GENERAL TERMS AND CONDITIONS
Schönbrunner Straße 231
Phone: +43 1 9974354
Commercial Court Vienna, FN 529675i, VAT No.: ATU75406106
Managing directors: Klaus Müller & Thomas Tauchner
We are very pleased that you have chosen JENTIS GmbH.
Please read these General Terms and Conditions of JENTIS GmbH (‘JENTIS’) carefully before using JENTIS products.
As this is an important business relationship between you, our Customer, and us, we have done our best to make these General Terms and Conditions as clear as possible.
1.1 JENTIS develops software solutions for website tracking (‘JENTIS Software’). The name JENTIS is also registered as a trademark. JENTIS provides JENTIS Software as a Software as a Service (‘SaaS’) to businesses. The commercial offer of JENTIS is not intended for consumers in the meaning of Article 1.1(2) of the Austrian Consumer Protection Act (KSchG).
1.2 These General Terms and Conditions (‘T&C’) apply to all current and future business relationships in connection with the use of the JENTIS Software by you, the Customer, including the Trial Period described in §3 below.
1.3 These T&C represent an integral part of the terms of contract between the Customer and JENTIS. The terms of contract include Order Forms, Data Processing Agreement, as well as, where applicable, Licensing Agreement, Service Level Agreement, Non-Disclosure Agreement, and other order processing and service documents. The terms of contract, unless expressly agreed otherwise, form the sole legal basis (the ‘Contract’) for the business relationship between the Customer and JENTIS.
1.4 The Contract becomes binding for both Parties upon execution of applicable documents referred to in 1.3 above. Execution of documentation shall include acceptance of the terms by the Customer, as well as, where applicable, signature by both Parties.
1.5 In the event of a conflict of norms stemming from the terms of contract, the following order of precedence shall apply: (1) individual contractual agreement (such as the Licencing Agreement); (2) order documents (such as the Order Form); (3) service documents (such as the Service Level Agreement); and (4) these T&C. The language of the Contract is German.
1.6 Any terms and conditions in relation to the business or sales of the Customer are hereby expressly excluded. The sales terms and conditions or other terms and conditions in relation to the business of the Customer (‘Customer T&C’), which are contrary to or deviate from these T&C, shall not apply even if the Customer refers to its Customer T&C prior to or upon conclusion of the Contract and JENTIS does not expressly object to them again or provides or accepts services without any reservation.
1.7 JENTIS reserves the right to change the provisions of the T&C at any time.
2.1. Customer: a legal entity, an organization, a company, a group of companies, a natural person, or any other legal structure using the SaaS provided by JENTIS.
2.2. Server: The term server refers to hardware within the context of the client-server model on which a software is made available via a network service.
2.3. Client: The term client refers to the computer which, unlike others, does not provide a server. Here: Client means the Customer’s terminal device on which a browser is used to use the Software.
2.4. Internet: The Internet is a worldwide web consisting of many computer networks through which data is exchanged. It enables the use of Internet services such as e-mail, file transfer or the WWW. In principle, any computer in the world can be connected to any other computer.
2.5. Domain: A domain is a name-based unit that is entered in a browser, for example. This term (e.g. www.domain.at) is then converted into an IP address so that the request can be processed by a server.
2.6. Top-Level Domain: The top-level domain is the part of the domain that is written after the last dot (e.g., the .at in www.domain.at).
2.7. Main Domain: The main domain is the part of the domain which is written between the last and the penultimate dot including the following Top-Level domain (e.g. domain.at in www.domain.at).
2.8. Subdomain: Subdomains are all those parts of the domain that are written before the penultimate dot separated by further dots (e.g. the test in test.domain.at).
2.9. Host: A host is a locked part of a server with corresponding pre-installed software, which is made available to the Customer.
2.10. Licensing Client: A Licensing Client is a system of Licensee which is made available under a main domain (and any number of subdomains) or a downloadable App.
2.11. Browser: Web browsers or, in general, browsers are special computer programs for displaying web pages on the World Wide Web or, in general, documents and data.
2.12. Program: here synonymous to Software.
2.13. Software: Software is a collective term for executable programs and the associated data. It is used to perform tasks in an automated manner.
2.14. Hardware: here: Hardware is the generic term for the mechanical and electronic equipment of a computer system.
2.15. Software Handover Point: the router exit of the data center where the Server running the Software is located.
2.16. Defect: here: A defect is the behavior (of a software or a service of JENTIS as licensor) that leads to an unexpected or undesired result. (see also Austrian Civil Code (ABGB) § 922ff)
2.17. Malfunction: A malfunction is a manifest impairment, which includes technical and organizational errors as well as negative external influences on the software service (e.g. lightning strike, flood, power failure over a longer period of time).
2.18. Force Majeure: shall mean unforeseeable, unavoidable events that are beyond the control of all parties involved in a business relationship and that cannot be avoided by reasonable, appropriate means under the circumstances, such as war, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign intervention, failure of power supply, failure of means of transport, failure of telecommunication networks or data lines, changes in the law affecting the services after conclusion of the contract or other unavailability of products and / or services.
2.19. Session: A session is the continuous active use of a website or, if applicable, app by a user. As soon as a user is inactive for at least 30 minutes, each subsequent activity is assigned to one or more new sessions by default.
2.20. Connected Application: JENTIS offers various interfaces so that external applications can be integrated. Such an application can only be made by an installation process by the licensee.
2.21. GDPR: The Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with regard to the Processing of Personal Data and on the Free Movement of such Data, and repealing Directive 95/46/EC (Data Protection Directive).
2.22. A-Record: a 32-bit IP address (version 4) in terms of the Domain Name System.
2.23. Thousand Input Output Sessions: TIOS define the number of data streams processed by the JENTIS system. The TIOS value depends on the number of input streams (data streams sent to JENTIS) and the number of pixels creating output streams (data streams sent from JENTIS).
3. Trial Period
3.1. The Trial Period is specifically designed to give the Customer an opportunity to test the JENTIS Software on its website.
3.2. The Trial Period starts with the execution of a written agreement between the Customer and JENTIS. Such written agreement shall include the specific offer to the Customer, the Order Form for Trial Period and other documentation describing the specific terms of the trial
3.3. For the duration of the Trial Period JENTIS provides access to the components of the Software as agreed with the Customer. The Customer agrees to comply with the technical specifications, as indicated by JENTIS.
3.4 The Customer and JENTIS agree to keep confidential any information they provide to each other during the Trial Period.
3.5 To the extent that the Customer processes or has processed personal data on Software components provided by JENTIS for the Trial Period, a Data Processing Agreement must be concluded. JENTIS will process personal data provided under the concluded Data Processing Agreement as a Processor, with the Customer being the responsible party (Controller) within the meaning of the GDPR.
3.6 At the end of the Trial Period, JENTIS will make the results of the Trial Period available to the Customer.
3.7 If the Trial Period does not lead to an immediate Contract closure for the JENTIS SaaS license, JENTIS will return all documents of the Customer as well as data carriers related to the Trial Period and erase the data stored on behalf of the Customer, insofar as no retention obligations or rights exist.
4. Scope of Service, Rights to Use the Software
4.1. The Customer has the right to use the JENTIS Software exclusively on the basis of a Contract concluded with JENTIS.
4.2. The JENTIS Software consists of the components described in the Order Form and, if applicable, other terms of contract.
4.3. For the duration of the Contract, JENTIS grants the Customer the non-exclusive, non-transferable right, limited in time to the agreed duration, to use the JENTIS Software for the purposes indicated in the Contract in accordance with the product description.
4.4. The JENTIS Software runs exclusively on the servers of JENTIS or on the servers of a contracted company. The Customer is not granted any further rights to the Software products used, nor the right to access the source code.
4.5. JENTIS grants the Customer the right to use the JENTIS Software in the version agreed upon execution of the Contract as provided at the Handover Point. JENTIS provides the Customer with access to the JENTIS Software, the computing capacity required for its use, as well as the storage and data processing space required to operate the Software. JENTIS is not responsible for establishing and maintaining the data connection between the Customer’s IT systems and the Handover Point.
4.6. All documents provided to the Customer by JENTIS, in particular the documentation for software products and cloud services, may not be reproduced or distributed in any way, whether for a fee or free of charge.
4.7. The Customer is entitled to change the facilities used to provide the services at its own discretion, provided that there is no impairment of the services nor possible legal implications to be expected in relation to compliance with data protection legislation.
4.8. The use of the Software is permitted to the extent that it does not exceed the following tracking limits:
- maximum TIOS,
- maximum main domains to be tracked.
4.10. Services by JENTIS, which are ordered and used by the Customer beyond the respective agreed terms of contract, will be remunerated by the Customer according to the actual personnel and material costs at the applicable rates established by JENTIS. This includes, in particular, services provided by JENTIS outside of the usual business hours, the analysis and elimination of malfunctions and errors caused by improper handling or operation by the Customer or other circumstances for which the Customer is not responsible. Likewise, training is generally not included in the scope of services and requires a separate agreement.
4.11. To the extent JENTIS at the request of the Customer acts as an intermediary for services of third parties, these contracts are concluded exclusively between the Customer and the third party according to the respective terms and conditions of the third party. JENTIS is only responsible for the services provided by JENTIS itself.
5. Availability of the Software, Service Malfunctions, Software Defects
5.1. JENTIS undertakes to provide the agreed services on time and in the quality specified in the contract.
5.2. If JENTIS does not provide the agreed services on the scheduled dates or with significant deviations from the agreed quality standards, JENTIS is obliged to begin correcting the defects immediately and to provide the services properly and free of defects within a reasonable period of time by repeating the affected services or performing any necessary remedial work, according to JENTIS’ own choice.
5.3. A malfunction or a defect of the JENTIS Software exists if the Software does not perform the agreed functions pursuant to the product description. The Customer will support JENTIS in the elimination of the malfunction and provide all necessary information. The Customer must report any defects or malfunctions to JENTIS. In addition, the Customer is obliged to disclose to JENTIS, within a reasonable period of time, all documents and information necessary to prove that there is a malfunction.
5.4. Malfunctions must be reported by the Customer with a description which is as detailed as possible in order to enable efficient troubleshooting by JENTIS. The manner of error reporting and the scope of support services are governed by the Licensing Agreement. Defects or malfunctions caused by hardware or software components located after the Handover Point do not fall within the scope of responsibility of JENTIS and must therefore be remedied solely by the Customer.
5.5. In cases where the Customer is responsible for the defect, an obligation on the part of JENTIS to rectify the defect free of charge is excluded and the contractual services of JENTIS are deemed to have been provided in accordance with the Contract. The Customer must place an order with JENTIS for a remedy of the defect at the Customer’s expense.
5.6. Restrictions or impairments of the services that lie outside the sphere of influence of JENTIS and insofar as they affect the availability or functionality of the service provided by JENTIS have no influence on the assessment of the contractual conformity of the services provided. Limitations or impairments of the services, to the extent they affect the availability or functionality of the services provided by JENTIS, may include in particular (1) actions of third parties not acting on behalf of JENTIS, (2) technical conditions of the Internet that are beyond the control of JENTIS, (3) force majeure, (4) the hardware and software used by the Customer and/or (5) its technical infrastructure.
5.7 Insofar and as long as obligations cannot be fulfilled by JENTIS on time or properly due to a force majeure, in such case non-fulfillment of obligations shall not constitute a breach of contract.
5.8. Unless otherwise agreed, a price reduction due to defects or malfunctions shall be excluded.
6. Cooperation obligations of the Customer
6.1 The Customer agrees to support all measures necessary for JENTIS to provide the services.
6.2 The Customer is responsible to governmental and official authorities in relation to compliance with all relevant legal regulations, in particular the obligation to retain data and maintain data accuracy.
6.3. The Customer is responsible for meeting the system requirements defined in the product description for the use of the JENTIS software.
6.4 The Customer must keep confidential the provided access data and ensure that the employees to whom access data is made available are subject to the corresponding confidentiality obligation. The service provided by JENTIS may not be made available to third parties unless this has been expressly agreed by the Parties.
6.5. The Customer shall provide, on the agreed dates and at its own expense, all information, data and documents required by JENTIS for the performance of the contractual services in the form requested by JENTIS and shall support JENTIS upon request in problem analysis and troubleshooting, coordination of processing orders and coordination of services. Changes in the Customer’s work processes that may cause changes in the contractual services to be provided by JENTIS to the Customer require prior coordination with JENTIS regarding their technical and commercial impact.
6.6. The Customer shall arrange for a network connection at its own risk and expense.
6.7. The Customer shall perform all obligations to cooperate as required in such a timely manner that JENTIS is not hindered in the provision of the services. The Customer is obliged to ensure that the employees of its affiliated companies or third parties commissioned by it who are involved in the performance of the contract cooperate accordingly in relation to the performance of the Contract. If the Customer does not fulfill its obligations to cooperate on the agreed dates or not to the extent provided for in the Contract, the delivery date of the services by JENTIS will be postponed for a reasonable time. In this case, the Customer must compensate JENTIS separately for the additional work and / or costs incurred at the applicable rates.
6.8. The Customer shall ensure that its employees and affiliated third parties treat the equipment and technologies used by JENTIS as well as any assets provided to it with care; the Customer shall be liable to the licensor for any damage.
6.9 Unless otherwise agreed, the Customer shall provide materials and cooperation free of charge.
7. Data Processing
7.1. With respect to data, including personal data, processed by the Customer in the course of using JENTIS Software, JENTIS is a technical service provider and the Data Processor. As a technical service provider, JENTIS stores the content and data entered by the Customer into JENTIS Software on behalf of the Customer in order to make this content and data available for retrieval by the Customer when using JENTIS Software.
7.2. All collected data and those data that are newly created from processing procedures remain the property of the Customer, regardless of the storage location. Such data can be exported and erased at any time upon Customer’s request.
7.3. If the Customer processes personal data or has personal data processed on IT systems for which JENTIS is technically responsible, a corresponding Data Processing Agreement must be concluded. JENTIS shall process personal data on behalf of the Customer as the Data Processor and within the limits of the Data Processing Agreement concluded with the Customer, whereby the Customer shall be the Controller within the meaning of the GDPR.
7.4. JENTIS undertakes to store all data exclusively in the territory of the EU. JENTIS undertakes not to forward customer data to external services for processing, except to the applications that are connected by the Customer.
7.5. The Customer is the responsible party for the processing of personal data when using the JENTIS Software. The Customer is obliged to ensure that the processing of personal data through the use of the JENTIS Software is based on the appropriate permissions and consents.
7.6. The Customer owes an obligation to JENTIS not to post any content or data that is criminal or otherwise illegal in absolute terms or in relation to individual third parties, and not to use any programs containing viruses or other malware in connection with the JENTIS Software. The Customer is solely responsible for all content used and data processed as well as for fulfillment of any legal requirements in relation thereto.
7.7. The Customer indemnifies JENTIS against any liability and costs, including possible and actual legal costs in connection with claims relating to personal data processed using the JENTIS Software or relating to personal data transmitted by the Customer to third parties, including via the JENTIS software.
8.1. The copyright to the JENTIS Software, the printed material and all copies of the Software is owned by JENTIS. The JENTIS Software is protected by the Austrian intellectual property laws and international treaty provisions. The Customer must therefore treat the JENTIS Software as any other work protected by copyright.
9. Cooperation obligations of the Customer
9.1. The remuneration to be paid by the Customer, invoicing and payment conditions result from the terms of contract and are indicated in the Order Form. The statutory value added tax shall be charged additionally. The remuneration for services not covered by the Contract is based on the price list provided by JENTIS.
9.2. Failure to meet payment obligations will result in the suspension of services until payment has been made. In the event of delayed payment, the statutory interest in the amount of 9.2% above the base interest rate pursuant § 456 of the Austrian Business Code (UGB) shall be deemed to have been agreed. Default in payment shall not lead to termination of the Contract.
9.3. Amounts paid for services that are either part of the existing Contract or were expressly ordered by the Customer separately but were not used cannot be refunded. The Customer shall not be entitled to a right to refuse performance of the Contract until the counter performance is effected.
9.4. The Customer is responsible for all charges resulting from the business relationship, such as legal transaction fees or withholding taxes. Should JENTIS be held liable for such charges, the Customer shall indemnify and hold JENTIS harmless.
9.5. JENTIS reserves the right to an annual price adjustment in relation to the remuneration for the services under the Contract based on the price forming factors. Price forming factors may include, but are not limited to inflation rates, employee costs, infrastructure costs, license costs, taxes, and levies.
10.1 JENTIS provides warranties within the statutory framework as provided by Austrian law. The agreed service times also apply to warranty claims.
10.2 If one of the warranty reasons occurs (e.g. crashes, data loss, unusual response times), JENTIS will first attempt to rectify the reason for the warranty free of charge. If a rectification is not possible within a reasonable period of time and a reasonable number of attempts, a price reduction may be granted. In this case, the Customer has the right to withdraw from the Contract. In this case, any remuneration paid under the existing Contract must be refunded by JENTIS within 30 days.
10.3 The Customer is obliged within a reasonable period of time to notify JENTIS in writing about the reasons for warranty.
11. Contract Duration and Termination of the Contract
11.1 The duration of the contract begins with the signing of the Contract by both Parties. Duration of the contract, unless agreed otherwise, is defined in the Order Form.
11.2 Each contracting Party shall be entitled to terminate the Contract unilaterally before the agreed expiration (extraordinary termination) for a good cause as provided by the Austrian law. A good cause may exist in cases where it becomes impossible to provide the services under the Contract or continue the performance under the Contract.
11.3 If the Customer is initiating the extraordinary termination of the Contract, the Customer shall pay the remuneration agreed under the Contract deducting the expenses incurred by JENTIS from the date of extraordinary termination and up to the date on which the Contract would have ended at the earliest in the event of an ordinary termination. The remuneration to be charged in this manner is due for payment immediately.
11.4 Extraordinary termination comes into effect only when made in writing in the form of a signed declaration of termination. The declaration of termination can be sent by e-mail or by a registered letter.
11.5 Upon termination of the Contract (either extraordinary or ordinary) , JENTIS will return all documents of the Customer as well as data carriers related to the Contract and will erase the data stored on behalf of the Customer, as long as there are no retention obligations or rights.
12. Liability and Compensation for Damages
12.1. JENTIS is liable for damages to the Customer that (1) were caused intentionally or through gross negligence by JENTIS, as well as any of JENTIS’ agents and employees, or (2) are based on a culpable breach of material contractual obligations on the part of JENTIS.
12.2. Material contractual obligations are those contractual obligations the fulfillment of which is essential for the proper performance of the Contract and the observance of which the contractual Parties may regularly rely on, and the violation of which on the other hand jeopardizes the achievement of the purpose of the Contract.
12.3. In all other respects, liability of JENTIS – on whatever legal grounds – is excluded.
12.4. JENTIS is not responsible for non-compliance with or violation of data protection laws by the Customer. The services provided by JENTIS must in no way be interpreted or understood as a legal indemnity from possible claims by third parties or by data protection or other authorities. Documents, work materials and/or advice provided by JENTIS in the course of its business relationship with the Customer shall in no way be construed as qualified legal advice and therefore cannot be used to defend against claims by third parties or by data protection or other authorities.
12.5. JENTIS is not liable for any damage to the Customer resulting from the loss of data, provided that the damage could have been avoided by the Customer regularly and completely backing up all relevant data.
13. Non-Disclosure Agreement (NDA)
13.1 The mutual maintenance of secrecy of confidential as well as personal information vis-à-vis third parties is of utmost importance to the Parties, in particular that this information is not disclosed or exploited in any form.
13.2 Confidential Information within the meaning of the Contract shall be all commercial, technical and other data, communications, documents and similar information, including textual, tabular, graphic, photographic, drawing, electronic, oral or other communications, computer software and hardware, know-how and all other information disclosed between the Parties, to the extent that it could be of economic interest to third parties and is not already public knowledge, irrespective of whether it has already been disclosed in the course of the preliminary discussions or will be disclosed in the future (hereinafter “Confidential Information”).
13.3 The Parties undertake to treat any confidential information arising from the Contract, including in the Trial Period, as strictly confidential and to ensure that unauthorized third parties cannot obtain knowledge thereof, whether directly or indirectly in any way whatsoever. The provisions of this NDA also extend to any kind of changes, modifications and further processing of Confidential Information.
13.4 Furthermore, the Parties agree that confidential information will not be used in any way for their own purposes, whether competitive or not, without the express prior consent of the other Party.
13.5 The Parties agree to keep any personal data from data processing entrusted to them in the course of the contractual relationship or which have otherwise become accessible confidential, unless there is a legally permissible reason for transferring the entrusted or accessible personal data. Such data also includes personal data of employees and other affiliated persons of either of the Parties. The Parties undertake, in the event of a mandatory disclosure of the information received, to inform the other Party immediately so that the other Party can make the appropriate arrangements to maintain the greatest possible confidentiality of the information.
13.6 Any use, processing, forwarding or duplication of data by one of the Parties for other purposes, i.e. outside the contractual relationship, shall require the express prior written consent of the other Party.
13.7 Immediately upon request by the Party in possession of the information, the other Party shall return and hand over the information in its entirety. To the extent that the Party concerned has made copies of data and information subject to this NDA, it shall likewise be obliged to hand them over or, upon discretion of the Party in possession, to destroy or delete them.
13.8. The Parties undertake to ensure that comprehensible internal instructions to employees or contractual obligations to third parties, who are considered subcontractors and not third parties in the sense of the Contract, shall be binding as the obligations under this NDA.
13.9 JENTIS is permitted, during the term of the Contract and within the 5 years following after its termination, to publicly name as a reference those companies or groups of companies of the Customer in which the product or parts thereof are used. Company and brand names, the current logo, the start of the business relationship and the fact that JENTIS products are used by this company may be mentioned.
14. Assignment of Rights and Obligations
14.1 The assignment of the Customer’s rights and obligations is permitted at any time within the group of companies as well as to legal successors of the Customer. The assignment of the Customer’s rights and obligations to third parties is only permitted with the prior written consent of JENTIS.
14.2 JENTIS is entitled to entrust third parties with the fulfillment of its obligations only with the prior written consent of the Customer.
14.3 Rights and obligations of JENTIS as well as the contractual relationship with the Customer are not affected by changes in the ownership of the company or the corporate form or structure of JENTIS.
15. Jurisdiction, Applicable Law
15.1 All legal relations between the Customer and JENTIS shall be governed by Austrian law, with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
15.2 The place of jurisdiction is Vienna, Austria.
15.3 Should individual provisions of this Contract be invalid in whole or in part, this shall not affect the validity of the remaining provisions. An invalid provision shall be replaced by the Parties by a provision which comes as close as possible to the economic purpose of the invalid provision and which is effective.
15.4 Any amendments, supplements, collateral agreements or the partial or complete cancellation of the contract shall be made in writing. This shall also apply to a waiver of the written form.
Status: November 2021