Terms and conditions

Contents

Terms and conditions
Terms of use for QMedia Connect

Terms and conditions for contracts with QMedia IT GmbH

1.    Scope and validity of the contract

This English version is provided for convenience; the German version is legally binding. 1.1.  All orders and agreements are legally binding only if they are signed in writing and in due corporate form by QMedia IT GmbH (hereinafter referred to as the Contractor), and they are binding only to the extent specified in the order confirmation. The Client’s terms of purchase are hereby excluded for the transaction in question and for the entire business relationship. Offers are generally non-binding.

1.2.  The version of our terms and conditions current at the time the contract is concluded applies in each case; it is available on our homepage (www.qmedia.at) and has also been sent to the customer.

1.3.  We contract exclusively on the basis of our terms and conditions.

1.4.  The customer’s terms and conditions, or amendments or additions to our terms and conditions, require our express consent – in writing in the case of business customers – in order to be valid.

1.5.  The customer’s terms and conditions are not recognized even if we do not expressly object to them after receiving them.

2.    Services and inspection

2.1.  The subject of an order may be:

- Development of organizational concepts

- High-level and detailed analyses

- Creation of custom programs

- Delivery of library (standard) programs

- Acquisition of usage rights for software products

- Acquisition of licenses to use works (Werknutzungsbewilligungen)

- Assistance with commissioning (migration support)

- Telephone consulting

- Program maintenance

- Creation of program media

- Other services

2.2.  Individual organizational concepts and programs are developed according to the nature and scope of the binding information, documents and resources provided in full by the Client. These also include realistic test data and sufficient testing facilities, which the Client provides in good time, during normal working hours and at its own expense. If the Client is already working in live operation on the system provided for testing, responsibility for backing up the live data lies with the Client.

2.3.  The basis for creating custom programs is the written specification, which the Contractor prepares for a fee on the basis of the documents and information provided to it, or which the Client provides. The Client must check this specification for accuracy and completeness and mark it with its approval. Change requests made at a later stage may lead to separate agreements on deadlines and prices.

2.4.  Custom software or program adaptations require program acceptance by the Client for the program package concerned no later than four weeks after delivery. The Client confirms this acceptance in a record. (Check for accuracy and completeness against the specification accepted by the Contractor, using the test data provided as set out in point 2.2). If the Client allows the four-week period to elapse without program acceptance, the delivered software is deemed accepted as of the end date of that period. If the Client uses the software in live operation, the software is in any case deemed accepted.

Any defects that occur, i.e. deviations from the specification agreed in writing, must be reported to the Contractor by the Client with sufficient documentation; the Contractor will endeavor to remedy them as quickly as possible. If material defects have been reported in writing, meaning that live operation cannot be started or continued, renewed acceptance is required after the defects have been remedied.

The Client is not entitled to refuse acceptance of software on account of minor defects.

2.5.  When ordering library (standard) programs, the Client confirms by placing the order that it is aware of the scope of performance of the programs ordered.

2.6.  Should it become apparent in the course of the work that performing the order in accordance with the specification is factually or legally impossible, the Contractor is obliged to notify the Client of this immediately. If the Client does not change the specification accordingly or does not create the conditions that make performance possible, the Contractor may refuse performance. If the impossibility of performance results from an omission by the Client or from a subsequent change to the specification by the Client, the Contractor is entitled to withdraw from the order. The costs and expenses incurred up to that point for the Contractor’s work, as well as any dismantling costs, must be reimbursed by the Client.

2.7.  Program media, documentation and specifications are shipped at the Client’s expense and risk. Any additional training and explanations requested by the Client are invoiced separately. Insurance is taken out only at the Client’s request.

2.8.  We expressly point out that an accessible design (of websites) within the meaning of the Federal Act on the Equal Treatment of Persons with Disabilities (Federal Disability Equality Act, Bundes-Behindertengleichstellungsgesetz – BGStG) is not included in the offer unless it has been requested separately/individually by the Client. If accessible design has not been agreed, it is the Client’s responsibility to check the deliverables for their permissibility with regard to the Federal Disability Equality Act. Likewise, the Client must check the content it provides for its legal permissibility, in particular under competition, trademark, copyright and administrative law. In the event of slight negligence, or after fulfilling any duty to warn the customer, the Contractor is not liable for the legal permissibility of content if this content was specified by the customer.

2.9. The Client undertakes to participate actively in the implementation of the projects and to be reachable for the duration of the project. This participation is necessary to ensure efficient and purposeful project execution. If the Client fails to meet its obligations to cooperate and, despite a written reminder, does not get in touch for a period of at least two weeks or does not actively participate in the project for a period of four weeks, the Contractor is entitled to invoice all services rendered up to that point in full and to terminate the project early. In this case, the Client is not entitled to a refund of payments already made or to damages.

2.10. Although all consulting services are performed carefully and professionally, the Contractor cannot guarantee the success of the recommended measures or implemented solutions. Any success depends on a large number of independent factors that lie outside the Contractor’s sphere of influence. All of the Contractor’s consulting services are therefore to be understood as non-binding recommendations.

3.    Prices, taxes and fees

3.1.  All prices are in euros excluding VAT. They apply only to the present order. The prices stated apply ex the Contractor’s registered office or place of business. The costs of program media (e.g. CDs, magnetic tapes, magnetic disks, floppy disks, streamer tapes, magnetic tape cassettes, etc.) as well as any contract fees are invoiced separately.

3.2.  For library (standard) programs, the list prices valid on the day of delivery apply. For all other services (organizational consulting, programming, training, migration support, telephone consulting, etc.), the work performed is charged at the rates valid on the day the service is rendered. Deviations from the time required on which the contract price is based, for which the Contractor is not responsible, are charged as actually incurred.

3.3.  Travel costs, daily allowances and overnight allowances are invoiced to the Client separately at the rates applicable at the time. Travel time counts as working time.

3.4. Work lasting up to 4 hours does not require a separate quotation if the customer requests that this work be carried out or if we see an urgent need to act in the customer’s interest. This work is then carried out on the basis of the current price list and invoiced to the customer.

4.     Delivery date

4.1.  The Contractor endeavors to meet the agreed dates of performance (completion) as precisely as possible.

4.2.  The targeted performance dates can only be met if the Client provides all necessary work and documents in full by the dates specified by the Contractor, in particular the specification accepted by the Client in accordance with point 2.3., and fulfills its obligation to cooperate to the required extent.

Delivery delays and cost increases caused by incorrect, incomplete or subsequently changed details and information or by documents provided are not the Contractor’s responsibility and cannot result in the Contractor being in default. Any resulting additional costs are borne by the Client.

4.3.  For orders comprising several units or programs, the Contractor is entitled to make partial deliveries and to issue partial invoices.

5.    Payment

5.1. Invoices issued by the Contractor, including VAT, are payable no later than 14 days after receipt of the invoice without any deduction and free of charges. The payment terms set for the overall order apply accordingly to partial invoices.

5.2.  For orders comprising several units (e.g. programs and/or training, implementation in stages), the Contractor is entitled to invoice after delivery of each individual unit or service.

5.3.  Compliance with the agreed payment dates is an essential condition for delivery or performance of the contract by the Contractor. Failure to make the agreed payments entitles the Contractor to stop ongoing work and to withdraw from the contract. All associated costs as well as loss of profit must be borne by the Client.

In the event of late payment, default interest is charged at the usual bank rate. If two installments are not paid when paying in installments, the Contractor is entitled to declare the entire outstanding amount due (Terminverlust) and to call in accepted bills of exchange that have been handed over.

5.4.  The Client is not entitled to withhold payments on account of incomplete overall delivery, guarantee or warranty claims, or complaints.

5.5. We offer collection by SEPA direct debit or SEPA B2B direct debit. As soon as a valid SEPA mandate is in place, the Contractor collects outstanding amounts using this payment method. The debit is normally made between one and five days after invoicing (invoice date). It is deemed agreed that no explicit notification to the Client is required for direct debits and that the invoice suffices as notification of the upcoming debit.

6.    Copyright and use

6.1.  Upon payment of the agreed fee, the Contractor grants the Client a non-exclusive, non-transferable, non-sublicensable and perpetual right to use the software for the hardware specified in the contract and to the extent of the number of licenses acquired for simultaneous use at several workstations, and to use all work results produced on the basis of the Contractor’s contract for its own internal purposes. All other rights remain with the Contractor.

The Client’s participation in the production of the software does not confer any rights beyond the use specified in this contract. Any infringement of the Contractor’s copyrights gives rise to claims for damages, in which case full compensation (volle Genugtuung) must be paid.

6.2.  The Client is permitted to make copies for archiving and backup purposes on condition that the software does not contain an express prohibition by the licensor or third parties, and that all copyright and proprietary notices are transferred unchanged to these copies.

6.3.  Should disclosure of the interfaces be necessary to establish interoperability of the software in question, the Client must commission the Contractor to do so against reimbursement of costs. If the Contractor does not comply with this request and decompilation takes place in accordance with the Austrian Copyright Act (Urheberrechtsgesetz, UrhG), the results may be used solely to establish interoperability. Misuse will result in liability for damages.

6.4.  If the Client is provided with software whose license holder is a third party (e.g. standard software from Microsoft), the granting of the right of use is governed by the license terms of the license holder (manufacturer).

7.     Right of withdrawal

7.1.  If an agreed delivery time is exceeded due to the sole fault or unlawful conduct of the Contractor, the Client is entitled to withdraw from the order in question by registered letter if the agreed service is not substantially performed even within a reasonable grace period and the Client is not at fault for this.

7.2.  Force majeure, labor disputes, natural disasters and transport embargoes, as well as other circumstances beyond the Contractor’s control, release the Contractor from the obligation to deliver or allow it to reschedule the agreed delivery time.

7.3.  Cancellations by the Client are only possible with the Contractor’s written consent. If the Contractor agrees to a cancellation, it is entitled, in addition to the services rendered and costs incurred, to charge a cancellation fee in the amount of 30% or of the work already performed of the order value of the overall project not yet invoiced.

8.    Warranty, maintenance, changes

8.1.  The Contractor warrants that the software performs the functions described in the associated documentation, provided that the software is used on the operating system described in the contract.

8.2.1 The prerequisites for remedying errors are that

–           the Client describes the error sufficiently in an error report and the error can be identified by the Contractor from this report;

–           the Client provides the Contractor with all documents required to remedy the error;

–           neither the Client nor any third party attributable to it has made any modifications to the software;

–           the software is operated under the intended operating conditions in accordance with the documentation.

8.2.2 In warranty cases, repair (Verbesserung) always takes precedence over price reduction or rescission of the contract (Wandlung). In the event of a justified notice of defects, the defects will be remedied within a reasonable period, with the Client enabling the Contractor to take all measures necessary to investigate and remedy the defects.

The presumption of defectiveness pursuant to § 924 of the Austrian Civil Code (ABGB) is deemed excluded.

8.2.3 Corrections and additions that prove necessary up to handover of the agreed service due to organizational and program-related defects for which the Contractor is responsible are carried out by the Contractor free of charge.

8.3.  Assistance, misdiagnosis and the remedying of errors and malfunctions for which the Client is responsible, as well as other corrections, changes and additions, are carried out by the Contractor for a charge. This also applies to remedying defects if program changes, additions or other modifications have been made by the Client itself or by a third party.

8.4.  Furthermore, the Contractor provides no warranty for errors, malfunctions or damage attributable to improper operation, changed operating system components, interfaces and parameters, use of unsuitable organizational materials and data carriers insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) or transport damage.

8.5.  For programs subsequently modified by the Client’s own programmers or by third parties, any warranty by the Contractor lapses.

8.6.  Where the subject of the order is the modification or extension of existing programs, the warranty relates to the modification or extension. The warranty for the original program is not revived as a result.

8.7. Warranty claims become time-barred six (6) months after handover.

8.8. Unless expressly agreed otherwise in writing, when creating or modifying third-party software (e.g. plugins or open-source software), we can only provide a warranty if all components of the overall project (e.g. shop system, PHP, plugins, mail server, etc.) retain their original version and are not changed.

9.     Liability

9.1. The Contractor is liable to the Client for damage demonstrably caused by its fault only in the event of gross fault. This does not apply to damage attributable to third parties engaged by the Contractor. In the event of culpably caused personal injury, the Contractor’s liability is unlimited.

9.2. Liability for indirect damage - such as lost profit, costs associated with business interruption, data loss or third-party claims - is expressly excluded.

9.3. Claims for damages become time-barred in accordance with the statutory provisions, but no later than one year after knowledge of the damage and of the party causing it.

9.4.  If the Contractor performs the work with the assistance of third parties and warranty and/or liability claims against these third parties arise in this connection, the Contractor assigns these claims to the Client. In this case, the Client will primarily seek recourse against these third parties.

9.5. If data backup has been expressly agreed as a service, liability for the loss of data is, notwithstanding point 9.2, not excluded, but is limited for the restoration of the data to a maximum of EUR 10% of the order amount per claim, but no more than EUR 15,000. Warranty and damage claims of the Client beyond those stated in this contract - on whatever legal grounds - are excluded.

9.6. The use of third-party software is agreed with the Client. We accept no liability for missing functions, incompatibilities or errors in or between third-party software (e.g. third-party plugins), or for errors caused by or originating from third-party software, even if it was installed by the Contractor.

9.7. The customer is aware that the software products used in the project are standard software from third-party providers, such as Microsoft, VARIO Software-Entwicklungs-AG, Odoo S.A., etc. Before concluding the contract, the customer obtained information about the functions of these software products and accepts that it may not be possible to implement all requirements as it wishes. Unless custom programming has been explicitly agreed in writing, the adaptation of standard software to the customer’s specific needs is not part of the contract. The Contractor is not liable for incidents connected with the use of standard software or third-party software. The customer indemnifies the Contractor against all liability, warranty and damage claims that may arise in connection with the use of these software products.

9.8. The customer always bears its own responsibility for decisions made on the basis of the consulting and the implemented software solutions. After project handover or the go-live of the software solution, responsibility for the use of the software lies with the customer. The Contractor is not liable for decisions or actions taken by the customer on the basis of the services and products provided.

9.9. The Contractor accepts no liability for loss of earnings or additional costs that the customer may incur through external partners. This includes, but is not limited to, outages of payment providers, delivery delays by logistics partners or technical problems caused by third-party providers.

10.   Loyalty

10.1.         The contracting parties undertake to be loyal to each other. During the term of the contract and for 12 months after its termination, they will refrain from poaching or employing, including through third parties, any employees of the other contracting party who have worked on the execution of the orders. A contracting party that breaches this obligation must pay liquidated damages amounting to one year’s salary of the employee concerned.

11.   Confidentiality

11.1. The Contractor obliges its employees to comply with the provisions of § 6 of the Austrian Data Protection Act (DSG).

12.   Miscellaneous

12.1. Should individual provisions of this contract be or become invalid, the remaining content of this contract shall not be affected. The contracting parties will work together in a spirit of partnership to find a provision that comes as close as possible to the invalid provisions.

13.   Final provisions

13.1. Unless otherwise agreed, the statutory provisions applicable between businesses apply exclusively under Austrian law, even if the order is performed abroad. For any disputes, the exclusive local jurisdiction of the court having subject-matter jurisdiction for the Contractor’s registered office is deemed agreed. For sales to consumers within the meaning of the Austrian Consumer Protection Act (Konsumentenschutzgesetz, KSchG), the above provisions apply only insofar as the Consumer Protection Act does not provide otherwise by mandatory law.

Terms of use for QMedia Connect

Version 1.1, last updated: 11 September 2023

Introduction

By accessing or using QMedia Connect (“the Product”, “the Service”, “our Platform”), provided by QMedia IT GmbH, Leopold-Werndl-Straße 25/9b, Steyr, Austria (“we”, “us”, “our”), you (“the User”, “you”) agree to these Terms of Use (“Terms”).

Availability

We guarantee an availability of our services of 99.5%. However, we are not responsible for downtime caused by force majeure or by errors that lie outside our area of responsibility.

Services

QMedia Connect enables the integration of various pre-programmed interfaces. We also offer the option of reviewing custom interfaces at the customer’s request and integrating them for a fee.

Scope of functions and updates

The scope of functions of the respective connections to QMedia Connect is not static and may be extended or modified over time. We carry out updates regularly and automatically. The customer has no influence on the scope of functions and therefore can neither request specific functions nor take legal action on the basis of changes to the scope of functions. However, we are always open to feedback and strive to make QMedia Connect as customer-oriented and advanced as possible.

Product categorization

Unless otherwise agreed with us in writing, QMedia Connect is a standardized product and not custom software. The Service is provided “as is” and without express or implied warranties of any kind.

Disclaimer of liability

QMedia IT GmbH is not liable for direct, indirect, incidental, special or consequential damages of any kind, including but not limited to loss of earnings, additional effort or loss of data quality, arising from the use of or inability to use our Service, even if we have been advised of the possibility of such damages.

Responsibility for data management

The User is solely responsible for the selection, management and modification of the data that the User manages via QMedia Connect. We are not liable for the accuracy, quality or reliability of data managed or modified by the User via our Service.

Privacy notice

Our platform is hosted on Firebase, a Google product. The data is stored and processed in accordance with the privacy policies of Firebase and Google. We accept no liability for the data protection practices or content of Firebase or Google.

Changes to the Terms

We reserve the right to change these Terms at any time without prior notice. Changes take effect as soon as they are published on our platform. By continuing to use our services after changes have been published, you automatically accept the updated Terms.

Subscription and notice periods

Subscriptions for QMedia Connect can be canceled monthly with a notice period of one month. To cancel your subscription, written notice must be sent to us and must be received by us no later than one month before the desired cancellation date.

Place of jurisdiction and applicable law

These Terms are governed by the laws of the Republic of Austria. The place of jurisdiction is Steyr, Austria.

Severability clause

Should any provision of these Terms of Use be invalid, void or unenforceable for any reason, that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision that comes as close as possible to the invalid or unenforceable provision in economic terms.

Contact

If you have any questions about these Terms of Use, please contact: QMedia IT GmbH, Leopold-Werndl-Straße 25/9b, Steyr, Austria Email: office@qmedia.at