I. General(1) The following are terms of a legal agreement between you and the i-sense software GmbH (I-SENSE in the following). By accessing, browsing and/or using this web site, you acknowledge that you have read, understood, and agree, to be bound by these terms and to comply with all applicable laws and regulations, including export and re-export control laws and regulations. If you do not agree to these terms, do not use this web site. (2) This website may contain other proprietary notices and copyright information, the terms of which must be observed and followed. Information on this website may contain technical inaccuracies or typographical errors. II. Products and ServicesDURING THE ORDER PROCESS YOU WILL BE ASKED TO ACCEPT THE GENERAL TERMS AND CONDITIONS FOR USAGE OF I-SENSE PRODUCTS AND SERVICES (AS OUTLINED IN THE FOLLOWING PARAGRAPHS). BY CLICKING “I ACCEPT” YOU CLAIM TO HAVE READ AND TO AGREE WITH THE GENERAL TERMS AND CONDITIONS. IN CASE YOU ARE CLOSING THIS CONTRACT IN THE NAME OF A COMPANY OR ANY OTHER CORPORATE BODY, YOU WARRANT TO BE AUTHORIZED TO BIND THIS INSTITUTION TO THE TERMS AND CONDITIONS SUBJECT TO THIS AGREEMENT. IN THIS CASE “YOU” WILL REFER TO THIS VERY INSTITUTION. IF YOU DO NOT HAVE THIS AUTHORITY OR DO NOT APPROVE OF THE FOLLOWING TERMS AND CONDITIONS, YOU ARE OBLIGED TO PRESS “I DECLINE” AND ARE HENCE NOT ALLOWED TO USE THIS SERVICE. §1 Area of Application(1) I-SENSE delivers its products and services to the respective contracting party (in the following CUSTOMER) only on the basis of these General Terms and Conditions. Deviant General Terms and Conditions of the CUSTOMER do not apply whatsoever – including the case of a missing explicit appeal by I-SENSE. (2) The latest version of these General Terms and Conditions are permanently available on I-SENSE’S homepage at www.groupion.com and are available at I-SENSE’S offices. The CUSTOMER confirms with his signature within the extent of any business contract that he was, in a reasonable way, able to take note of these terms and conditions. With his signature he also acknowledges these General Terms and Conditions as a binding and valid contractual basis. To the same extent, a valid acknowledgment does also come into effect if the CUSTOMER was adverted to these General Terms and Conditions before any usage of any I-SENSE products or services (e.g. during installation and/or registration). (3) Changes of these General Terms and Conditions will be announced and published on the I-SENSE homepage (www.groupion.com). Given I-SENSE has changed the General Terms and Conditions to the CUSTOMER’s disadvantage, the CUSTOMER can terminate this contract in written form within a period of one month after notice of the change was delivered to him. An announcement on the homepage of I-SENSE is considered sufficient notice. Herewith I-SENSE adverts to the CUSTOMER’s right of termination. After a time period of thirty (30) days following I-SENSE’s notification of the CUSTOMER of a change, the CUSTOMER’S silence, that is without notice of the will to terminate this contract, will constitute binding acceptance of the change. (4) Through other contractual agreements between I-SENSE and the CUSTOMER, particular covenants in these General Terms and Conditions may expire. §2 Performance and Assessment(1) I-SENSE covenants to deliver to the CUSTOMER the services set in the respective contract to the agreed quality and date. (2) To the extent that I-SENSE delivers services free of charge, those services can be terminated any time without prior notice. In no event will I-SENSE be liable to any compensation or restitution of damages arising from these actions whatsoever. (3) Subject to a contract can be amongst other: (4) The creation/delivery of individual products/services is being performed on the basis of the binding and entire information, documents and resources given to I-SENSE. These include test data with practical validity and test possibilities to the extent needed and made available by the CUSTOMER in a timely manner, during usual office hours and at his own cost. If the CUSTOMER is using the system real-time, which was made available for testing, responsibility for sufficient data back-up lies with him. (5) The creation of individual software is based on a written service description which I-SENSE composes at cost and on the documents and information made available or which the CUSTOMER makes available, respectively. The CUSTOMER is obliged to check this service description concerning correctness and completeness and to sign it to indicate his approval. Later changes to this service description may lead to renegotiated agreements concerning price and date of delivery. (6) Individually created software or program adaptions for the respective program require an acceptance by the CUSTOMER within four weeks after the date of delivery. If the CUSTOMER lets that time period pass without explicit acceptance, the software is considered to be accepted by the CUSTOMER with the last day of the four week period. If the software is being used in real-time by the CUSTOMER, the software is automatically considered accepted in any case. For possible software defects, that is any discrepancy from the service description which was agreed in written form, I-SENSE is to be immediately informed about by the CUSTOMER and with sufficient documentation. This is to ensure repair in as short a time as possible. If material software defects documented in written form exist, that is the real-time usage of the software is not possible, a anew acceptance is required after the defects were resolved. The CUSTOMER does not have any authority to decline acceptance of the software due to inmaterial defects. (7) With the ordering of standard library programs the CUSTOMER certifies that he is aware of the range of services included in the ordered programs when ordering standard library programs. (8) In case it becomes obvious during the delivery of a service that the fulfilment of an order according to the service description is as a matter of fact or legally impossible, I-SENSE is obliged to immediately notify the CUSTOMER of that fact. If the CUSTOMER fails to change the service description or to establish the prerequisites to the extent that the fulfilment is possible, I-SENSE has the right to decline the fulfilment. If the fulfilment is impossible due to any CUSTOMER´s failure or a subsequent change of the service description, I-SENSE has the right to withdraw from the contract. All costs and charges for performed services till that day and any dissembling costs are to be borne by the CUSTOMER. (9) Mailing of program mediums, documentations and service descriptions are at the CUSTOMER’s cost and risk. Any additional training and explanations that the CUSTOMER wishes are invoiced separately. §3 Prices, Tax and Fees(1) All prices are net in Euro, that is without VAT (value-added tax). They are only valid for the contract at hand. The designated prices are considered ex office of I-SENSE and can be checked on the I-SENSE homepage at www.groupion.com. (2) For standard library programs the prices at the day of delivery are considered binding. For all other services (consulting, programming, training, telephone support and other support services) the price will be calculated on the basis of the then valid daily rate. Any additional effort that was not accounted for in the price fixed in the contract and which is not fungible by I-SENSE will be invoiced based on the actual effort that arose. (3) Expenses for travelling, daily allowance and accommodation will be invoiced separately and based on the respective valid rates. Travelling time is being considered as billable work effort. §4 Payment(1) All invoices from I-SENSE including tax are to be paid within 10 days from the receipt of the invoice without any deduction whatsoever. For split up invoices the terms and conditions of payment of the whole order apply analogously. (2) With orders that consist of different parts (e.g. software, training etc.) I-SENSE has the right to invoice every partly performed service after it has been delivered. (3) Compliance with the agreed day of payment is a material prerequisite for the delivery of a service and/or performance of the contract by I-SENSE. The failure to meet the deadline for duly payment entitles I-SENSE to stop any on-going work and to withdraw from the contract. All associated cost as well as foregone profits are to be borne by the CUSTOMER. In case of failure of payment, I-SENSE can claim interest for default subject to an interest rate that reflects general market practice. In case of payment by instalments, a failure to pay two instalments entitles I-SENSE to consider a foregone date of delivery and to invoice performed acceptances. (4) The CUSTOMER does not have the right to defer payments due to incomplete delivery, warranty issues or quality issues. (5) The CUSTOMER’s obligation to pay commences on the day that the contractually agreed service(s) have been provided to him in a way that these services are fully operable. With pure service contracts (e.g. leasing or maintenance services) the price for the service is being calculated by billing each day with a 1/30 proportion of the monthly price. (6) All fees for service contracts are to be paid prior to the respective billing period – at the latest on the third day of the respective month. All invoices of I-SENSE are to be paid within a 10 day period which starts with the invoice’s receipt. (7) Non-recurring setup fees are not subject to reimbursement. If the CUSTOMER is in default with respect to payments for rented objects (e.g. software leasing, webspace, remote systems or server), I-SENSE has the right to, after an appropriate notification, disable access to the respective object within a one week period after the receipt of the notification. Denial of access may last until all due payments have been transferred. Efforts arising from locking and unlocking of objects may be invoiced with appropriate fees. §5 Copyright and Usage(1) All intellectual property rights of agreed services (software, documentation etc.) are the property of I-SENSE or other third party licensers. Given a duly payment of the associated fees, the CUSTOMER is only awarded the right to use the services for his own purposes only; usage is limited to contractually specified hardware and number of purchased licenses for usage on a number of work stations. Through this contract, the CUSTOMER acquires only the right to use the services. Any distribution by the CUSTOMER whatsoever is excluded by copyright law. The CUSTOMER’s participation in the creation of the software does not award the CUSTOMER any rights on-top of the rights to use based on this contract. Any breach of I-SENSE’s copyright will trigger claims for damages; in such a case full satisfaction is to be provided. (2) Any changes to the hardware used have to be checked and approved by I-SENSE through the product activation process. (3) The right to create copies for archive and/or back-up purposes is granted to the CUSTOMER subject to the following conditions: (a) the software does not contain any explicit interdiction to do so by the licenser or third parties and (b) any copyright and property claims have to remain unchanged in the copies. (4) If the software’s interfaces have to be opened for the purpose of interoperability, the CUSTOMER is required to request such a service from I-SENSE and pay the applicable fees arising from such work efforts. If the CUSTOMER does not follow these requirements and decompiles the software in accordance with copyright law, all results obtained from this decompilation are only to be used for interoperability purposes. Any violation hereunto will trigger compensation for damages. In general, I-SENSE is not obliged to disclose any technical details. §6 Right to Retire(1) In case the agreed date of delivery was exceeded due to I-SENSE’s sole fault or illicit action, the CUSTOMER obtains the right to retire from the respective contract by registered mail; this is only possible if and only if the agreed service was not delivered in material parts within an appropriate period of grace and if the CUSTOMER is not responsible for the delay whatsoever. (2) Force majeure, work conflicts, natural catastrophes and transport blocks as well as any other circumstances that are beyond I-SENSE influence discharge I-SENSE from the obligation to deliver and allow I-SENSE to negotiate a new due date. (3) Cancellation through the CUSTOMER requires I-SENSE’s prior written consent. I-SENSE’s consent of a cancellation creates the CUSTOMER’s obligation to pay a cancellation fee of 35% of the remaining unbilled order value on top of all invoiced amounts for already delivered services and induced costs. §7 Termination(1) All of the contract packages offered by I-SENSE (e.g. leasing or maintenance contracts) have – if not otherwise agreed – a minimum contract period of one year. This period automatically renews by one year if either party does not terminate the contract in written form four weeks prior to the end of the contract period. I-SENSE’s right for extraordinary dismissal remains untouched hereby. (2) In case I-SENSE delivered contractually specified services in advance (e.g. pre paid yearly fees for domain or registration authorities or purchase of special hardware components), I-SENSE has the right to – in case of termination – invoice the CUSTOMER on any such costs or outlays. The CUSTOMER’s right to plea for lower expenses and compensation is not touched hereby. In case of an ordinary dismissal through I-SENSE, any claims for reimbursement for expenses or outlays cease. (3) In case of maintained delay of payment, I-SENSE has the right to deny further contractual services without repeated notice and has to right to terminate the contract with immediate effect. §8 Warranty, Maintenance and Changes(1) Notification of defects are only valid if reproducible defects are concerned and if they were documented in written form within four weeks after the agreed service was delivered or, in case of individual software, after the acceptance, respectively. In case of warranty, improvement takes priority over price deduction or conversion. With valid notifications of defects, all defects are repaired in an appropriate time; the CUSTOMER renders all measures needed to investigate and repair any defects possible for I-SENSE. Assuming defects according to §924 ABGB is explicitly excluded. (2) Corrective or completive efforts which qualify necessary during the time until delivery of the agreed service due to organisational or program-related defects will be conducted by I-SENSE free-of charge, given that these defects are considered fungible by I-SENSE. (3) Expenses for help, error analysis and elimination of such errors and disruption, which are fungible to the CUSTOMER, as well as other corrective actions, changes and add-ons are subject to invoice. The same accounts for the elimination of defects due to program changes, add-ons or other actions that were done by the CUSTOMER himself or by a third party. I-SENSE stresses that for changes or modifications that were performed by the CUSTOMER or any other third party, no obligation for maintenance exists and is excluded from I-SENSE’s terms and conditions for maintenance. (4) Moreover, I-SENSE does not provide warranty for defects, disruptions or damages that were caused by improper usage, changed operating system components, interfaces and parameters, usage of improper organisational and data storage devices, in so far as such devices are required, abnormal operating conditions (above all deviance from conditions for installation and storage) as well as damages caused by transport. (5) For software that was changed by the CUSTOMER’s own or third parties’ engineers any warranty by I-SENSE ceases. (6) In so far that changes or add-ons for already existing software are subject to the contract, warranty is valid for such changes or add-ons. Warranty for the original software program does not come into effect anymore. §9 Liability(1) I-SENSE is only liable for damages that exhibit the characteristic of intent or culpable negligence – to the extent permitted by law. Liability for slight negligence is excluded. (2) Refund for consequential damages and financial loss, non-realized savings, loss of interest and for damages arising from third party claims against I-SENSE is, to the extent permitted by law, in any case excluded. (3) I-SENSE is not liable for data send through its services; neither for the data’s completeness, accuracy or actuality nor for the fact that this data is free of third parties’ rights nor for the sending party’s lawfulness in submitting the data. (4) In case damage was caused on infrastructure needed for transmission of a third party, I-SENSE cedes any claims arising hereof to the CUSTOMER. (5) Given that there are no other clauses in these General Terms and Conditions that exclude liability, liability for damages that were caused by usage of I-SENSE services, transmission and storage of data and for damages that were caused because storage or transmission of data was not performed by I-SENSE (as contractually fixed), is limited to 2,500 Euro; in so far that intent or culpable negligence are not on hand. (6) Liability for damages that were caused by using hard- and/or software delivered and/or installed by I-SENSE, the maximum amount liable is limited to 2,500 Euro; in so far that intent or culpable negligence are not on hand. (7) The CUSTOMER is aware of the fact that due to maintenance, restructuring and other works on technical infrastructure, the service level may be limited or unavailable for a short period of time. I-SENSE is, to the extent possible, committed to but cannot warrant that such work is done at such points in time that exhibited, based on historical data, the lowest request for the respective service. §10 Warranty(1) In cases of warranty I-SENSE has the right to choose between remedy and/or replacement. In case this fails within an appropriate respite and an subsequent respite set by the CUSTOMER, the CUSTOMER has all the warranty rights pursuant to the I-SENSE General Terms and Conditions. (2) The desire for warranty has to be brought to I-SENSE immediately, in written form and with a description of the circumstances in which the complained defect occurred and of the consequences the defect had. I-SENSE has the right to bind its subsequent actions of remedy to the existence of the afore mentioned prerequisites. If applicable, the CUSTOMER is required to use the provided forms or online-reporting-tools for filing the defect report. (3) The respite for warranty starts with the (partly) acceptance; in other cases as administered by law. The duration of warranty is six months, given that no other written agreements provide a different period. (4) The CUSTOMER purchases all I-SENSE standard procuts and/or services as is. That is, these products or services do not include warranty or guarantee whatsoever and their usage is at the users own risk. §11 Jurisdiction and other Conditions(1) For all present and future claims arising from business relationships with registered merchants including note receivables and cheques, the sole jurisdiction is the headquarter of I-SENSE. In any case I-SENSE can enforce claims at courts within the jurisdiction of the CUSTOMER. If applicable, an exclusive jurisdiction remains untouched hereby. (2) The CUSTOMER is obliged to notify I-SENSE within one month of (a) any additional or ceasing of persons of companies lacking legal capacity, community of heirs, unions without legal capacity, Limited companies or customer unions as well as (b) any changes of the CUSTOMER’s name or notation or changes to his address under which he is registered in I-SENSE’s contact information. (3) Place of delivery is Munich, Germany. (4) Emails are considered delivered once they were accepted by the addressee’s mail server. Encoding or signatures of messages and data are only performed if requested and agreed in written form. (5) The CUSTOMER is only allowed to transfer the rights and obligations arising from this contract if I-SENSE issued its written consent. (6) The area of application of the „Telekommunikationskundenschutzverordnung“ takes priority over differently formulated regulations of this contract. The Law for Product Liability as well as any OEM warranties remain untouched. (7) I-SENSE’s offers are to be considered effective. If the CUSTOMER claims that changes were made compared to the (prospectus-) product descriptions, he has to provide proof in case of doubt. (8) This contract is subject to German law, in particular UrhG, BGB and HBG. In no event shall the United Nations Convention on Contracts for the International Sale of Goods apply. (9) Changes and amendments to this contract need to be in written form. The same accounts for the requirement for written form. Oral agreements are considered invalid. (10) In general, I-SENSE does only act based on these General Terms and Conditions. Through the first usage of I-SENSE’s services already are these terms and conditions considered to be accepted. Counter-confirmation of the user with allusion to his conditions of business or purchase, respectively, are considered disagreed herewith. Agreements that differ from the here outlined issues require written form. In case any of the afore mentioned provisions prove invalid, the validity of the whole contract will not be affected anyhow. An invalid or missing provision will be replaced to the extent possible with a provision that comes closest to the meaning of the original provision and/or both parties’ intent. Munich, November 21, 2008 |