Software-as-a-Service (Saas) contract

ibindo – the digital guest registration form

 

ibindo GmbH
Hauptstr. 101
2123 Hautzendorf

Contact:
servus(at)ibindo.at

Supervisory Authority: Bezirkshauptmannschaft Mistelbach

By registering an account or logging in to ibindo, you accept the following terms of use.

ibindo GmbH, Austria is hereinafter referred to as the “Operator”.

1. scope of contract and validity

1.1. All orders and agreements are legally binding if they are accepted by the service user in the course of a registration on ibindo.at or in the course of an offer and are only binding to the extent specified in the order data processing contract (see User Dashboard). ibindo is a service of ibindo gmbh which is provided as a Saas solution (Software-as-a-Service) with the name “ibindo”.

1.2. The terms and conditions are regulated by this contract between the operator (ibindo gmbh) and the account creator, user or offer recipient (hereinafter referred to as “customer”). Any terms and conditions of purchase of the customer are hereby excluded for the present legal transaction and the entire business relationship. Offers are always subject to change.[Textflussumbruch]The customer can collect guest registration forms for his customers (hereinafter referred to as “guests”) with ibindo, which can use ibindo according to their rights assigned by the customer.

1.3. This contract regulates the relationship between the operator and the customer.

1.4. The services offered by the operator are aimed exclusively at commercial interested parties (accommodation establishments, hospitality industry, SME companies, …) and not at private individuals (consumers).

1.5. The services offered by the operator are aimed exclusively at commercial interested parties (accommodation establishments, hospitality industry, SME companies, …) and not at private individuals (consumers).

 

2. performance and testing

2.1. The subject of an order may be:

– Development of organizational concepts
– Development of organizational concepts
– Creation of individual programs
– Delivery of library (standard) programs
– Acquisition of usage rights for software products
– Acquisition of permits for the use of works
– Participation in commissioning (changeover support)
– Telephone consultation
– Program maintenance
– Creation of program carriers
– Other services

2.2. The elaboration of individual organizational concepts and programs is carried out according to the type and scope of the binding information, documents and aids provided in full by the customer. This also includes practical test data as well as test facilities to a sufficient extent, which the customer provides in a timely manner, during normal working hours and at its own expense. If the customer is already working in live operation on the system provided for testing, the responsibility for backing up the live data lies with the customer.

2.3. The basis for the creation of individual programs is the written service description, which the operator prepares against cost calculation on the basis of the documents and information provided to him or the customer provides. This service description is to be checked by the customer for correctness and completeness and to be marked with his approval. Change requests occurring later can lead to separate appointment and price agreements.

2.4. Individually created software or program adaptations require program acceptance by the customer for the respective program package at the latest four weeks after delivery. This is confirmed in a protocol by the customer. (Check for correctness and completeness on the basis of the performance specification accepted by the operator by means of the test data provided under point 2.2). If the customer allows the period of four weeks to elapse without accepting the program, the subscribed software shall be deemed accepted as of the end date of the said period. If the customer uses the software in live operation, the software shall be deemed subscribed in any case.

2.5. Any defects that occur, i.e. deviations from the service description agreed upon in writing, are to be reported by the customer to the operator with sufficient documentation, who will endeavor to remedy the defects as quickly as possible. If there are significant defects reported in writing, which means that live operation cannot be started or continued, a new acceptance is required after the defects have been rectified.

2.6. The customer is not entitled to refuse acceptance of software due to immaterial defects.

2.7. When ordering library (standard) programs (examples: ibindo Start, Pro, Agency) the customer confirms with the order the knowledge of the scope of services of the ordered programs.

2.8. If in the course of the work it turns out that the execution of the order according to the service description is actually or legally impossible, the operator is obliged to notify the customer immediately. If the customer does not change the service description or does not create the prerequisite that execution becomes possible, the operator can refuse the execution. If the impossibility of execution is the result of a failure on the part of the customer or a subsequent change in the service description by the customer, the operator is entitled to withdraw from the order. The costs and expenses incurred for the operator’s activities up to that point, as well as any dismantling costs, are to be reimbursed by the customer.

2.9. Any shipment of program carriers, documentation and service descriptions shall be at the expense and risk of the customer. Any additional training and explanations requested by the customer will be invoiced separately. Insurance is provided only at the request of the customer.

2.10. We expressly point out that a “barrier-free design (of websites) in the sense of the Federal Act on the Equalization of Persons with Disabilities (Federal Act on the Equalization of Persons with Disabilities – BGStG)” is not included in the offer, unless this was requested separately/individually by the customer. If the barrier-free design has not been agreed upon, the customer shall be responsible for reviewing the service to determine whether it is permissible with regard to the Federal Disability Equality Act. Likewise, the customer must check the content provided by him for its legal admissibility, in particular under competition, trademark, copyright and administrative law. The operator is not liable for the legal admissibility of content in the case of slight negligence or after fulfillment of any duty to warn the customer, if the content was provided by the customer.

 

3. prices, taxes and fees

3.1. All prices are in Euro without sales tax. They apply only to the present order. The prices quoted are ex the operator’s registered office or place of business. The costs of data carriers for the transport of exports such as USB sticks or hard disks as well as any contract fees will be 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, conversion support, telephone consulting, etc.), the workload will be charged at the rates in effect on the day the service is provided. Deviations from a time expenditure on which the contract price is based, for which the operator is not responsible, will be charged according to actual occurrence.

3.3. The costs for travel, daily and overnight allowances will be charged to the customer separately according to the rates valid at the time. Travel times are considered working time.

3.4. In order to compensate for increased personnel, infrastructure and other costs, the operator has the right to change the prices and remuneration for the services covered by the contract. A price change is permitted at the earliest six months after conclusion of the contract and only once a year. The Provider shall notify the Customer of the change in writing no later than six weeks before it takes effect. If the customer does not accept the price increase, he is entitled to terminate the contract with a notice period of one month to the end of the calendar month, but only if the increase in the price is more than 10% of the previous price. In the event of termination, the prices which have not been increased up to the effective date of termination shall apply.

 

4. delivery date

4.1. The Operator shall endeavor to meet the agreed dates of performance (completion) as closely as possible.

4.2. The targeted fulfillment dates can only be met if the Customer completes all necessary work and documents by the dates specified by the Operator, in particular the service description accepted by the Customer according to item 2.3. and fulfills its obligation to cooperate to the extent required.

4.3. Delays in delivery and increases in costs caused by incorrect, incomplete or subsequently changed data and information or documents provided are not the responsibility of the operator and cannot lead to default on the part of the operator. Any resulting additional costs shall be borne by the customer.

4.4. In the case of orders comprising several units or programs, the operator is entitled to make partial deliveries or to issue partial invoices.

 

5. payment

5.1. The customer agrees to pay the amount for his concluded services at ibindo in due time plus. UST to be paid. Payment is made via the payment providers Stripe and Paypal and is billed either monthly or annually by direct debit, depending on the subject of the contract. The corresponding invoices are made available to the customer in his user account under “Invoices/Subscription”. Deviations with separate agreements are possible. Payment for services

5.2. In the case of orders comprising several units (e.g. programs and/or training, realizations in partial steps), the Operator 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 the execution of the delivery or fulfillment of the contract by the operator. Non-compliance with the agreed payments entitles the operator to stop the current work and withdraw from the contract. All associated costs and loss of profit shall be borne by the customer.

5.4. In the event of late payment, interest on arrears shall be charged at the rate customary in banking. In case of non-compliance with two installments in the case of partial payments, the operator is entitled to let loss of dates come into effect and to make handed over acceptances due.

5.5. The customer is not entitled to withhold payments due to incomplete total delivery, warranty or guarantee claims or complaints.

 

6. termination

6.1. The Saas contract is concluded for an indefinite period, unless otherwise agreed. Unless otherwise agreed, the use of ibindo can be terminated at any time at the end of the current month in the respective account (My Profile/Subscription).

6.2. Notwithstanding any previous provisions, any termination of subscriptions for renewal of the Payment Service shall take effect after the expiry of the respective term already paid by the Customer. It is noted that the cancellation process may take a few days. In order to avoid the next automatic renewal and the associated payment obligation, the cancellation should be made at least 14 (fourteen) days before the expiry of the then applicable service period.

6.3. If a customer’s ibindo account or services or third-party services are terminated (by the customer or by the operator), this may result in the loss of certain content, functions and data of your user account, including user content, guest registration form data or other usage data as well as all registrations that were included in the respective services (“data loss”). ibindo does not assume any liability for this kind of data loss nor for the backup of the customer account, guest registration forms, tourism statistics or other user data. The reactivation of a user account or the services of ibindo after a termination may be subject to additional fees at ibindo’s sole discretion.

 

7. copyright and use

7.1. After payment of the agreed fee, the Operator grants the Customer a non-exclusive, non-transferable, non-sublicensable right for an unlimited period of time to use the software for the services specified in the contract and to the extent of the purchased number of licenses for simultaneous use on multiple workstations. The customer also receives the right to use all work results created on the basis of the operator’s contract for his own, internal use. All other rights remain with the operator.

7.2. The customer’s participation in the production of the software shall not result in the acquisition of any rights beyond the use stipulated in the present contract. Any infringement of the Operator’s copyrights shall entail claims for damages, and in such a case full satisfaction shall be paid.

7.3. The customer is permitted to make copies for archiving and data backup purposes on condition that the software does not contain any express prohibition by the licensor or third parties and that all copyright and proprietary notices are transferred unchanged to these copies. In addition, the customer is responsible for regularly performing a data backup to protect against data loss due to e.g.: Hacker attack, password loss, etc. to protect. The operator does not accept any claims for damages or liability for data loss on the part of the customer. Furthermore, the customer may be charged additional costs as an expense allowance for a data recovery from their own backups.

7.4. Should the disclosure of the interfaces be necessary for the creation of interoperability of the software in question, this is to be ordered by the customer from the operator against reimbursement of costs. If the operator does not comply with this requirement and decompilation takes place in accordance with copyright law, the results are to be used exclusively to establish interoperability. Misuse will result in damages.

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

 

8. right of withdrawal/termination

8.1. In the event that an agreed delivery time is exceeded due to the sole fault or unlawful action of the Operator, the Customer shall be entitled to withdraw from the relevant order by registered letter or by sending a signed letter of termination by email to servus@ibindo.at or in the User Account under the item “Subscription”, if the agreed service is not provided in essential parts even within the reasonable grace period and the Customer is not at fault for this. Translated with www.DeepL.com/Translator (free version)

8.2. Force majeure, labor disputes, natural disasters and transport blockages, as well as other circumstances beyond the control of the operator, release the operator from the obligation to deliver or allow him to reset the agreed delivery time.

8.3. Failure to comply with ibindo’s terms and conditions or to pay the applicable fees on time entitles ibindo to block or terminate the customer’s account and the user platform (or certain functions) as well as all related services of ibindo (e.g. guest leaf links) and services of third-party providers (until full payment of the fees).

8.4. Cancellations by the customer are possible only with the written consent of the operator. If the operator agrees to a cancellation, he has the right to charge a cancellation fee in the amount of 30% of the unbilled order value of the total project, in addition to the services rendered and costs incurred.

8.5. We reserve the right for our free services (e.g. ibindo Gastro Cloud – single user) – to deactivate the user account and delete it after another 15 days if no active guest registrations are recorded in the first 30 days. Current contracts with a paid subscription are excluded from this measure.

 

9 Warranty, maintenance, modifications

9.1. The operator guarantees that the software fulfills the functions described in the associated documentation, provided that the software is used for the purpose of the described services.

9.2. The prerequisite for error correction is that the customer sufficiently describes the error in an error message and that this can be determined for the operator;
– the customer provides the operator with all documents required for troubleshooting;
– the customer or a third party attributable to him has not interfered with the software;
– the software is operated under the intended operating conditions according to the documentation.

9.3. In the case of warranty, improvement shall in any case have priority over price reduction or rescission. In the event of a justified notice of defects, the defects shall be remedied within a reasonable period of time, whereby the Customer shall enable the Operator to take all measures necessary for the investigation and remedying of the defects. The presumption of defectiveness acc. § 924 ABGB is deemed excluded.

9.4. Corrections and additions that prove necessary up to the handover of the agreed service due to organizational and programming deficiencies for which the operator is responsible shall be carried out by the operator free of charge.

9.5. Costs for assistance, misdiagnosis as well as error and fault elimination for which the customer is responsible as well as other corrections, changes and additions will be carried out by the operator against payment. This also applies to the rectification of defects if program changes, additions or other interventions have been made by the customer himself or by third parties.

9.6. Furthermore, the operator assumes no warranty for errors, malfunctions or damage resulting from improper operation, changed operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) and transport damage.

9.7. The operator provides the guaranteed services with the diligence of a competent company – this also applies to all services provided by its subcontractors and employees, for whose actions the operator is liable as for its own actions. The operator guarantees that the services provided by him are free of third party rights, so that the contractually guaranteed legal positions of the customer are not affected by third party rights.

9.8. For programs that are subsequently changed by the customer’s own programmers or third parties, any warranty by the operator is void.

9.9. If the subject of the order is the modification or supplementation of already existing programs, the warranty refers to the modification or supplementation. This does not revive the warranty for the original program.

9.10. Warranty claims shall become statute-barred six (6) months after handover.

 

10. liability

10.1. The operator is liable to the customer for damages demonstrably caused by him only in case of gross negligence. This shall also apply mutatis mutandis to damage caused by third parties engaged by the operator. In the event of personal injury caused by fault, the operator is liable without limitation.

10.2. Liability for indirect damages – such as loss of profit, costs associated with business interruption, loss of data or claims by third parties – is expressly excluded.

10.3. Claims for damages shall become statute-barred in accordance with the statutory provisions, but no later than the expiry of one year from knowledge of the damage and the damaging party.

10.4. If the operator provides the work with the help of third parties and in this context warranty and/or liability claims arise against these third parties, the operator assigns these claims to the customer. In this case, the customer will give priority to these third parties.

 

11. loyalty

The contracting parties undertake to be loyal to each other. They shall refrain from any enticement and employment, including through third parties, of employees who have worked on the realization of the orders, of the other contracting party for the duration of the contract and 12 months after the termination of the contract. The contracting party in violation thereof shall be obligated to pay liquidated damages in the amount of one year’s salary of the employee.

 

12. secrecy

The operator obligates its employees to comply with the provisions of § 6 of the Data Protection Act.

 

13. other

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

 

14. final votes

Unless otherwise agreed, the statutory provisions applicable between entrepreneurs shall apply exclusively under Austrian law, even if the order is executed abroad. For any disputes, the local jurisdiction of the court with subject-matter jurisdiction for the operator’s place of business shall be exclusively agreed. For sales to consumers within the meaning of the Consumer Protection Act, the above provisions shall apply only to the extent that the Consumer Protection Act does not mandatorily provide for other provisions.

In the event of disputes arising from this contract that cannot be settled by mutual agreement, the contracting parties agree by mutual consent to use registered mediators (ZivMediatG) for the out-of-court settlement of the conflict with the focus on

To consult EconomicMediation from the list of the Ministry of Justice. If no agreement can be reached on the selection of the business mediators or on the content, legal action will be taken at the earliest one month after the failure of the negotiations.

In the event that mediation does not take place or is terminated, Austrian law shall apply in any court proceedings that may be instituted. All necessary expenses incurred as a result of prior mediation, in particular also those for a legal advisor, may be claimed as “pre-litigation costs” in court or arbitration proceedings as agreed.