Last status: 18th of January 2024

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General Terms and Conditions of Tsetinis Software GmbH

1.     Scope

1.1.  The present General Terms and Conditions of Contract ("Terms & Conditions") shall apply to all services rendered by TSET within the framework of a contractual relationship between Tsetinis Software GmbH, A-5431 Kuchl, Kellau 151, FN 491399x (hereinafter referred to as "TSET") and the principal (hereinafter referred to as "Principal"). Upon execution of the purchase order and the receipt of our confirmation and/or the acceptance of the services, the Principal accepts our Terms & Conditions. Deviating general terms and conditions of the Principal are not binding for TSET; they are herewith expressly rejected and thus do not form part of the contract, neither by the acceptance of the order nor by any other implied action.

1.2.  TSET offers the Principal IT-services, in particular by providing a platform for managing costs and CO2 within the product development process (by means of leased Software as a Service, “SaaS”) as well as, by separate order, the service of individualised software development and sale. The scope of the services to be provided by TSET and the fee to be paid for the respective services shall be agreed upon in the order placed by the Principal with TSET.

1.3.  The present Terms & Conditions shall also apply to new orders or extensions of the order scope, unless otherwise agreed in writing.

1.4.  In the event that a specific service agreement is concluded between TSET and the Principal, the more specific provisions of this service agreement shall prevail over the present Terms & Conditions in the event of a conflict. The remaining provisions of the present Terms & Conditions shall remain unaffected.

2.     Information Obligation and Cooperation Duties of the Principal

2.1.  After placing the order, the Principal is obliged to inform TSET immediately about all information, documentation and facts which could be significant to the fulfilment of the order and to provide all documents necessary. TSET is entitled to assume the correctness of all information, facts, original contracting parties and documents, unless the incorrectness is to be deemed obvious.

2.2.  During the term of the contract, the Principal is obliged to inform TSET about all altered or newly arising circumstances that could be significant to the performance of the order, immediately after these circumstances have become known.

2.3.  For the purpose of fulfilling the order and if required and requested by TSET, the Principal must name a person generally responsible for the service with the corresponding authority to act and make decisions. This person shall be available to TSET as a point of contact with regards to service provision. If required, the Principal must name a person responsible for IT and/or information security as a point of contact sufficiently familiar with the IT and information security structures of the Principal. For software leasing and/or maintenance, the order may additionally include the obligation to name key users.

2.4.  If the Principal becomes aware of attacks or relevant indications of attacks on the Software and/or the infrastructure used by the Software, they shall immediately notify TSET thereof in writing, but in any case not later than within 24 hours.

2.5.  The Principal shall indemnify and hold TSET harmless for all delays in the performance of TSET's services resulting from the violation of the Principal´s duty to cooperate.

3.     Principles of Service Provision and Definitions

3.1.  The provision of services by TSET is carried out according to the respective state of the art. The fulfilment of other technical norms or standards in the performance of services shall only become part of the contract if this is explicitly agreed upon in writing.

3.2.  TSET is obliged to keep confidential all matters that TSET is entrusted with and all other facts which otherwise become known in the course of the contractual activities and the secrecy of which is in the interest of the Principal.

3.3.  TSET shall be entitled to commission employees or third parties with the handling of the Principal´s affairs, provided that they have demonstrably been instructed on the obligation of confidentiality and/or the corresponding obligations have been transferred to them.

3.4.  Only insofar as this is necessary for the pursuit of TSET´s claims (in particular TSET´s fee claims) or for the purpose of defending against claims arising against TSET (in particular Principal´s claims for damages or third-party claims against TSET), TSET is released from the obligations of this contractual provision.

3.5.  Within the framework of software lease and/or software maintenance and unless otherwise agreed, the application and consulting language and the support language is English.

3.6.  “Standard Software" is the standard software package defined in the respective order, which is licensed to the Principal for the duration of the contractual term under a software lease and maintenance agreement as a service (online / SaaS).

The standard software has a modular structure and can contain one or more standard software modules including the individualisations defined below, depending on the scope of the order. TSET reserves the right to stop offering modules in general at any time and to terminate the provision for the Principal accordingly. In this case, TSET will provide a substitute for the terminated module, which will at least provide the same functionality as the terminated module. The migration costs for use of the new module will be charged separately.

For terminated modules, TSET will continue to provide support for a minimum of 12 months from the date of notification of the respective termination, after which time they will be terminated and can no longer be used.

3.7.  “Individualisations" are modules or extensions (e.g. interfaces) to be developed individually for the Software, which are to be created by TSET for the Principal in accordance with the order and are to be sold subsequently or licensed to the Principal within the scope of the software lease.

3.8.  In the event of an agreement on a software lease and maintenance contract, the term “Software" refers to the standard software, including any individualisations provided to the Principal as a Software as a Service solution in accordance with the present Terms & Conditions.

3.9.  “Service" is the provision of programming and consulting services outside of a software lease and maintenance agreement or a software purchase (e.g. the individualisations made for the Principal). A service is deemed a “Service” in the sense of the present Terms & Conditions, if TSET does not owe a certain outcome (contract for work or lease agreement), but merely the rendering of a service (service contract).

4.     Granting of Rights

4.1.  TSET is obliged to configure or individualise the Software in accordance with the agreed order and to make it available to the Principal within the framework of a software lease and/or maintenance agreement.

4.2.  After making the software available, the Principal shall be entitled to use the Software within the agreed scope (Werknutzungsbewilling / non-exclusive permission to use the work).

4.3.  The Principal is prohibited from editing or modifying the Software. The Principal shall inform TSET immediately in writing of any possible need in terms of editing or modification of the Software. The Principal undertakes to commission TSET for the editing or modification of the Software against payment of an adequate fee.

4.4.  The Principal must not - directly or indirectly through third parties - decompile, dismantle, reverse-engineer or attempt to reconstruct, determine or discover in any way the source code, underlying ideas, underlying techniques or algorithms of the user interfaces of the Software, or disclose the foregoing.

The Principal is prohibited from providing, renting, leasing or otherwise allowing third parties to use the Software, either directly or indirectly through third parties, for purposes other than those contractually agreed upon.

4.5.  Use of the Software under the software lease is granted solely to Authorised Users and solely for activities that such Authorised Users perform for the Principal. Authorised Users are (i) employees, contractors, subcontractors, and outsourcing providers of the Principal and (ii) employees, contractors, subcontractors, and outsourcing providers of affiliated companies or of other companies designated by the parties in the order as authorised to access and use the Software. Any use by contractors, subcontractors or outsourcing providers acting on behalf of the Principal shall be subject to the present Conditions of Contract. The Principal shall be responsible for its obligations and for the activities and violations of the present Conditions of Contract by such third parties. The Principal is responsible for all activities that occur under such authorised user accounts. The Principal shall prevent unauthorised access to or use of the Software and shall promptly notify, indemnify and hold harmless TSET of any unauthorised use of a password or account and of any other known or suspected breach of security.

5.     Acceptance of Individualisations

5.1.  In case that TSET programs or develops individualisations on behalf of the Principal, an acceptance of the individualisation shall take place after the first making-available of user clients not created for test purposes for the access to the software in the form of final acceptance. Ongoing tests by means of test clients only serve the purpose of checking the implementation and configuration progress. The acceptance test shall be recorded, and the respective test record shall be signed by the contracting parties.

5.2.  Delivery dates shall be deemed to be met if the acceptance test has been completed by then without any errors, or if any errors occurred have been remedied before the respective date. Insofar as a delay is caused by a circumstance outside TSET´s control, the delivery date is postponed by the period of this delay.

5.3.  During the acceptance test it is checked whether the individualisation fulfils the agreed functions and specifications. TSET is responsible for the performance of the acceptance test in the presence of the Principal. If the Principal refuses to participate in the acceptance test in spite of a grace period of two weeks, the individualisation shall be considered as accepted without defects.

5.4.  If defects are detected during a test run, this test run shall be repeated after remedy of the defects by TSET, and if this is technically required in the opinion of the Principal, further test runs for the relevant subsystem and related subsystems will be carried out.

5.5.  After the third unsuccessful repetition of the acceptance test, the Principal shall not be obliged to accept the individualisation, unless the defects are class 3 or 4 defects according to the present Terms & Conditions.

5.6.  In case of a successful completion of the acceptance test, the Principal must declare the acceptance of the individualisation in writing. If the acceptance of the individualisation by the Principal does not take place exclusively for reasons outside of TSET’s control, despite a written request with a grace period of two weeks after successful completion of all tests, the individualisation is considered as accepted at the time of the successful completion.

5.7.  The Standard Software is not subject to acceptance.

6.     Scope of Services (Software Lease and/or Maintenance)

6.1.  Software lease and/or maintenance according to the present Terms & Conditions is the provision of the Software to the Principal as-a-Service against payment, the rendering of services by TSET in connection with the maintenance of the Software, and the application support for the persons employed with the Principal that work with the Software within the framework of a continuing obligation; this exclusively includes the following areas:

a.     the elimination of errors in its own Software, provided that these are not defects subject to warranty;

b.     the implementation of patches and bug fixes for the Software;

c.     the implementation of updates for the Software; however, upgrades are not included in the scope of services (cf. 8.3.);

d.     the application support, namely the provision of ad-hoc information and instructions on the operation of the Software as well as the answering of the Principal´s questions related to the Software;

6.2.  Services within the framework of the software lease and maintenance other than the services mentioned above shall only be provided by TSET, if this is done within the scope of a separate order on terms to be agreed upon by the parties.

7.     Service Level Agreement and Mainentance (Software Lease and/or Software Maintenance)

TSET will provide services in connection with the maintenance of the Software and the application support in accordance with the response times stated below during TSET’s support hours.

·       Principal must name a reasonable number of key users who are capable to answer technical and subject matter questions of the Authorised Users. The Principal shall take care for the necessary qualification of these key users.

·       First-level support: First-level support to Authorised Users is provided by the Principal’s key users and covers all questions regarding software functionality, error handling etc.

·       Second-level support: TSET provides second-level support to the Principal’s point of contact and a named group of key users (up to one key user per 20 user accounts) for all issues which they cannot resolve themselves. Such second-level support is capped at a maximum of 30 hours per year. Any further requests will be provided in accordance with the current price list. If no such price list exists exists, a fee in the amount of EUR 120 net per hour based on the actual effort.

·       Third-level support: Complex issues may be forwarded from second-level support to third-level support provided by TSET if they require additional know-how.

7.1.  Service Level Agreement

7.1.1. TSET shall fix all Software bugs duly notified by the Principal in accordance with the present Terms & Conditions. Bugs in the sense of the present Terms & Conditions are all malfunctions of the Software which would be qualified as defects (Mängel). Errors resulting from improper operation of the Software by the Principal or which do not affect the agreed scope of functions shall not be considered as bugs, and the elimination of these are not included in TSET's obligation to perform. TSET is not obliged to fix bugs attributable to the Principal, e.g. through interfaces of the Principal, their infrastructure or applications.

7.1.2. For the purpose of debugging, TSET must carry out the maintenance and must ensure that an appropriately staffed, competent team of service experts is available for bug fixing. Error messages are accepted by TSET during support hours on working days from 8.00 a.m. to 12.00 p.m. and from 1.00 p.m. to 5.00 p.m. CET. Working day means a day (other than Saturday or Sunday or a public holiday) on which banks are open for general business in Vienna, Austria.

7.1.3. If a bug occurs, the Principal is obliged to immediately report a clear, comprehensible and exact error message to TSET, which must contain all information enabling TSET to narrow down the cause of the bug and to determine strategies for bug fixing. This includes, in particular, information about the type of error, the description of the system state at the time the bug occurred, the components affected by the bug, the frequency of occurrence of the bug and the Principal´s point of contact. This error message shall be reported to TSET via the online portal provided by TSET for this service or, if such a portal cannot be reached technically, via email (office@tset.com); if possible, further information (screenshots, error logs etc.) shall be included.

7.1.4. Insofar as TSET incurs costs due to incorrect error messages, these costs are to be borne by the Principal regardless of fault.

7.1.5. The service and response times agreed upon for the software maintenance are dependent on the specific product and result from the agreement between the Principal and TSET. The response time assured by TSET starts with the Principal´s complete error message.

7.1.6. Unless otherwise agreed in a service or performance agreement, the service classes shall be defined as follows:

·       Minor (4): The intended use of the Software is possible without restriction. The bug has no or only insignificant influence on the functionality and/or the security of the Software. The use of the Software remains possible without restriction.

·       Medium (3): The intended use of the Software is slightly restricted. The bug has an insignificant impact on the functionality and/or security of the Software and allows further use of the Software with only minor restrictions.

·       High (2): The intended use of the Software is seriously restricted. The bug has a significant impact on the functions and/or security of the Software but allows further use of the Software and no procedural work-around exists.

·       Critical (1): Use of the Software is not possible or is unreasonably restricted. The bug has a serious impact on essential functions and/or the security of the Software; it cannot be used any further and no procedural work-around exists.

7.1.7. The response times for the service classes during support hours according to Art. 7.1.2. start to run from the time of the error message according to Art. 7.1.3. and are as follows: 

·       Minor (4): 10 working days

·       Medium (3): 5 working days

·       High (2): 48 hours

·       Critical (1): 8 hours

7.1.8. As a general rule, the allocation of bugs to the above-mentioned classes is done by TSET. If the Principal insists on another classification, TSET shall carry out measures to eliminate the bug on the basis of the Principal´s assessment and be remunerated according to the amount of time used thereon.

7.2.  Maintenance

7.2.1. TSET shall provide the Principal with all generally released updates, patches and bug fixes.

7.2.2. TSET is completely free to decide whether to install the program parts or new versions covered by this provision.

7.2.3. TSET is not obliged to install and deliver upgrades. Upgrades are all versions of modules with significantly enhanced functionality or modified architecture.

8.     Availability (Software Lease and/or Maintenance)

8.1.  TSET guarantees a certain availability for the services to be provided. Availability in this sense shall mean the calculated availability (365 days, 7 × 24) minus downtime.

8.2.  However, a completely uninterrupted system cannot be guaranteed for technical reasons alone. When calculating the contractually owed availability, (i) cases of force majeure; (ii) periods of interruption of usability due to the interval-based maintenance and updating of the Software and systems or the servers and (iii) results from the poor performance of, of failure of, internet service or other outside service, software or equipment not within the control of TSET shall not be taken into account.

8.3.  TSET guarantees an availability of 98% on average per service over the calendar quarter. Downtimes of the Software, systems or servers are considered individually in the calculation of the availability on an annual average and are not cumulated.

8.4.  In case of a shortfall of the mentioned availabilities, the Principal is only entitled to an pro rata refund of the contractually owed fee for the duration of the downtime exceeding the guaranteed availability, unless TSET can prove that non-compliance with the guaranteed availability is a consequence of one or more of the following circumstances:

·       grossly negligent or intentional acts carried out by the Principal or third parties;

·       errors of hardware and/or software components whose maintenance or operation is not part of the subject matter of the contract;

·       external forces, such as water damage, fire or damage caused by electricity and magnetism;

·       force majeure

8.5.  The assertion of claims for damages based on insufficient availability of the Software, systems, or servers beyond the pro rata reimbursement of the contractually owed fee is excluded, unless caused intentionally by TSET.

8.6.  Penetration tests or other checks of the security and stability of the system on which the Software is hosted that are carried out by the Principal shall only be permitted with TSET's prior written consent.

9.     Block (Software Lease and/or Maintenance)

9.1.  TSET is entitled to temporarily refuse the provision of services completely or in parts (blocking), if there is reasonable suspicion that the Principal, when using the service, violates laws or essential contractual obligations that serve the purpose of securing the operability of at least one particular service or the protection of third parties, or if the Principal takes actions which would entitle TSET to terminate the contract immediately under the present Terms & Conditions.

9.2.  Reasonable suspicion for illegality and/or an infringement in particular exist if courts, authorities and/or other third parties inform TSET about the respective violation. TSET shall inform the Principal without hesitation about the block and the underlying reason. The block shall be lifted as soon as the suspicion has been invalidated and the conditions for it no longer exist.

9.3.  After a single written reminder without effect and a respective blocking notice setting a 7-day grace period, TSET is entitled to stop the contractual services completely or in parts in case of payment delay.

9.4.  The Principal shall not be entitled to any claims arising from a justified blocking of the services.

9.5.  The costs associated with the block, including those of reconnecting the services, shall be reimbursed by the Principal, provided that the Principal is responsible for the block. In such cases, the Principal shall not be released from the obligation to pay the fees.

Conditions for the Provision of Services

(Consulting and Programming Services)

10.  Scope of Services & Definitions

10.1.  The scope and content of the order placed with TSET as well as the specific subject of services (or consulting) result from the agreed scope of work. The transmission of an order confirmation or the unconditional performance of ordered services shall in any case be considered as acceptance of the offer by TSET.

10.2.  TSET is entitled and obliged to perform all services necessary and expedient for fulfilment of the order at the time of fulfilling the order. If the situation should change after the term of the contractual relationship, TSET is not obliged to inform the Principal about changes or resulting consequences.

10.3.  The rendering of services by TSET in connection with consulting activities is in particular performed by programming activities or the contribution of methodical knowledge, the use of proven methods and tools, by analysis of existing processes, awareness raising and discussions with responsible employees of the Principal and the preparation and holding of workshops. TSET does not provide legal advice.

10.4.  It is explicitly agreed that TSET only owes the provision of services agreed in connection with the order placement and in accordance with the respective order, but never a specific project outcome.

General Terms and Conditions of Contract

(Applicable for all services rendered by TSET)

11.       Term of Contract and Termination

11.1.      Unless explicitly agreed otherwise for a specific project, the contractual relationship shall be concluded for an indefinite period and may be terminated by either contracting party with six months' notice to the end of each calendar year. Unless otherwise agreed, termination in case of a Software lease may not be exercised earlier than 60 months after acceptance of the order.

11.2.      An initially limited contractual relationship which is continued by the parties without expressly agreeing in this respect shall also be deemed extended for an indefinite period. In this case, the parties are deemed to have agreed a waiver of termination of 60 months from the beginning of the limited contract. The remainder of the respective contractual relationship shall remain unaffected.

11.3.      The right of the contracting parties to terminate the contract for good cause shall remain unaffected by this provision. Good cause is given in particular if one of the parties

a.     is declared bankrupt or the opening of bankruptcy proceedings has been rejected for lack of assets;

b.     breaches obligations arising from the present Terms & Conditions and continues to act in breach of contract despite a reminder and the setting of a reasonable deadline;

c.     gives any other reason or breach of contract which makes the continuation of the contractual relationship unreasonable for the respective other party;

d.     initiates legal proceedings against TSET, regardless of whether this is justified or unjustified, unless an attempt to reach an amicable settlement in a personal meeting with the assistance of professional representatives of the parties has been made beforehand.

11.4.      Upon termination of the agreement, the Principal shall no longer be entitled to use any Software provided as SaaS in any form whatsoever.

11.5.      Blocking of services by TSET within the meaning of Art. 10 of the present Terms & Conditions shall never be a reason for extraordinary termination of the contractual relationship by the Principal.

11.6.      In the event of termination or expiration of the term of contract (i) TSET shall end the Principal's access to the Software and cease to render the respective Services; in addition, (ii) the Principal shall immediately end all use of and access to the Software.

11.7.      Upon the Principal´s request and by separate order, TSET will extract the Principal’s existing data from TSET's system and make them available to the Principal. The costs for the extraction of the data shall be borne by the Principal in accordance with the current price list. If no such price list exists, a fee in the amount of EUR 160 net per hour based on the actual effort and accompanied by proof of performance is deemed to be agreed upon.

12.  Costs

12.1.      Unless otherwise agreed, TSET is entitled to a reasonable fee.

12.2.      The amount and billing periods for the provision of services under a software lease and maintenance agreement derive from the scope of the order placed. If parameter-dependent billing is agreed, the underlying parameters shall be reviewed once per billing period and adjusted to the actual system usage (system measurement). If the agreed parameters are exceeded, the additional or exceeding parameters will be charged additionally from the next billing period. If the parameters offered at a flat rate are exceeded, the excess will be charged additionally in accordance with the fair-use principle in the next billing period. "Fair-use principle" means that the agreed parameters may be exceeded by a maximum of 10% for a period of 2 months. In the event of a longer-term or higher exceedance, the exceedance will be charged as agreed upon.

12.3.      Agreed charges shall be adjusted upwards at the beginning of each calendar year in accord with the increase of the consumer price index (CPI 2020) in the last 12 months, with a minimum adjustment of at least 2%. As a starting point, the index figure published for the month in which the contract is concluded shall be deemed agreed. A temporary non-valorisation does not constitute a waiver of this upward adjustment by TSET; the adjustment can also be claimed retrospectively for a period of 24 months.

12.4.      If software products of third parties are to be used or implemented by TSET for the Principal, the costs connected therewith are only included in the agreed remuneration if and insofar this is explicitly agreed between the parties. All costs related to the use of these software products which are not included in the agreed remuneration, such as licence fees, expenses and other costs, must be reimbursed by the Principal within 7 days after invoicing or paid directly to the third party provider at TSET's discretion.

12.5.      Any expenses of TSET arising in connection with the exercise of inspection and control rights of the Principal are to be compensated appropriately.

12.6.      If the Principal is in default of the whole or a part of the fee, they shall pay to TSET default interest in the statutory amount, but at least 12 % above the respective base interest rate. Further legal claims (e.g. § 1333 ABGB [Austrian Civil Code]) remain unaffected.

12.7.      Any set-off and retention against agreed fees shall be excluded.

13.  TSET’s Liability and Warranty

13.1.      TSET's liability for defective performance or other violations of contractual obligations is limited to the sum insured by TSET's business liability insurance available for the concrete case of damage.

13.2.      If a specific case of damage is not covered by the liability insurance, TSET's liability is limited in every legally permissible case with the amount of the remuneration paid by the Principal in the current or previous calendar year for the services of TSET.

13.3.      This respective maximum amount pursuant to 14.1. or 14.2. includes all claims against TSET on the grounds of defective performance and/or other violation of contractual obligations, especially for compensation and a reduction in price.

13.4.      TSET is only liable for damages of intent or gross negligence. In case of slight negligence, TSET is only liable for personal injuries. TSET is not liable for indirect damages, loss of profit, loss of interest, missed savings, consequential damages and financial losses.

13.5.      TSET does not assume liability for the suitability of the Software for the purpose intended by the Principal, but only for the performance in compliance with the agreement. TSET is not liable for visual deviations which do not affect the proper use of the Software.

13.6.      The Principal is liable to prove any fault on the part of TSET.

13.7.      If TSET is commissioned, all limitations of liability are also deemed applicable with regard to all employees and subcontractors working on behalf of TSET.

13.8.      TSET is only liable towards its Principal, not towards third parties. The Principal is obliged to explicitly point out this fact to third parties who come into contact with TSET's services due to the intervention of the Principal.

13.9.      TSET is liable to warranty in accordance with §§ 922 ff ABGB. The existence of a defect must in any case be proven by the Principal whereby a material defect must in any case be reproducible; the presumption of defectiveness pursuant to § 924 ABGB (Vermutung der Mangelhaftigkeit) is not applicable.

13.10.   In any case of material defects, TSET has at first the right to remedy the defect (repair or making good any deficiencies); for this purpose, TSET remedies the defect. Remedy of the defect is also said to occur if TSET shows the Principal reasonable possibilities to prevent the effects of the defect (reasonable work-around).

13.11.   Furthermore, in the event of any defects of title, TSET has at first the right to provide warranty by repair and has the option to provide the Principal with a legally flawless opportunity to use the contractual object or the replaced or modified equivalent contractual object (reasonable work-around).

13.12.   Within the scope of the warranty, the Principal shall accept a new or modified contractual object if the contractual scope of functions is maintained and the acceptance does not lead to significant disadvantages to be proven by the Principal.

13.13.   If third parties assert claims which prevent or hinder the Principal from using the contractual object accordingly, the Principal shall immediately and comprehensively inform TSET thereof. If the Principal is sued by third parties on the basis of using the contractual object, the Principal shall coordinate all corresponding steps with TSET and may only take legal action, especially acknowledgements and settlements, with the consent of TSET. TSET is in this connection obliged to indemnify and hold harmless the Principal, insofar as the claims are not based on a violation of the Principal´s duties; in this event, the Principal shall indemnify and hold harmless TSET.

13.14.   If TSET performs services, e.g. as part of fixing a bug, where no defect exists, an adequate fee can be claimed. This applies in particular for cases where a defect cannot be proven/reproduced or cannot be attributed to TSET.

13.15.   Insofar as a defect can be remedied by installing or otherwise making available a new or improved version of the Software, the Principal must accept such remedy, unless the Principal can invoke substantial grounds to the contrary. 

13.16.   Due to the risk of data loss and/or the unavailability of the Software, the Principal is obliged to regularly - at least weekly - make or have made backup copies of the data processed or calculations created using the Software in order to comply with its duty to mitigate damages. In case of violation of this obligation, TSET shall not be liable for any resulting damage to the detriment of the Principal.

14.  Liability of TSET and Warranty for Calculations

14.1.      As a general rule, the calculations generated by TSET and/or the Software represent individual calculations based on the data and information provided and selected by the Principal.

14.2.      The Principal acknowledges that TSET does not check for completeness and correctness of the data and information generated or fed in/entered into by the Principal and/or obtained by the Principal via interfaces to third party service providers.

14.3.      TSET is not obliged to check the calculations made by the Principal and, therefore, TSET is not liable for the suitability of the calculations for the purpose intended by the Principal. In particular, this also applies to the cost and CO2 development of products and components during production based on calculations generated in the Software. The Principal alone is liable for the correctness of its dimensions and measurements, for the selection of parameters, and the performance of the calculation. Any disadvantages and damages incurred by the Principal as a result of an incorrect or unusable calculation shall be borne by the Principal.

14.4.      With regard to the calculation modules of the Software, TSET is legally responsible only for providing an error-free function of the calculation logic (arithmetically correct linkage of input parameters, database values and the results of process parameter models). Furthermore, TSET must ensure that during the operation of the Software, the results of process parameter models can always be overwritten manually by the Principal. In other respects, any liability or warranty for the functionality of the calculation modules is excluded; furthermore the other limitations of liability according to clause 15 shall apply.

15.  Statute of Limitations/Statute of Repose

Unless a shorter limitation or repose period is provided by law, all claims shall expire after not being filed by the Principal in court within six months from the time the Principal becomes aware of the damage and the person causing the damage or of any other event giving rise to the claim. However, the claims shall expire at the latest after three years have lapsed.

16.  Non-solicitation and Employment Ban

16.1.      The Principal is not entitled to poach and/or to employ, either directly or indirectly, any employees or subcontractors of TSET during the contractual relationship and 12 months thereafter. The employment of the employee or subcontractor with a company affiliated under company law (e.g. parent company, subsidiary or sister company) is to be considered equal to employment with the Principal.

16.2.      For each case of violation of this solicitation and employment ban, the Principal shall pay to TSET a contractual penalty irrespective of fault in the amount of the simple gross annual salary of the respective employee or gross annual earnings of the respective subcontractor, but at least € 100,000.00, even if the violation consisted merely of an attempt. In case of payment of the contractual penalty, TSET reserves the right to assert a claim for injunctive relief resulting from this agreement as well as a claim for damages exceeding the contractual penalty.

17.  Copyrights, Data Protection and Project Data

17.1.      Unless otherwise agreed in the Terms & Conditions or in the respective order itself, documents provided by TSET, digitally or physically, especially databases, sample documents, guidelines, source codes, test scripts and program codes, as well as other documents, shall remain TSET's intellectual property. Any use, especially the passing on, duplication and publication by the Principal, requires the explicit written consent of TSET. Unless otherwise agreed in writing, TSET grants the Principal a non-exclusive and non-transferable licence to use the Software.

17.2.      TSET accesses databases and software products of third parties via the Software in regular intervals or in real time, which - depending on the agreed scope of services - are also accessible to the Principal when using the Software or can be used for calculations. In case of using databases or software products of third parties, the Principal is obliged to accept the licence conditions of the third party without restrictions and indemnifies and holds TSET harmless for use in compliance with the conditions. In any case, the Principal is not entitled to download databases of third parties in violation of the agreement and to use them for itself or to make them available to third parties. 

17.3.      Data uploaded by the Principal whilst using the Software shall remain the property of the Principal; TSET is not entitled to copy or use this data for its own purposes. However, TSET is entitled to derive its own findings from the data uploaded by the Principal whilst using the Software for its own purposes in anonymised form, to integrate these findings into its own databases and to make them available to third parties under the condition that no conclusions can be drawn by third parties with regard to the Principal.

17.4.      All knowledge gathered in connection with the provision of the Software shall be the exclusive property of TSET. TSET needs these findings as part of its optimisation strategy for the continuous improvement and extension of the Software within the scope of the agreements concluded with the Principal and third parties.

17.5.      After termination of the contractual relationship between TSET and the Principal, the calculations performed in the Software - but not the findings derived therefrom - shall be deleted, unless there are contractual or statutory rights or obligations to keep the data, or the data is needed to assert claims or to defend against unjustified claims.

17.6.      TSET acts as a Processor within the meaning of Art. 28 GDPR towards the Principal; in the course of the conclusion of the contract, TSET provides the Principal with a declaration of commitment.

17.7.      TSET declares to fully comply with all obligations in connection with the DSG [Austrian Data Protection Act], the EU-GDPR and other data protection laws, and to process the provided personal data exclusively for the contractually agreed purpose, unless otherwise agreed or provided by law.

 17.8.      If the Principal processes personal data of its customers, employees or other natural persons in the Software, it shall obtain from these persons, before making the Software available, their explicit written consent pursuant to Art. 6 and 7 GDPR that the personal data processed by the Principal may be provided to TSET for the purpose of the continuous improvement and extension of the Software within the scope of the agreement concluded with the Principal - if necessary after pseudonymisation. Personal data shall become the property of TSET after anonymisation as non-personal data.

17.9.      Insofar as TSET has to provide conceptual planning and/or development services for the preparation of an offer for the Principal, an adequate remuneration shall be considered agreed upon in case the order is not placed. Free conceptual planning and development services must be agreed upon in writing.

18.  Applicable Law and Place of Jurisdiction

18.1.      The Terms & Conditions and the contractual relationship governed by these Conditions shall be subject to Austrian substantive law, excluding the conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods.

18.2.      For legal disputes arising out of or in connection with the contractual relationship regulated by the present Terms & Conditions, including disputes about its validity, the exclusive jurisdiction of the competent court at TSET's domicile is agreed, insofar as this is not contradictory to any mandatory law.

18.3.      However, TSET is entitled to file claims against the Principal also before any other court in Austria or abroad, in whose jurisdiction the Principal has its domicile, residence, branch office or assets.

18.4.      The Principal undertakes to observe and comply with all applicable export regulations and sanctions when using the Software. Without limiting the foregoing, (i) the Principal confirms that it is not listed on any applicable list of persons or companies that prohibits the receipt of exports and (ii) the Principal will not provide anyone with access to the Software or services in violation of any applicable export embargoes, prohibitions or restrictions.

19.  Final Provisions

19.1.      Amendments or supplements to the present Terms & Conditions must be made in writing in order to be valid. This also includes a waiver of this written form requirement.

19.2.      TSET may correspond with the Principal in any way TSET deems appropriate. Unless otherwise stated, all notices required to be given by the Principal under the Terms & Conditions shall be in writing and shall be delivered either personally or by means of a nationally or internationally recognised overnight courier service or sent by registered mail. Notices to TSET shall be addressed to: Tsetinis Software GmbH, Aspernbrückengasse 2, 1st floor, AT-1020 Vienna for the attention of the VP Operations.

19.3.      The invalidity of one or more provisions of the present Terms & Conditions of the contractual relationship governed by the present Terms & Conditions shall not affect the validity of the remaining provisions.

19.4.      The Principal hereby expressly agrees that TSET may include the name and/or logo of the Principal in customer lists for reference purposes, regardless of format and/or media.

19.5.      Rights and obligations of the present Terms & Conditions may only be assigned with the written consent of the respective other party. The Principal hereby agrees to a future assignment of the rights and duties TSET is entitled to according to the present Terms & Conditions to a company affiliated with TSET.

19.6.      In case of a contradiction between the English and the German version of the present Terms & Conditions, the German version shall prevail.