License Agreement

Last updated: 08.12.2021
Please read this License Agreement carefully before clicking the "I Agree" button or downloading or using Smart Report Organizer.

---

1. Preamble

The company DataZimmermann, owner Gilbert Zimmermann, Unterer Aubachweg 35, 6300 Wörgl, Austria (hereinafter referred to as the "LICENSER"), offers the software solution "Smart Report Organizer" (hereinafter referred to as the "SOFTWARE"). The SOFTWARE is based on the SAP software of the company SAP SE. The LICENSER wishes to make the SOFTWARE available to business partners (hereinafter referred to as the "CUSTOMER") against payment. The SOFTWARE is operated on-premise at the CUSTOMER. This licence agreement is based on the assumption that the CLIENT is an entrepreneur within the meaning of section 1 ( 1) no 1 of the Austrian Consumer Protection Act („KSchG“). For the purpose of better readability, no gender-specific differentiation is made. This is done without any intention of discrimination. All genders are equally addressed. This license agreement regulates the acquisition, use and exploitation of the SOFTWARE as well as the associated business and administrative activities. The business and contractual language is German. For the avoidance of doubt, it is stated that the licence conditions (if any) of SAP SE shall apply with regard to the use of the SAP software. These licence conditions may be permanently stored on the CUSTOMER's computer and/or printed out by the CUSTOMER for the purpose of the online order.

2. Conditions of use

The CUSTOMER is obliged to provide true and complete information in the course of the business relationship and to keep his data up to date at all times. The CUSTOMER shall treat his data confidentially (this applies in particular to any log-in data or passwords). If the CUSTOMER suspects misuse by third parties, he must inform the LICENSER immediately. The CUSTOMER shall refrain from all measures which could endanger or impair the technical provision of the SOFTWARE by the LICENSER (including cyber attacks). The CUSTOMER shall take suitable precautions to protect the SOFTWARE from unauthorised access by third parties. The CUSTOMER shall inform its employees or persons similar to employees and end users that it is not permitted to make copies beyond the contractual scope. It is the CUSTOMER's responsibility to create the necessary infrastructure for the operation of the SOFTWARE. The LICENSER shall have no further obligations to provide information or advice in this respect. It is the CUSTOMER's responsibility to check the compatibility (i.e. the ability to interact with the CUSTOMER's existing software and hardware infrastructure) and the functional scope of the SOFTWARE before using it against payment. The LICENSER shall not be subject to any obligations of explanation, training or installation. The delivery of a manual is expressly not owed.

3. Offer and conclusion of contract

After entering the required data in the web mask provided for this purpose, the CUSTOMER places a binding order with the LICENSER by clicking the button "order now subject to payment". Before finally submitting an order, the CUSTOMER has the opportunity to check it again for any errors and to correct it if necessary. The contract with the LICENSER shall only be concluded if the LICENSER expressly accepts the order ("order confirmation") or if the key to the SOFTWARE is activated. The scope of services, the duration of the use of the SOFTWARE and the number of permitted jobs result from the CUSTOMER's selected package.

4. Payment modalities

The amount of the fee results in each case from the offer of the LICENSER. The prices quoted are in EUR or USD, depending on the choice of the CUSTOMER. In case of doubt, the value added tax is not yet included. The amounts stated at the time of the order shall apply in each case. The fee for the use of the SOFTWARE must be paid in full in advance when purchased via the website. Notwithstanding the foregoing, claims of the LICENSER shall become due upon presentation of the invoice and shall be paid within 14 days without discount. In the event of a delay in payment of more than 30 days, the LICENSER shall be entitled to withhold its performance vis-à-vis the CUSTOMER and to block and/or delete the user account for the SOFTWARE without separate notice. Any damage incurred by the CUSTOMER or its end customer or third parties as a result thereof cannot be asserted at the expense of the LICENSER. If the claims are not paid within fourteen days, the LICENSER shall charge the legally permissible interest on arrears within the meaning of section 456 of the Austrian Commercial Code („UGB“) from the due date. A fee of EUR 40.00 per reminder (section 458 UGB) may be charged for reminders.

5. Right to use the SOFTWARE

The LICENSER grants the CUSTOMER a non-exclusive licence to use the SOFTWARE, limited in terms of content, time and place for the purposes of the business relationship (within the meaning of section 24 (1) first sentence Austrian Copyright Act „UrhG“). Unless expressly agreed otherwise, the period of use shall be 1 year from the date of conclusion of the contract. The exclusive right to use the SOFTWARE (within the meaning of section 24 (1) second sentence UrhG) shall in any case remain with the LICENSER. The rights of use agreed within the meaning of this contract shall only be granted to the CUSTOMER after full payment of all fees to the LICENSER. Sub-licensing or further licensing shall only be permissible with the express consent of the LICENSER. The right to decompile the SOFTWARE is excluded to the extent permitted by law. The CUSTOMER may not make any changes to the SOFTWARE without the consent of the LICENSER. Use of the work in the sense of § 40d UrhG remains unaffected. Markings of the SOFTWARE, in particular copyright notices, trademarks, serial numbers or similar may not be removed, changed or made unrecognisable. The surrender of the source code of the SOFTWARE is not owed, unless expressly agreed otherwise. Neither is a user manual owed, nor the performance of training courses. With regard to open source components used, reference is made to point 6.

6. Usage of Open Source Components

The SOFTWARE developed and provided by the LICENSER contains components which are licensed as open source software (hereinafter referred to as the "OSS components"). The OSS components may be used exclusively under the respective OSS licence conditions. The OSS components are listed in Appendix I. The source code of the OSS components, the respective licence texts, any copyright notices and their disclaimers shall be made available to the CUSTOMER via link in Appendix I. At the CUSTOMER's request, the source code of the OSS components may also be provided to the CUSTOMER separately. Attention: With regard to the OSS components used, the contractual partner of the CUSTOMER is not the LICENSER, but the respective open source licensor. Attention: The LICENSER draws attention to the fact that risks are associated with the use of OSS components. As - demonstrative - examples are to be mentioned: Because the source code of the OSS components is public, it is susceptible to security incidents; furthermore, permanent maintenance and use of the OSS components is not guaranteed.

7. Audit clause

The CUSTOMER is entitled to use the SOFTWARE for as many jobs as agreed in the contract. The LICENSER has the possibility to verify compliance with the use of the SOFTWARE in accordance with the licence. Irrespective of this, the LICENSER may demand proof from the CUSTOMER that the SOFTWARE is being used in accordance with the licence. Enquiries in connection with the license-compliant use of the SOFTWARE must be answered truthfully. The LICENSER shall be entitled to check the CUSTOMER's compliance with the use of the SOFTWARE in conformity with the law at any time after giving at least 14 days' notice on site (licence audit). The LICENSER may use the services of an auditor or lawyer bound to secrecy for this purpose. The LICENSER shall respect business and trade secrets as well as data protection interests of the CUSTOMER to the best of its ability. The audit shall be carried out during normal business hours and without disrupting the CUSTOMER's operations. The costs incurred in this connection shall be borne by each party. The CUSTOMER shall be obliged to provide the LICENSER with the information required for these purposes and to cooperate with the LICENSER in the course of the license audit. Otherwise the LICENSER shall be entitled to withhold its performance. This shall be without prejudice to any further legal claims.

8. Maintenance and support

Unless expressly agreed otherwise, no maintenance or support services are owed.

9. Change requests

The CUSTOMER is entitled to suggest changes to the SOFTWARE. The LICENSER shall not be obliged to comply with these change requests. The LICENSER shall be entitled to charge a separate fee for the implementation of the change requests. In this case, the LICENSER shall send the CUSTOMER a corresponding offer for the implementation of the change requests in advance. In this case, as generally in the case of services not already covered by the flat fee, an hourly rate of EUR 120.00 plus VAT shall apply. The LICENSER shall be solely and exclusively entitled to the copyright exploitation rights to these changes, unless expressly agreed otherwise. However, the LICENSER shall grant the CUSTOMER a licence to use these modifications for the duration of the contractual relationship within the meaning of section 24 (1) first sentence UrhG. The exclusive right to use the work (within the meaning of section 24 Αbs 1 second sentence UrhG) in respect of modifications within the meaning of this paragraph shall in any event remain with the LICENSER.

10. Duties to cooperate

The CUSTOMER is obliged to cooperate to the extent necessary for the use of the SOFTWARE. The LICENSER shall not suffer any disadvantages from a failure to comply with these obligations to cooperate.

11. Performance failures

If the LICENSER is temporarily unable to provide the SOFTWARE for reasons beyond its control (e.g. power failure, force majeure, cyber attacks, epidemics, problems with third-party software), the CUSTOMER's (full) payment obligations shall remain unaffected.

12. Liability and warranty

The LICENSER's liability for slight negligence is excluded. Liability shall be limited to the amount of the annual order value, but in any case to usually foreseeable damages. The LICENSER's liability for loss of profit by the CUSTOMER shall be excluded. Warranty claims shall become statute-barred within twelve months from acceptance of the SOFTWARE. Obligations to give notice of defects within the meaning of section 377 of the Austrian Commercial Code (UGB) shall be complied with. The time of acceptance of the SOFTWARE shall be the time of conclusion of the contract.

The LICENSER shall not be liable for third-party software (in particular SAP software), open source elements and software elements (plug-ins, library files) which have not been released by the LICENSER. Likewise, the LICENSER shall not be liable for software elements (plug-ins) programmed by the CUSTOMER himself. The LICENSER shall not be liable for any unlawful (in particular, but not exclusively, within the meaning of the GDPR) implementation and/or use of the SOFTWARE in the relationship of the CUSTOMER vis-à-vis the end user. The agreed limitations of liability shall also apply to subcontractors used by the LICENSER. In the event of use of the free version, all warranty claims are excluded.

13. Indemnifiaction

Should a claim be made against the LICENSER by a third party due to the unlawful use of the SOFTWARE by the CUSTOMER, the CUSTOMER undertakes to indemnify and hold the LICENSER harmless.

14. Use of subcontractors

The LICENSER may use subcontractors for the performance of its obligations under this Agreement.

15. Amendments of this license agreement

The LICENSER shall be entitled to amend this licence agreement at any time. The LICENSER shall inform the CUSTOMER of such amendments by sending the amended licence agreement to the contact details last notified to it. The CUSTOMER shall have the right to object to this amendment. If the CUSTOMER does not object within 14 days of this amendment being sent, implied consent to the amendment of the licence agreement shall be assumed.

16. Privacy and protection of business secrecy

The disclosure of data and information to the respective required business partners is permitted to the extent necessary for the fulfilment of the contractual relationship (Art 6 para 1 lit b GDPR). Otherwise, the LICENSER and the CUSTOMER shall be mutually obliged to maintain secrecy with regard to the circumstances and data relating to the other party of which they become aware as a result of the present business relationship and, in particular, to observe data secrecy. These obligations regarding data and business secrecy shall also apply beyond the contractual relationship. The LICENSER and the CUSTOMER further undertake to instruct and instruct their employees and vicarious agents in this sense. The contracting parties further undertake to protect mutually disclosed business and trade secrets appropriately within the meaning of section 26b (1) no. 3 Austrian act against unfair business practices („UWG“). It is pointed out that the source code programmed by the LICENSER constitutes a business and trade secret within the meaning of Section 26b UWG. Publication of the source code therefore requires the express consent of the LICENSER. The LICENSER informs that data of the CUSTOMER may be processed for advertising purposes on the basis of legitimate interests (Art 6 para 1 lit f GDPR).
The CUSTOMER is entitled to object to the processing of his/her data for advertising purposes (Art 21 (2) GDPR).

17. Reference clause

The LICENSER shall be entitled to indicate the fact of the business relationship with the CUSTOMER by means of a reference on its homepage or in business documents. The LICENSER shall be entitled to use the CUSTOMER's logo in this context. This right to name references also extends beyond the contractual relationship.

18. Duration of the contractual relationship

The contractual relationship is concluded for a period of one year from the date of conclusion of the contract. After the expiry of one year, the right to use the SOFTWARE ends automatically. The ordinary right of termination is excluded for this period. The LICENSER is not obliged to inform the CUSTOMER of the expiry of the contractual period.

19. Blocking access to the SOFTWARE

If the LICENSER has reasonable grounds to believe that the CUSTOMER is using the SOFTWARE in an unlawful manner, the LICENSER shall be entitled to block access to the SOFTWARE immediately and without prior notice. This shall not affect the possibility of further legal remedies.

20. Jurisdiction and applicable law

This contractual relationship shall be governed by and construed in accordance with Austrian law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and of conflict-of-law („Verweisungsnormen“) rules is excluded. The exclusive place of jurisdiction is the competent court in Kufstein, Austria.

21. Further issues

If any part of this licence agreement should be invalid, the validity of the remaining provisions shall not be affected thereby. The invalid provision shall be replaced by a valid provision which comes as close as possible to the economic intent of both contracting parties as discernible from the agreement. Amendments to this licence agreement as well as supplements thereto shall, without prejudice to the provision in clause 15, only be valid if they have been agreed and signed in writing. The LICENSER recommends that the CUSTOMER save this licence agreement permanently.

Appendix I: Open Source Notice

[AutoMapper/AutoMapper.dll]

[Newtonsoft.Json/Newtonsoft.Json.dll]