General Terms & Conditions of DRS DefectRadar GmbH

(Hereinafter “Terms and Conditions” or “GTC”)

1. Preamble

DRS DefectRadar GmbH, company register no. 400573d, Company Court Vienna, Seilerstätte 13/23a, 1010 Vienna, (hereafter „DefectRadar“) develops, distributes and manages software in the field of construction documentation and defect management.
These terms and conditions govern the rights and obligations between DefectRadar and Customers of DefectRadar. Customers of DefectRadar are entrepreneurs within the meaning of § 1 Para 2 Austrian Consumer Protection Act.

2. Scope

2.1 These Terms and Conditions regulate the business relationship between DefectRadar and Customers of DefectRadar, whether or not services are paid or unpaid (such like in test phases). DefectRadar provides its services on the basis of these Terms and Conditions. The mere use of the services of DefectRadar by the Customer causes that these Terms and Conditions are applied for such a business relationship.

2.2 In addition to these Terms and Conditions the current price lists of DefectRadar (available at www.defectradar.com) shall apply, as well as individually negotiated contract terms in writing.

2.3 In case the Customer themselves have terms and conditions, the Customer confirms by using the services of DefectRadar that between the Customer and DefectRadar only these objective Terms and Conditions shall be in force. Terms and Conditions of Costumers which diverge from those of DefectRadar come into force only after DefectRadar having expressly agreed on their validity in writing.
2.4 Individual agreements are to be made in writing (signature). Informal declarations of DefectRadar (also by e-mail) are non-binding.

2.5 DefectRadar is entitled to change these terms and conditions unilaterally. The change is communicated to the Customer by e-mail two months prior to their entry into force. The Customer is entitled to object to the change in writing within four weeks after receiving the respective notification by e-mail. The amendment shall be deemed accepted and binding if the user consented to the change, or has not objected to the change within the four- week period. DefectRadar shall separately draw in the notification e-mail attention to these legal consequences and the possibility of contradiction.

3. Services of DefectRadar

3.1 DefectRadar provides the Customer with a system, consisting of several modules (if applicable), for construction documentation and defect management (hereinafter referred as “Product”). The Customer benefits from an ongoing development of the product and, in return, acknowledges that temporary maintenance time can occur in the course of updates and upgrades.

3.2 DefectRadar reserves the right to discontinue the product and all specifications of the product due to technical or operational reasons. DefectRadar will notify the Customer at least by e-mail at least two months before such discontinuance.

3.3 DefectRadar is liable only for the services provided by DefectRadar itselves. If the Customer calls in a third party – for whatever reason – (in any case such assistance requires the written consent of DefectRadar in advance), the Customer has no claim against DefectRadar and DefectRadar is indemnified and held harmless by the Customer.

4. Obligations of the Customer

4.1 The Customer undertakes not to use technical equipment, software or other data that could lead to a damage of the system of DefectRadar. The Customer is not entitled to make changes to the product.

4.2 The Customer shall ensure that its employees and third parties attributable to the Customer will treat the product provided by DefectRadar carefully. The Customer is liable to DefectRadar for any wilfully or negligently damage incurred by the Customer or its agents and companies.

4.3 The Customer undertakes not to misuse products of DefectRadar, not to make the products available to third parties and not to sell or otherwise trade with it.

4.4 The Customer shall treat the products of DefectRadar carefully and keep them in such a way that third parties do not have access to the products. The Customer is liable to DefectRadar for all damages for breach of undertaken obligations. 
4.5 If the Customer’s products, which are ceded by DefectRadar for use, are locked due to an event which falls within the Costumers’ sphere, the Customer is liable to DefectRadar in addition to the costs incurred thereof, also for the costs resulting of the contract.

4.6 The Customer agrees to be announced by DefectRadar for external publications as a reference Customer. It is agreed that DefectRadar coordinates with the Customer the use of Customer logos, project data, etc. to publication previously.

5. Terms of Use

The Customer undertakes to use the product provided by DefectRadar in accordance with these Terms and Conditions only and not to use the service provided or memory space, in particular not for storage or dissemination of illegal content.

The Customer agrees towards DefectRadar to assume sole responsibility for compliance with the legislation. The Customer further undertakes not to use the contractual services in any way and ensures that they are not subject to any use of third parties, which leads to impairment of third parties or leads to security or operational risks for DefectRadar. The Customer undertakes, upon first request, DefectRadar fully indemnify and hold harmless from all third party claims for breach of this obligation.

6. Defaults

6.1 DefectRadar provides the Customer with the product. DefectRadar is not liable for defaults and any resulting direct or indirect damage on part of the Customer. In particular, defaults may occur due to communication errors (whether they are within the sphere of DefectRadar or not) or necessary maintenance by DefectRadar.

6.2 The Customer agrees to DefectRadar to assist DefectRadar free of charge for remedy defaults. The Customer will notice DefectRadar about defaults immediately, so that a remedy can be carried out as soon as possible.

6.3 The Customer undertakes to take all necessary measures to ensure that no adverse effects on the performance of services of DefectRadar occur.

6.4 DefectRadar cannot guarantee that there is no data loss or other damages caused in particular due to damages in the context of the internet connections of the Customer in the course of synchronization operations. DefectRadar is not liable for the aforementioned, regardless of a possible negligence of DefectRadar or one of its subcontractors.

7. Warranty and Liability

7.1 DefectRadar accepts no responsibility or liability in the event of failure of the product, irrespective of the cause of the failure.

7.2 DefectRadar is liable only for intent and gross negligence and in the case of personal injury also for slight negligence.

7.3 DefectRadar is not liable for damages to Customer terminals, third or consequential damages such as loss of earnings or loss of profit. Specifically excluded is the warranty and liability for damages of the Customer due to delayed projects resulting out of the none or poor performance of the products of DefectRadar. There is also no liability of DefectRadar for lost savings, lost data, indirect or consequential damages or damages resulting from claims of third parties. If liability cannot be excluded by law, the liability for any damage-causing event is limited to EUR 5,000, the aggregated liability (total of all damage-causing events) with EUR 10,000. If the actual damage is higher than EUR 10,000, the claims of individual injured parties are to be reduced proportionately.

7.4 DefectRadar is not liable for damage or defects occurred in connection with changing the software, changing the necessary system-settings or application errors.

7.5 As long as such obligations arise due to force majeure, such as war, terrorism, natural disasters, fire, strike, lockout, embargo, governmental intervention, failure of power supply, failure of transportation, failure of telecommunications networks or data lines, impacts on the products of DefectRadar by changes in the law after the contract signing or other unavailability of products, cannot be met in timely and appropriate manner, this does not constitute a breach of contract.

7.6 Risky Environment: The product may contain components that react negatively to errors or contained errors may be detected later and corrected in the course of usual patches. The product was not designed and is not intended to be used in hazardous environments requiring fail-safe (fault tolerant) performance or in any other application where failure of the product could result directly to death, personal injury, severe property damage or environmental damage.

7.7 The Customer terminal equipment and the internet connection are not subject of services of DefectRadar. DefectRadar is not liable for damage or defects that are beyond its sphere of influence (in particular, disturbances of public communications networks, lack of system requirements …). Current system requirements for using DefectRadar can be found on www.defectradar.com.

8. Rights of use of software products and documents

8.1 If the Customer is entitled or enabled within the scope of services to use products of DefectRadar, the Customer has the non-exclusive, non-transferable, non-sub licensable, at any time by DefectRadar unilaterally withdrawable, limited right to use the software products in unmodified form.

8.2 If the Customer is using software products which are ceded to the Customer by DefectRadar, the licenses of the producers of these software products shall prevail to this point 8.

8.3 If no special agreement is made, there is no transfer of rights to the Customer in relation to software products. In particular, the Customer does not acquire any rights whatsoever to the product, in particular, no trademark, patent or other intellectual property rights.
8.4 All the documents provided from DefectRadar to the Customer, in particular the documentation for software products, may not be copied or with or without charge distributed in any way.

9. Nondisclosure

9.1 The Customer warrants DefectRadar to treat all business secrets in connection with this Agreement and its implementation, of which the costumer is aware of, as such and warrants not to make them accessible to third parties, insofar as these are not generally known, or already known to the recipient in advance without obligation of confidentiality, have been communicated or left to the recipient from a third party without the obligation of confidentiality, or are proven to be developed by the recipient independently, or are to be disclosed under a final administrative or judicial decision.

9.2 Subcontractors of DefectRadar are not considered as third parties to the extent they are subject to a content corresponding obligation according to this point confidentiality.

9.3 Violations of the obligation of nondisclosure mean that the Customer is liable to DefectRadar for all damage.

10. Term and Termination

10.1 Contracts between DefectRadar and Customer are – except when otherwise expressly stipulated – concluded for an indefinite period of time. The Customer waives any right to terminate the contract for the period held in the product descriptions or individual agreements.

10.2 Both DefectRadar and the Customer may terminate a concluded indefinite contract at the end of the offset period. Termination shall be effected on the DefectRadar platform by an administrator employed and authorized by the Customer.

10.3 An extraordinary termination by DefectRadar with immediate effect – in this case the Customer has no claims against DefectRadar – is possible particularly under the following conditions:

10.3.1 The Customer gives incomplete or inaccurate information or fails to provide required proofs.

10.3.2 The Customer is in default of payment to the extent of 14 days; a period of grace is not required.

10.3.3 There is a reasonable suspicion that services are misused – also by third parties.

10.3.4 There are reasonable doubts of the creditworthiness of the Customer, such as the credit report is negative, a non-judicial composition proceedings has been achieved, there was an institution of bankruptcy or reorganization proceedings or dismissed for lack of funds; legally binding provisions shall not be restricted.

10.4 Instead of cancelling a contract immediately, DefectRadar is entitled to ask for a guarantee (deposit, guarantee, bank guarantee of an authorized Institute in the European Economic Area) from the Customer if there is a reason for termination. Furthermore DefectRadar is entitled to request advance performance like payment for services up to 6 month in advance in cases of termination reasons in this point 10.

11. Copyright

11.1 All title and copyrights as well as industrial copyrights to the Software (including but not limited to any images, photographs, animations, video, audio, music, text and “applets” that are contained in the Software Product), the accompanying printed materials, and any copies of the software belong to DefectRadar or subcontractors of DefectRadar. The Software is protected by copyright laws and international copyright treaties, as well as other laws and agreements concerning intellectual property. The Software is licensed, not sold.

11.2 Use of the Client Software: The Customer may use the Client software that has been installed on the end-user devices only in accordance to his contract partner for this service and only in connection with objective services covered.

11.3 Use of Redistribution Software: The Customer may use Redistribution Software only with the explicit approval to the supplementary provisions of the producer.

11.4 Backups: The Customer may not make any backup copy of the software, except to the copies, which the Customer may make in connection with the use of Redistribution Software.

11.5 The Customer is not entitled to modify the software in a way that its development is reversed, to decompile or disassemble, unless (and only to the extent) it is expressly permitted by applicable law notwithstanding this limitation.

11.6 Transfer Restrictions: The Customer may not license the software to third parties nor distribute a sub-license, nor lend, transfer by lease or transfer otherwise. The User is not entitled to transfer the software, directly or indirectly, or distribute it to third parties.

11.7 The temporary assignment of subcontractor access according to the product description is granted, where applicable.

12. Information obligations

12.1 The Customer informs DefectRadar of any changes in address or other significant information immediately. If the Customer misses to do this, the declarations of DefectRadar are also deemed to be delivered when being delivered to the communication possibilities last valid.

12.2 The Customer accepts that DefectRadar is entitled to communicate with the Customer legally relevant declarations by e-mail, SMS or other electronic media (this also applies to invoices; where applicable invoices are electronically signed to comply with the provisions of the VAT Act). Statements shall be deemed received when the Customer is able to check or take notice under normal circumstances.

12.3 Non-registered mail shall be deemed to be received within 2 business days after sent.

13. Payment and other financial terms

13.1 All amounts are (unless specifically stated) exclusively to each of the currently applicable VAT tax and other levies.

13.2 Fixed charges are billed in advance for the respective accounting period.

13.3 Claims for payment are due in accordance with the conditions of the payment provider
Fastspring (http://www.fastspring.com/) – unless otherwise stated.

13.4 The Customer shall bear charges in connection with the cash transfer, like bank charges
and other expenses.

13.5 For late payments, the Customer shall be billed default interest in the amount of 10% p.a. of the outstanding amount, and in addition overdue fines. All necessary and appropriate related costs incurred for the intervention of lawyers and collection agencies are to be borne by the Customer.

13.6 A deduction of discount is excluded and will not be granted.

13.7 Payments of the Customer will be credited against the oldest debt.

13.8 DefectRadar is entitled to unilaterally raise prices for its products appropriately and will inform the Customer on time, at least one month in advance.

13.9 Invoices shall be accepted if no written objection has been raised within 3 months of billing and the Customer does commence the legal process within further 2 months.

13.10 Offsetting by the Customer with claims against DefectRadar is excluded. A retention right of the Customer is also excluded.

14. Other provisions

14.1 Should one or several provisions of these GTC wholly or partially be invalid or unenforceable, the validity of the remaining provisions shall not be affected. The invalid or unenforceable provision shall be replaced by an analogous valid provision, which serves the economic purpose of the invalid or unenforceable clause as closely as possible.

14.2 The assertion of claims on the grounds of laesio enormis against DefectRadar is excluded.

14.3 Any decision of the Customer on the rights or obligations existing under the contract demands the prior written consent of DefectRadar. However DefectRadar is entitled to transfer contracts without the consent of the Customer to a third party. In this case, these GTC shall continue to apply to the contractual relationship, unless otherwise determined unilaterally by DefectRadar.

14.4 DefectRadar is entitled, in whole or in part, to use third parties to meet its obligations.

14.5 Governing Law is the law of Austria, even if the use of the product is carried out abroad or any other reference is made to the foreign country. Excluded are also the conflicts of law rules of Austria as well as the CISG.

14.6 The local jurisdiction of the competent Court of Vienna Inner City is agreed for any disputes. The place of performance is also agreed to be Vienna Inner City.