This is a courtesy translation. In the event of any discrepancy, the German version is legally binding.
1.1. RaDigSol e.U., with its registered office at Obergasse 49/2, 6167 Neustift im Stubaital, company register number FN644590b (hereinafter 'RaDigSol'), is a company that provides services in the field of software development and consulting and offers Software as a Service (SaaS, SOFTWARE) solutions.
1.2. Customers commission these services and the use of the SaaS on the basis of these General Terms and Conditions (GTC).
1.3. It is placed on record that the customer is an entrepreneur within the meaning of § 1 UGB (Austrian Commercial Code) and that no start-up transaction within the meaning of § 1(3) KSchG (Austrian Consumer Protection Act) is involved.
2.1. These GTC apply to all deliveries and services provided by RaDigSol to its customers in the area of services (software development, data analysis and consulting) and to the use of the software (SaaS). Depending on which services form part of the contractual relationship, the correspondingly marked clauses of these GTC apply.
2.2. The version valid at the time the contract is concluded shall be authoritative. In the case of an ongoing business relationship, these GTC form part of the contract even if they are not expressly mentioned.
2.3. The following contractual components apply to the contractual relationship between RaDigSol and the customer in the order stated:
2.4. General terms and conditions of third parties apply only if expressly confirmed in writing by RaDigSol. This also applies where the customer bases the conclusion of the contract on its own general terms and conditions, even if RaDigSol does not object to them despite being aware of them.
2.5. The attached data processing agreement (Annex 1; see also clause 15, data protection) forms an integral part of these GTC.
3.1. The scope of the services to be provided follows from the offer or the service description.
3.2. All services provided by RaDigSol (in particular all requirements, preliminary drafts, sketches, workflow descriptions and specifications) must be reviewed by the customer and approved within the offer period or, thereafter, within three days. If they are not approved in good time, they shall be deemed approved by the customer.
3.3. RaDigSol is entitled to make partial deliveries and provide partial services at any time.
3.4. In the event of changes to the services, RaDigSol will inform the customer of any effects (in terms of time, technology or price).
3.5. Applicable statutory provisions (e.g. CRA, NIS2, accessibility), standards or norms (e.g. ISO standards) form part of the services only where this has been expressly agreed.
3.6. It is clarified that RaDigSol does not owe a particular result unless this has been agreed in the individual case.
4.1. Upon receipt of the delivery, the customer must accept the agreed work without delay or, where acceptance tests have been agreed, begin these without delay. RaDigSol may also require functional testing and acceptance of services that do not constitute contracts for work. The customer shall provide test data in the agreed volume in machine-readable form, together with the test results it expects, in good time before the start of acceptance and in the formats specified by RaDigSol that are reasonable for the customer. RaDigSol is entitled to take part in the acceptance tests in whole or in part.
4.2. If a work has passed the acceptance test, the customer is obliged to issue a written declaration of acceptance within ten (10) working days of completion of the acceptance test.
4.3. Acceptance may not be refused on account of defects that only insignificantly impair the usability of the work. RaDigSol's obligation to remedy defects pursuant to clause 21 remains unaffected.
4.4. Acceptance shall in any event be deemed granted, even without a declaration of acceptance:
4.5. RaDigSol is entitled to require acceptance of separable partial services and interim results.
5.1. RaDigSol is entitled at its own discretion to perform the service itself, to use third parties in providing the services that are the subject of the contract and/or to substitute such services.
5.2. Auxiliary agents are engaged either in RaDigSol's own name or in the name of the customer, but in every case at the customer's expense.
6.1. Agreements on periods and dates must be recorded or confirmed in writing. The delivery time set for the delivery begins at the earliest upon receipt of the information finally fixed in all commercial and technical respects and after the customer has provided the services required for this purpose (e.g. provision of documents or information). Subsequent requests for changes and additions extend the delivery time appropriately.
6.2. If, during an ongoing delay, delivery becomes impossible by chance, RaDigSol shall not be liable if the damage would also have occurred had delivery been made on time.
6.3. Deliveries are generally made for the account and at the risk of the recipient from RaDigSol's registered office. All costs of transport and transport insurance up to the place of installation shall be borne by the customer.
6.4. In the event of force majeure or an operational disruption for which RaDigSol is not responsible (including at our business partners) which temporarily prevents RaDigSol from meeting the agreed dates and deadlines, those delivery dates and deadlines shall be extended by the duration of the performance disruptions caused by these circumstances. RaDigSol will inform the customer of the expected delay as soon as possible after becoming aware of such delays.
7.1. The software made available by RaDigSol as SaaS (hereinafter the 'SOFTWARE') is used by customers. Such use takes place exclusively on the basis of these GTC.
8.1. In order to use the services of the platform to their full extent, the customer must use the latest (browser) technologies or enable their use. If older technologies are used, the customer may not be able to use the services in full.
8.2. The customer must treat the access data (password, user name) as strictly confidential and protect it against unauthorised access by third parties. If the customer passes the access data (password, user name) on to third parties, the customer shall be liable to RaDigSol for all damage caused as a result.
8.3. The customer is obliged to create daily backups of all data stored/processed in the software and to ensure that the data is properly secured.
9.1. Particularly with a view to adequate IT security, RaDigSol reserves the right to carry out IT updates at its own discretion in order to ensure adequate IT security. RaDigSol will inform its customers in good time about planned update work and about any resulting costs for the customer.
9.2. In the case of individual developments for customers, service, further development and updates are invoiced separately at the hourly rates applicable at the time.
10.1. RaDigSol gives no warranty of constant availability of its services. Downtime due to maintenance, software updates and circumstances (such as technical problems of third parties or force majeure) that are outside RaDigSol's sphere of influence and for which it is therefore not responsible, and as a result of which the services it offers are not accessible via the internet, cannot be excluded.
10.2. RaDigSol is entitled to discontinue the service that is the subject of this contract in whole or in part if its security or the security of customers is at risk. RaDigSol also has this right if continued operation of the service or parts of the service is not economically reasonable for RaDigSol. RaDigSol will notify the customer of such measures without delay. In the case of chargeable products, RaDigSol may terminate them pursuant to clause 20.
11.1. The customer is aware that RaDigSol can only provide its services if RaDigSol is supplied without delay with all information and documents that are necessary and expedient for the provision of the respective service. The customer further declares that it will therefore inform RaDigSol of all circumstances that are necessary for RaDigSol to provide its services. The customer will inform RaDigSol of all matters that are relevant to the performance of the order, even if these circumstances only become known during performance of the order.
11.2. The customer shall bear the expense and additional costs arising from the fact that work has to be repeated or adapted by RaDigSol, or is delayed, as a result of incorrect, incomplete or subsequently amended information provided by the customer.
11.3. The customer is further obliged to check the documents made available by it for the performance of the order (plans, briefing documents, interface descriptions, database diagrams, logos, photos, texts, etc.) for any existing copyright, trademark or other third-party rights.
11.4. RaDigSol is not liable for any infringement of such rights. If claims are asserted against RaDigSol on account of such an infringement, the customer shall indemnify and hold RaDigSol harmless; the customer shall compensate RaDigSol for all disadvantages arising from claims by third parties.
12.1. Unless otherwise stated, billing on a time and material basis is agreed between RaDigSol and the customer. The hourly rates agreed for the respective project apply.
12.2. If the customer opts for SaaS, the prices valid at the time the contract is concluded apply. Recurring services are invoiced monthly or annually in advance, as stated in the offer.
12.3. Other works and services are generally invoiced in arrears (i.e. after delivery). However, RaDigSol may issue interim invoices. Such interim invoices are due immediately without deduction.
12.4. All prices are in euro and exclusive of statutory value added tax and plus all applicable charges and other taxes.
12.5. Unless otherwise agreed, RaDigSol's claim to payment arises for each individual service as soon as that service has been rendered, or for costs (e.g. travel expenses) as soon as they have been incurred. RaDigSol is entitled to demand advance payments from the customer.
12.6. All services provided by RaDigSol that are not expressly covered by the agreed prices shall be remunerated separately by the customer. All cash outlays and charges incurred by RaDigSol shall be reimbursed by the customer.
12.7. Cost estimates by RaDigSol are generally non-binding and subject to charge. If, in the course of performing the order, it becomes foreseeable that the actual costs will exceed the costs estimated by RaDigSol by more than 10%, RaDigSol will notify the customer of the higher costs.
12.8. Value stability of the estimated prices and hourly rates plus ancillary claims is expressly agreed. The Consumer Price Index 2020 (base year 2020) published monthly by Statistics Austria, or an index replacing it, serves as the measure for calculating value stability. An adjustment is made as at 1 January of the following year with effect for the following 12 months. The index figure calculated for the month in which the contract was concluded serves as the reference value. Fluctuations of the index figure upwards or downwards of up to (but excluding) 2% shall be disregarded. This margin is to be recalculated each time it is exceeded upwards or downwards, whereby the first index figure lying outside the applicable margin shall in each case form the basis both for redetermining the amount claimed and for calculating the new margin. All rates of change are to be calculated to one decimal place. Failure to assert the value adjustment does not constitute a waiver of it; rather, RaDigSol is entitled to assert this price adjustment for up to three years from the point in time at which a price adjustment should first have been made.
13.1. Billing takes place monthly in arrears (i.e. after delivery). However, RaDigSol may issue interim invoices; such interim invoices are due immediately without deductions.
13.2. If the customer opts for SaaS, billing takes place in advance, see clause 12.2.
13.3. Unless otherwise agreed, RaDigSol's invoices are to be paid within 14 calendar days of receipt of the invoice. Compliance with the agreed payment dates is a material condition for performance of the contract by RaDigSol.
13.4. Delivered goods remain the property of RaDigSol until payment has been made in full. The retention of title also secures our claims arising from the ongoing business relationship until settlement of claims to which we are entitled in connection with the purchase.
13.5. Bank transfers only count as payment once the amount has been credited to the account specified by us. Discount interest and all bank charges and the like shall be borne exclusively by the customer.
13.6. If the customer is in default of payment, RaDigSol is entitled, at its own option, to demand compensation for the damage actually incurred or default interest at the statutory rate. For entrepreneurs this is 9.2% p.a. above the base rate. This claim also covers compound interest. In addition, in the event of default of payment the customer undertakes to reimburse the judicial and extrajudicial costs as well as the reminder and collection expenses necessary for appropriate legal action. This includes in any event a lump sum of EUR 40 as compensation for collection costs pursuant to § 458 UGB. The assertion of further rights and claims remains unaffected. In the event of the customer's default of payment, RaDigSol is not obliged to render its own performance for as long as that default continues. Furthermore, in the event of default RaDigSol is entitled to declare all outstanding claims immediately due and/or to demand advance payments or security.
13.7. The customer is not permitted to set off any disputed counterclaims or counterclaims not established by a final court decision without our express consent. Likewise, the customer is not permitted to exercise a right of retention without a final and enforceable title or on the basis of claims arising from other legal transactions.
14.1. Both parties are obliged to comply with the provisions of the Austrian Data Protection Act (DSG), the General Data Protection Regulation (GDPR) and any other statutory confidentiality obligations.
14.2. In addition, they are obliged to impose compliance with these provisions on their employees and to take and maintain the necessary technical and organisational measures and security measures to ensure data protection.
14.3. RaDigSol processes the personal data required for the purpose of performing the contract. The detailed data protection information pursuant to Art. 13 et seq. GDPR was communicated during registration.
14.4. Where, in relation to the customer's data, RaDigSol is the processor and the customer the controller under data protection law, the data processing agreement attached to these GTC (Annex 1) applies and forms an integral part of this agreement. Any liability provisions in a data processing agreement take precedence over the provisions of these GTC.
14.5. Details of data processing can be found in the privacy policy as amended from time to time, available at https://www.radigsol.at/en/privacy.
14.6. The parties are obliged to treat confidentially all documents and information that are expressly designated as confidential, that are evidently not intended for third parties or that contain business or trade secrets (including prices and service descriptions as well as technical data and specifications). In case of doubt, the absence of a confidentiality requirement must be confirmed in writing by the other contracting party. The parties will also impose these obligations on their employees and on any third parties engaged. Confidential information must be protected by appropriate technical and organisational measures. In particular, the parties undertake to maintain the strictest secrecy regarding all circumstances that become known to them in the course of the cooperation, whether in preliminary discussions or in the course of carrying out projects, and to treat this information confidentially.
14.7. The confidentiality obligation under this clause relates in particular to know-how, technical details, experience and results obtained or used in the course of providing the services; the specific subject matter of the contract and its scope; agreed schedules, objectives, costs, prices and other aspects of the contractual relationship; and other non-public information about the other party obtained in the course of the project.
14.8. In particular, the parties assure each other that they will neither pass on the information obtained in the course of performing the contract to third parties nor make it accessible to third parties in any form, and that they will take all reasonable precautions to prevent third parties from accessing this information.
14.9. The obligations contained in this agreement do not apply to information where
The recipient of the information bears the burden of proof that one of the above exceptions applies.
14.10. The acquisition of confidential information by a party through observation, examination, reverse engineering or testing (in particular within the meaning of § 26d(1)(2) UWG) is expressly prohibited.
14.11. This confidentiality obligation applies without time limit beyond the term of the contractual relationship. After termination, each party is obliged, upon request, either to return the information or to destroy it irrevocably.
15.1. The customer is advised that the system in question is not a high-risk AI system within the meaning of the AI Act (Art. 6(1), (2), Annex I, III AIA).
15.2. The customer is obliged not to use the software for purposes or products that would result in classification as a high-risk AI system. Express reference is hereby made to the responsibilities along the value chain (Art. 25 AIA).
16.1. RaDigSol is entitled to refer to RaDigSol and, where applicable, to the author on all system, software and hardware components and in all advertising measures, without the customer being entitled to any remuneration for this.
16.2. The customer is obliged to retain any markings (trademark, copyright or other notices) and to respect the right of the respective rights holder to be named.
17.1. Unless otherwise agreed below, all copyrights and rights of use remain with RaDigSol or with the respective manufacturer/author in accordance with that party's licence terms.
17.2. After full payment for the respective service, RaDigSol grants the customer an unlimited, non-exclusive, non-transferable and non-sublicensable right to use the software and its individual developments for its own internal use in accordance with the service description or for the term of the underlying contract.
17.3. Provision and operation of software (SaaS): as of the defined start of the contract, RaDigSol likewise grants the customer a non-exclusive, non-transferable and non-sublicensable right to use the SOFTWARE for its own internal purposes for the term of the relevant contract.
17.4. Where third-party components form part of the software (e.g. open source components or commercial software), the respective licence terms apply to those components. The third-party components used are listed separately.
17.5. Use by third parties or transfer to third parties (whether for consideration or free of charge) beyond the content of the contract is not permitted.
17.6. All services provided by RaDigSol, including those arising from presentations (e.g. concepts, ideas, etc.), including individual parts thereof, as well as the individual prototypes and original drafts, remain the property of RaDigSol and may be reclaimed by it at any time free of charge – in particular upon termination of the contractual relationship.
17.7. Any use of RaDigSol's services that goes beyond the originally agreed purpose and scope of use requires RaDigSol's express written consent – irrespective of whether the service in question is protected by copyright. RaDigSol is entitled to separate, appropriate remuneration for this.
17.8. Where joint copyright arises between RaDigSol and the customer, the customer grants RaDigSol the non-exclusive, unlimited right to use, edit, sublicense and transfer the jointly created works for its own commercial purposes.
17.9. Where the customer makes copyright-protected material available (e.g. pre-existing websites, texts, images), the customer grants RaDigSol the non-exclusive, unrestricted right to use, edit and further develop this material for the purpose of carrying out the agreed activities. This expressly includes the right to (further) train AI tools with this material.
17.10. Modifications of RaDigSol's services, in particular their further development by the customer or by third parties acting on its behalf, are permitted only with the express consent of RaDigSol and – insofar as the services are protected by copyright – of the author.
17.11. In the event of breaches of this clause 17, the customer shall indemnify and hold RaDigSol fully harmless.
18.1. Each party is entitled to terminate for cause if performance of the service is or becomes impossible for reasons for which the other party is responsible, or continues to be delayed despite the setting of a grace period of at least 7 days; and if, after conclusion of the contract, circumstances become known to RaDigSol under which the provision of the customer's principal and ancillary obligations can no longer be regarded as assured and the customer, upon RaDigSol's request, neither makes advance payments nor provides suitable security (e.g. a bank guarantee) before RaDigSol renders its performance.
18.2. RaDigSol may terminate a continuing obligation with immediate effect if the customer is in default of payment of the corresponding remuneration for at least 2 months.
18.3. The parties may terminate with immediate effect in the event of a breach by the other party of intellectual property, data protection or confidentiality agreements.
18.4. In these cases, the terminating party is entitled to reclaim services already rendered or to insist on performance of the contract. In such a case, the return is made at the risk and expense of the other party. Any claims for damages and claims in connection with the retention of title remain unaffected.
18.5. Force majeure, strikes, natural disasters, transport blockages and the like release RaDigSol from the agreed delivery period or delivery obligation. Irrespective of this, RaDigSol has an unconditional and immediate right of withdrawal in such a case.
18.6. The following additionally applies to SaaS contracts: continuing obligations (recurring services) are concluded for an indefinite period. The parties have the right to terminate the contractual relationship subject to one month's notice as at the end of a month, unless otherwise stated in the offer. RaDigSol may terminate a continuing obligation with immediate effect and withdraw access if the customer is in default of payment of the corresponding remuneration for at least 2 months. We are furthermore entitled to terminate the contractual relationship with immediate effect for good cause and/or to block access to the SOFTWARE. Good cause includes in particular:
19.1. Where a statutory warranty applies, the following shall apply:
19.2. The customer must inspect deliveries immediately for any obvious defects. If the customer expressly or tacitly waives the inspection, the goods shall be deemed to have been properly delivered by RaDigSol. Complaints regarding the condition of our deliveries will only be recognised if they are asserted in writing to RaDigSol within 14 days of the goods arriving at the place of receipt. The notice of defects must be sufficiently substantiated and supported by appropriate evidence. Hidden defects must be notified in the manner set out above immediately after they are discovered.
19.3. Minor technical changes and deviations from drawings and catalogues are deemed approved in advance.
19.4. The period is a maximum of 6 months from delivery. The customer must prove that the defects existed at the time of handover. § 924 ABGB and § 933b ABGB do not apply.
19.5. In the case of defects notified by the customer with reasons, the remedies are limited to improvement, replacement delivery or completion of what is missing. Multiple rectifications and replacement deliveries are permissible where this is economically reasonable, but the customer has no legal entitlement to them. Claims for rescission and price reduction are excluded, unless RaDigSol offers the customer such claims or improvement is uneconomical for RaDigSol. There is no warranty claim if the customer or a third party not authorised by RaDigSol has made changes, manipulations or repairs to the product. In the case of improvement, replacement delivery or completion of what is missing, the period for asserting claims does not begin to run anew.
19.6. Where a notice of defects is justified, the defects will be remedied by RaDigSol within a reasonable period, with the customer enabling RaDigSol to take all measures necessary for investigation and rectification. RaDigSol is entitled to refuse to improve the service if this is impossible or involves disproportionately high effort for RaDigSol, in which case, at RaDigSol's option, rescission or a price reduction shall apply.
20.1. Unless otherwise agreed elsewhere in these GTC, the parties are liable for compensation for damage caused culpably. The parties are not liable for slight negligence. In the case of gross negligence, liability is limited in amount to the value of the delivery/service concerned (excluding taxes and charges), and in the case of recurring services to the remuneration for the preceding year. Limitations of liability do not apply to compensation for personal injury. In every case, claims for damages cover only the actual remedying of the damage, but not consequential damage, lost profit or third-party claims.
20.2. Claims for damages must be asserted in court within six months of becoming aware of the damage and the party causing it, failing which they lapse.
20.3. The injured party must prove that damage it has suffered is attributable to our fault. The injured party must also prove that it bears no (contributory) fault for any damage incurred. This applies to all forms of fault (slight/gross negligence, intent).
20.4. In the case of contracts for work and materials, RaDigSol is not liable if the customer insists on a particular implementation despite RaDigSol having fulfilled its duties to warn.
20.5. Liability for data loss or damage to devices, hardware or software used by the recipients of RaDigSol's services shall in any event only apply if such damage or loss could not have been avoided even by reasonable and appropriate data backup measures and the use of backup and protection software.
20.6. Insofar as online services provided by RaDigSol offer the possibility of reaching third-party websites, database services and the like, for example via links, RaDigSol accepts no liability whatsoever for the accessibility, existence or security of these databases or services, nor for their content. Liability arises, where applicable, only within the framework of the DSA subject to the limitations agreed here.
21.1. Amendments to these GTC will be notified to you and shall be deemed agreed if you do not object to them within 14 days (the significance of your silence will be expressly pointed out to you in the notification).
22.1. The court with subject-matter jurisdiction at RaDigSol's registered office is agreed as the place of jurisdiction for all disputes between RaDigSol and the customer arising directly or indirectly from the GTC themselves or from the contractual relationship.
22.2. The place of performance for delivery/service and payment is RaDigSol's registered office.
22.3. Austrian substantive law applies to the contractual relationship, excluding the conflict-of-law rules of private international law (e.g. IPRG, Rome I Regulation) and the UN Convention on Contracts for the International Sale of Goods.
22.4. Oral agreements, side agreements, reservations, amendments or supplements to these General Terms and Conditions must be made in writing to be valid; this also applies to any departure from the written form requirement, whereby an electronic signature (e.g. e-mail) is deemed to satisfy the written form.
22.5. Any ineffectiveness/invalidity/nullity of individual provisions shall not affect the validity and applicability of the remaining provisions. In such a case, RaDigSol and the customer undertake to replace that provision with one that is legally effective and valid and that corresponds in its economic effect – as far as possible and legally permissible – to the replaced provision.
22.6. The assignment of individual rights and obligations arising from the contractual relationship is permitted only with the express written consent of RaDigSol.
22.7. The language of the contract is German.