the data and information transmitted by the customer against unauthorized access by third-parties. However, Inari is not responsible if any third-party nevertheless manages to obtain for itself, in an unlawful manner, access to data and information of the customer, or to destroy, steal, or forward the data to an unauthorized person. Inari shall at no time be liable for any damage resulting therefrom.
With respect to any data transmitted to Inari and to the AIS, the customer shall independently and responsibly prepare backups. In the event of data loss occurring, the customer is obligated, free of charge, to transmit the respective data files toInari again.
The customer explicitly agrees that the data transferred by him and related to his business can be forwarded to various agents of Inari, in order to fulfil the contractual purpose hereof. This also includes personal data.
- Consulting services, support
The scope and cost of consulting and support services depend on the selected subscription, and are included in the agreement in question.
- Place of performance
The execution of this agreement, in the case of companies, shall be deemed to have occurred at the headquarters of Inari in Graz. With respect to an agreement with those recognized as “consumers” within the meaning of applicable statutes, there is no separate place of jurisdiction established this is governed by the statutory provisions.
- Delivery delay
If an agreed delivery (providing access to AIS) is exceeded by Inari by more than two weeks, the customer shall grant Inari a reasonable extension of at least two weeks. The customer can withdraw from the contract in writing (mail, fax, letter) only after expiry of this deadline.
- Term of payment, blocking access
The contractually agreed invoices are set out for payment within thirty (30) days net (without deduction) after accounting.
If payment is made by direct debit to Inari, Inari is entitled to block access to the AIS by the customer, provided that the debit authorization has been terminated by the customer or has been— for whatever reason—carried out unsuccessfully.
- Payment, retention of payment by the customer, prohibition
The payment of the amounts shown on the invoice has to be carried out via bank transfer without cash discount or discount deduction. Checks or drafts are accepted only by special agreement. If payment is made by a check or draft, Inari shall be considered paid only upon the redemption thereof, and any incurred bank charges shall be borne by the customer.
The customer is not entitled to withhold payments to, or offset counterclaims against, Inari due to warranty or other claims of any kind.
- Reminder fees, interest on arrears
In case of any delay in payment of any amount owed by customer to Inari, customer agrees to pay Inari any reminder notice fees and default interest necessary for the legal prosecution of the matter. In the event of default by customer, it is agreed in advance that EUR 25.00 (twenty-five) is the proper compensation for every reminder notice sent by Inari, unless higher expenses are actually incurred. If the customer is a consumer, the allowance has to be paid by him only if the late payment has been caused by him. In the case of companies the allowance is payable regardless of fault.
In case of default, as compensation for the credit expenses incurred to Inari, and subject to the assertion of possible further damages, the following is agreed
- with companies, the legal interest within the meaning of § 456 UGB (Austrian Enterprise Code),
- with consumers, the respective applicable base rate of the European Central Bank,
but in any case, whether a company or consumer, not less than 4 (four) % per annum.
- Bankruptcy, debt settlement proceedings
In the case of the opening of an insolvency, bankruptcy or debt settlement proceedings against the assets of either party, or in the event of the non-opening of any such proceedings due to the lack of assets within the meaning of the Insolvency Statute, the other party is obliged to provide its respective services to the defaulting party only after receiving the contractual amount owed for services rendered to date, unless the non-defaulting party agrees to some other arrangement.
- Warranty, malfunctions, failure of the server
In consumer transactions, the statutory warranty provisions shall apply. For all other transactions the following variations apply:
- Detected or detectable defects shall be reported immediately to our company, otherwise warranty and the other claims mentioned in § 377, 378 UGB can no longer be asserted.
- If defective parts have been altered by others than Inari, unless in the case of emergency repairs or in case of default of Inari with the improvement, any warranty of Inari shall be deemed to have expired.
- The warranty period is 12 months for movable and immovable property.
- Not later than twelve (12) months after the initial start of the warranty period, the warranty for any and all parts of the performance ends— even in the case of an already preceding warranty claim.
- The existence of a defect at the time of delivery has, contrary to the rule of presumption according to § 924 ABGB, to be proven by the customer.
As provided in § 932 ABGB only an improvement provided by Inari is covered by a warranty; an improvement provided in an exchange or as a substitute by a third party is excluded from any warranty of Inari. In case it is not possible for Inari to correct any defect in an improvement provided by it, or the cost of correction would represent a disproportionate effort, the warranty remedy of the customer shall be limited solely to an aliquot and reasonable price reduction (aliquot reduction in monthly prices for minute-by-minute of non-use).
Inari does not warrant, expressly or implicitly, that the AIS is available at any time and/or is continuously available, that the required tools (third-party software) are constantly available or that all data is stored, since due to the current state of technology, failures and malfunctions must be excluded. Inari will, however, make every effort to minimize downtime and possible loss of data as much as possible.
Moreover Inari is not liable for any malfunction or data loss caused by improper operation by the customer, unsuitable presentation software or hardware (e.g. unsuitable browser), or other data volumes, operating systems, databases, server software from other producers or antivirus programs used by the customer, viruses of any kind and inadequate operation and transmission conditions and malfunctions in the internet connection, or by incomplete or not updated offers on proxy servers, or by a failure of the AIS server platform.
- Liability for damages, limitation of claims, burden of proof
Inari and its agents shall not be liable except for damages intentionally caused or caused by gross negligence. The liability of Inari for something less than gross negligence is excluded. Inari guarantees best possible storage of data only according to accepted technical standards. If liability is proven with respect to the actions of Inari or its agents, for each case of damage liability shall be limited to three times (3x) the subscription price, subject, however, to a maximum overall amount not to exceed the sum of EUR 1000 (one thousand) in the aggregate. Moreover, Inari is not obligated to restore possible lost data.
Also excluded is liability for replacement of anything that is of a non-material nature, such as the intrinsic value of a relic or the data relating to a relic or any derivative thereof.
Irrespective of this, if it cannot be proven that Inari acted intentionally or with gross negligence, the compensation of purely pecuniary damage (in particular loss of profit, downtime, loss of production, interruption of excavation work, etc.) is limited by the general principles of good faith, e.g., in cases of a disproportion between the amount of compensation and the amount of loss.
Also irrespective of this, Inari is not liable for default or breach of duty that are due to reasons which Inari cannot influence at a reasonable expense. The liability for any consequential damages, regardless of the kind thereof (warranty, compensation, etc.), and in particular for damages resulting from loss of data and their recovery, is excluded.
Unless legally valid for a shorter period of limitation or preclusion, all claims against Inari are forfeit if they are not filed in court by the customer within six (6) months from the date the customer became aware of the damage and the party responsible for it, or of the incident that otherwise gives rise to a claim, but at the latest after a period of five (5) years after the damage-causing (claim-establishing) behaviour/infringement (preclusion period).
The parties mutually agree that the burden of proof as set forth in § 1298 ABGB is excluded from application hereto.
- Force majeure
Obligations of Inari under the contract that are not met due to force majeure (such as in particular, terrorism, war, natural disasters, strikes, fires, storm damage, interventions of public authorities, lock-outs, embargo, power failure, failure of telecommunications networks or data lines, subsequent legislative changes impacting performance ), do not constitute a breach of contract by Inari.
- Address changes
The parties have to inform each other without delay of changes regarding contact information, in particular changes of address, changes of e-mail address, etc. If a party omits this, its last known address is valid for all deliveries. Expenses for address determination are to be paid by the party in default. In case of a failure to provide information about changes in his contact information, the customer shall bear all resulting disadvantages and damages therefrom. Also, a notification is deemed to be received when Inari transmitted it to the last known address of the customer (by mail, fax, letter).
- Amendments to the General Terms and Conditions, consent fiction
Changes in the terms and conditions of Inari are considered to be approved by the customers if the customer does not object to the same in writing within a period of six weeks from receipt of a written notice of the change (mail, fax, letter) byInari (approval fiction).
- Jurisdiction, applicable law
For all disputes arising from the contractual relationship, which is based on these General Terms and Conditions, the competent court in
- Graz, Austria
is agreed on as the place of jurisdiction within the meaning of § 104 JN (Austrian Law on Jurisdiction) and Art. 23 of EuGVVO (European Convention on Jurisdiction and the Enforcement of Judgements). This jurisdiction clause does not apply to consumer contracts.
In case of claims brought by a consumer or against a consumer regarding agreements with Inari, the court of general jurisdiction (consumer court of jurisdiction) in Austria is retained even if, after the contract has been concluded, the consumer moves his domicile abroad, provided Austrian court decisions are enforceable in that country.
Moreover, explicitly the application of Austrian law is agreed under exclusion of all conflict-of-law rules, in particular the Austrian IPRG, the provisions of the CISG Convention, the Rome I Regulation and the EuGVVO.
The agreement on the place of jurisdiction and applicable law applies to all current and future claims from the business relationship between Inari and the customer.
- Corporate transition
In case Inari merges, within the meaning of § 38 UGB, in form of a contribution or through the sale of the company, the customer already now waives an appeal within the meaning of § 38 para 2 UGB.
The Parties agree that Inari is subsequently entitled to undertake legal and economic changes in their existing or yet-to-be-established company, particularly by way of merger, cleavage, etc., without altering the contractual relationship. Furthermore, Inari is entitled to purchase shares in other companies as well as to undertake reorganisations, whether in form of singular succession or otherwise, as well as to sell its business. Likewise, the disclosure of customer data to affiliated enterprises is permitted.
The rights provided herein are not exhausted by any exercise thereof, but are granted to Inari for the duration of the contract. Any further disclosure is prohibited.
- Writing requirement
Any changes to these Terms and Conditions shall be in writing and must be legally valid and signed by the parties or their legal successors. This applies in particular to any waiver of any one or more of the General Terms and Conditions hereof.
- Salvatoric clause
In the case of invalidity of one or more provisions of these General Terms and Conditions, the remaining provisions shall remain in force and effect in their entirety. The parties may agree in writing to amend the General Terms and Conditions accordingly, by removing the invalid provision and replacing it with one that meets the intention of the parties at the time the contract was concluded.