1. Definition and document hierarchy
1.1.
The following terms shall have the following meanings in the context of the contractual relationship:
| Term | Description |
|---|---|
| Go-Live | The date on which the Services are first made available to the customer. In the event that the customer is prevented from making the Services available or in the event of a breach of the customer’s obligations to cooperate, the last mutually agreed date shall be deemed to be the Go-Live date. |
| Force majeure | Force majeure is an extraordinary event affecting the services from outside, which does not occur with a certain frequency and regularity and is not to be expected, and which can neither be averted nor made harmless in its consequences by the utmost reasonable care. |
| Customer | The contractual partner named in the provider’s offer. |
| Service package | Refers to the scope of services defined by the provider in the subscription model: Starter, Growth, Business and Enterprise. |
| Minimum subscription period | Defines the period during which the (ordinary) termination of the contractual relationship cannot be declared. |
| Provider | Captcha GmbH, Muthgasse 2, 1190 Wien |
| Services | The provider provides the customer with online access to a CAPTCHA software solution (Completely Automated Public Turing Test to tell Computers and Humans Apart) in the form of a Software-as-a-Service (SaaS) solution. This is a security mechanism also known as challenge-response authentication. |
| Service contract | The contractual relationship between the customer and the provider arising from the use of the services |
| Support time | Provider support is provided on Austrian working days (but not on 24. and 31.12) between 9 am and 5 pm CET or CEST. |
| Tickets | The reporting of faults or requests for service by the customer in the provider’s ticketing-system. |
| Time & Material | Refers to a billing method in which billing is based on the actual work performed at the agreed hourly rate plus the external costs and expenses required for the project. |
| Updates | Minor functional enhancements and bug fixes (patches) are provided to the customer during the contract period at no additional cost. |
| Upgrades | More extensive functional extensions of the software on which the services are based (both within the service package and in higher service packages) or extended services can be made available by agreement for a fee. |
| Contract month | The contract month begins with the Go-Live and ends on the day before the Go-Live in the following month. |
1.2.
The service contract between the contracting parties consists of the following contractual documents. The principle applies tha in the event of contradictions, the more specific document takes precedence over the general document as follows:
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i) Offer;
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ii) These General Terms and Conditions: All provisions of these GTC are subject to the proviso that no express deviating provision has been made in the offer;
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iii) Order Processing Agreement (“OPA”): Exclusively for the purpose of fulfilling the regulatory requirements in the area of data protection and data security, the OPA takes precedence over the other contractual documents.
2. Scope of the GTC
2.1.
The following General Terms and Conditions (GTC) apply to all relationships between the customer on the one hand and the provider on the other hand from
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✓ the provision of access to the provider’s services; and
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✓ the provision of services in connection with the services.
2.2.
The version of the GTC valid at the time of the conclusion of the contract shall apply in each case.
2.3.
These GTC shall apply even if no express reference is made to them in the individual case.
2.4.
Deviating, conflicting or supplementary General Terms and Conditions (GTC), even if known, shall not become part of the contract unless the provider has expressly agreed to their validity in writing.
2.5.
The provider hereby expressly objects to the customer’s GTC.
2.6.
Amendments to the GTC shall be notified to the customer and shall be deemed agreed if the customer does not object to the amended GTC in writing within 14 days; the customer shall be expressly informed of the significance of silence in the notification.
2.7.
These GTC are designed for use with customers who are entrepreneurs within the meaning of the Consumer Protection Act.
3. Pre-contractual information and regulations before conclusion of the contract
3.1.
The provider’s services may contain suggestions on how to comply with legal obligations. These suggestions are not binding advice; the provider does not offer legal advice. It is up to the customer to decide whether to follow the suggestions, reject them or otherwise comply. The provider advises the customer to check the proposals for correctness and completeness and to seek advice in this regard from suitable persons. The customer alone shall remain responsible for compliance with the legal and contractual obligations incumbent upon him.
3.2.
All offers of the provider are non-binding and subject to change, unless an express term of acceptance is stated.
3.3.
The provider may grant the customer access to a demo version of the system during the contract negotiations. The customer agrees to use the access solely for the purpose of evaluating the Services. The possibility of use may be revoked by the provider at any time.
4. Conclusion of contract and subject matter
4.1.
The conclusion of the contract is effected by timely acceptance of the provider’s offer.
4.2.
All performance deadlines promised by the provider are subject to the condition that the customer fulfils his payment and cooperation obligations.
4.3.
The subject matter of the service contract is the provision of access to the services. The provider is obliged to maintain, keep functional and update the software on which the Services are based.
4.4.
The provider does not grant the customer any copyright licensing, exploitation, usage or processing rights to the software underlying the Service, including in particular any software modified on behalf of the customer.
4.5.
The scope of services results from the offer and the service package described therein.
4.6.
The provider undertakes to fulfil the Go-Live by the date specified in the offer, provided that no unexpected delays are caused by the customer.
5. External servieces
5.1.
The customer acknowledges that the services offered by the provider may also be offered with the involvement of third-party providers who are disclosed to the customer and are not attributable to the provider as vicarious agents.
6. Updates, release planning and support
6.1.
The customer participates in the updates at no further cost.
6.2.
The customer has no claim to a specific functional extension within the framework of the service contract.
6.3.
The implementation of functional extensions is carried out according to the provider’s business requirements and possibilities.
6.4.
The provider intends to further develop the software. Within the scope of its possibilities and in coordination with the customer, it shall ensure that the customer’s requirements for the technology are incorporated into the release planning in good time. For this purpose, a regular exchange of information between the contracting parties shall take place if possible.
6.5.
The provider agrees to enable the customer to switch to a higher-quality service package in accordance with business requirements and possibilities.
7. Additional orders
7.1.
Services of the provider outside the agreed scope in the area of updates and support, in particular changes, shall be remunerated separately by the customer.
7.2.
If the customer requests specific changes to the Services, the provider will provide the customer with a written quotation to that effect.
7.3.
The customer does not have a claim to the implementation of changes.
7.4.
Unless the price shown is expressly designated as a lump sum price and the service is stated in hours, the offer is a cost estimate and the customer shall pay the provider for the services according to actual expenditure (“time & material”).
8. Availability and SLA
8.1.
The provider provides its services with care and reliability. However, the provider cannot guarantee the continuous provision of its services.
8.2.
The provider promises the customer an availability of its services (but not for third-party services) of at least 98% uptime and general availability on an annual average.
8.3.
This does not include predefined maintenance periods and outages due to force majeure. Maintenance-related interruptions lasting less than 10 minutes do not require advance notice and are permitted between 10 p.m. and 6 a.m. Predefined maintenance work lasting longer than 10 minutes requires the customer’s consent.
8.4.
To determine the availability of the provider’s services, the values measured by the provider are used on the basis of the annual average.
8.5.
Depending on the service package, the customer is also entitled to technical support through access to the ticketing-system.
8.6.
The provider’s support is provided during the support period. The provider does not promise to be on call outside support hours.
8.7.
For the processing of tickets, the provider prioritises them according to the following criteria:
| Priority | Description |
|---|---|
| Critical | The intended use of the services is not possible or is unreasonably restricted. The error has a serious impact on business processing and/or security. All users are affected. |
| High | The appropriate use of the services is severely restricted. The error has a significant impact on business processing and/or security, but allows work to continue. All or a group of users are affected. |
| Medium | The intended use of the services is slightly restricted. The error has an insignificant impact on business processing and/or security, but allows further processing without restriction. A group or individual users are affected. |
| Low | The intended use of the contractual software is possible without restriction. The error has no or only a minor influence on business processing and/or security. Individual users are affected. Employees of the customer can also rectify the error themselves. |
8.8.
Depending on the priority, the following provider response times apply:
| Priority | Response time standard support within the support period |
|---|---|
| Critical | 4 hours |
| High | 8 hours |
| Mittel | 2 working days |
| Niedrig | 5 working days |
9. Rights and obligations of the customer
9.1.
The customer is responsible under data protection law, the provider is its processor.
9.2.
The customer undertakes to use the provider’s services only in compliance with the statutory provisions and to refrain from any improper use.
9.3.
The Customer undertakes to use the Provider’s services only within the scope of the statutory provisions and to avoid any improper use.
9.4.
The customer shall bear the expense incurred by the fact that work has to be repeated or is delayed by the provider as a result of his incorrect, incomplete or subsequently changed information.
9.5.
The customer will also appoint a competent contact person who will be authorised to make statements. If test runs, access to the customer’s system, acceptances, presentations or other meetings are necessary or expedient, the customer undertakes to assign competent employees authorised to make decisions.
10. Charges
10.1.
The ongoing service fee is generally due from Go-Live and in advance at the beginning of the contracted month or contract year. Unused monthly inquiries expire at the end of the month.
10.2.
The customer has the option to purchase additional packages in addition to his selected service plan. The inquiries from the additional packages are to be used up by the customer within 12 months after purchase and expire after this period.
10.3.
Inquiries will first be credited to the credit from the service flat rate and then to the credit from the additional packages. If there are several additional packages, the credit will be applied to the oldest additional package.
10.4.
If no flat fee has been agreed for a additional order , the provider shall charge the hourly rate shown in the offer. If no hourly rate is specified, an amount of net €150.00 per hour applies.
11. Terms of payment
11.1.
All prices quoted by the provider are net prices; the statutory value added tax will be charged additionally.
11.2.
All invoices of the provider are due for payment within 14 days of the date of the invoice.
11.3.
The provider is entitled to issue interim invoices or to call for payments on account.
11.4.
In the event of default in payment by the customer, the statutory default interest shall apply at the rate applicable to business transactions. Furthermore, in the event of default in payment, the customer undertakes to reimburse the provider for any dunning and collection expenses incurred, insofar as they are necessary for appropriate legal action. This includes in any case the costs of two reminder letters of € 15.00 each as well as the standard costs of a reminder letter of a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected.
11.5.
In the event of default in payment by the customer, the provider may declare all services and partial services rendered immediately due and payable.
11.6.
In the event of late or incomplete payment, the provider reserves the right to block the customer’s access to the Services. Furthermore, in the event of default, the provider is not obliged to provide further services until the outstanding amount has been settled (right of retention). The customer’s obligation to pay fees remains unaffected.
11.7.
The customer is not entitled to offset his own claims against claims of the provider unless the customer’s claim has been recognised by the provider in writing or has been established by a court of law.
11.8.
Not expressly dedicated payments are generally credited first to costs and expenses, then to interest and finally to the principal. However, the provider is entitled to credit incoming payments first against the oldest claim.
11.9.
The monthly service fee and the hourly rate are index-linked in accordance with the Consumer Price Index (CPI) 2020 published by Statistik Austria. The starting point shall be the index figure published for the month in which the service contract commences, and the calculation basis for the future service fee shall be the index figure most recently published at the end of the calendar year. The contracting parties are entitled to demand an adjustment of the service fee and the hourly rate in writing once a year on January 1st of the respective year, at the earliest, however, after one calendar year and with effect exclusively for the future.
12. Duration / Cancellation / Minimum Subscription Period / Cancellation of Contract
12.1.
The service contract is concluded for an indefinite period.
12.2.
For subscriptions for a specific period of time (e.g. annual packages), this period is considered as the minimum subscription period. This minimum subscription period agreement allows the the service contract to continue during the minimum subscription period.
12.3.
The service agreement may (after expiry of the minimum subscription period) in principle be terminated in writing by either contracting party subject to a notice period of 1 day to the end of the respective prepaid period without stating reasons.
12.4.
Each contracting party is free to terminate the service contract for good cause. In the case of important reasons that can be remedied, a warning including a reasonable grace period of at least 14 days is required before termination for an important reason can be declared.
13. Warranty
13.1.
The provider warrants its services against payment in accordance with the statutory provisions.
13.2.
The services are based on the provider’s own development and are provided to the customer “as is” (and with the commissioned modifications, if applicable). The provider makes no express promises of any particular functionality or interoperability with existing or future needs of the customer.
13.3.
The provider shall provide all Services in accordance with the existing technical, economic, operational and organisational possibilities. The provider shall not be liable for any interruptions, malfunctions, delays, deletions, transmission errors or storage failures in connection with the use of the services.
14. Liability
14.1.
The liability of the provider and that of its organs, employees or other vicarious agents (“Contributors”) is limited on the merits to intent or gross negligence; liability for slight negligence is excluded. This exclusion of liability does not apply to personal injury and damage to property which the provider has taken over for processing. Insofar as the provider’s liability is excluded or limited, this shall also apply to the personal liability of its contributors.
15. Data protection
15.1.
The provider declares to comply with austrian/european data protection law and to provide the customer with sufficient guarantees for lawful and secure data processing.
15.2.
All data provided by the customer remains the responsibility of the customer, who is also the responsible person within the meaning of the GDPR.
15.3.
The provider acts as a data processor for the customer within the meaning of Art. 4 No. 8 and Art. 28 et seq. of the GDPR, so that a supplementary DPA must be concluded between the contracting parties.
16. Secrecy
16.1.
The contracting parties shall treat all information and documents which they receive from or become aware of via the other party in strict confidence, at least with the same care as their own information of the same kind. Items shall be stored and secured in such a way that knowledge and misuse by third parties are excluded. The obligations apply in particular to software and data. They shall remain in force permanently even after termination of the contract.
16.2.
Information and documents may only be used for the purpose of implementing the contract. They may only be disclosed to such employees, subcontractors and professionals who need to know them for the performance of the contract. Employees, subcontractors and professionals shall, at the request of the other party, be bound in writing directly for the benefit of that party to maintain confidentiality in accordance with these rules.
16.3.
The duty of confidentiality shall not apply to information and documents which are or become public knowledge without this being due to a breach of contract by the party or which the receiving party has received from third parties authorised to disclose them to the general public. Any party relying on these exceptions shall bear the burden of proof.
17. Reference
17.1.
Subject to the customer’s written revocation, which is possible at any time, the provider is entitled to refer to the business relationship with the customer on its own advertising media and in particular on its website with the name and company logo.
18. Other
18.1.
Amendments or supplements to this contract must be made in writing. The transmission of a document signed by the company as a digital copy (in particular scan) complies with the written form. All this also counts for the abandonment of the written form.
18.2.
Should individual provisions of the contract be or become invalid in whole or in part, or should there be a loophole in the contract, this shall not affect the validity of the remaining provisions.
18.3.
The place of fulfillment is 1190 Vienna.
18.4.
Austrian substantive law shall apply to the exclusion of the conflict of law rules.
19. Place of jurisdiction
19.1.
For all disputes arising in connection with the present contract, including preliminary and subsequent effects, the exclusive jurisdiction of the court having subject-matter jurisdiction for 1190 Vienna is agreed.