1 General Provisions
1.1
Sipfront GmbH
FN 542495 m
Towerstraße 3/Top C78, 1300 Vienna-Airport, Austria
("Sipfront")
provides SaaS solutions and related services for customers ("Customers") with regard to software testing for communication infrastructure ("Services").
1.2
Sipfront provides all Services to its Customers on the basis of these General Terms of Service ("GTS"), which are available at any time at https://www.sipfront.com/tos.html, in each case in the version valid at the time of the conclusion of the Contract and as amended from time to time according to paragraph 1.5 below.
1.3
These GTS shall apply both to Contracts with consumers within the meaning of section 1 paragraph 1 no. 2 of the Austrian Consumer Protection Act ("KSchG") ("Consumers") and to Contracts with undertakings within the meaning of section 1 paragraph 1 no. 1 KSchG ("Undertaking"). With respect to Undertakings, the GTS shall also apply to future transactions between the Parties, even if no further reference is made to them when the Contract is concluded in the future, provided that they have a factual connection to the contractual relationship in question. With respect to Consumers, the GTS shall apply if they have been agreed upon and made available prior to the respective conclusion of the transaction.
1.4
General terms and conditions of Customers that provide for regulations deviating from these GTS or other contractual agreements between Sipfront and a Customer shall only apply if Sipfront has expressly submitted to them in writing.
1.5
Sipfront reserves the right to change these GTS at any time and without giving reasons. Changes to the Fees or the scope of agreed Services in the Contract are only possible with the express consent of the Customer. Changes to the GTS, which apply to existing contractual relationships, must be announced at least 30 days before they come into effect on Sipfront’s website at https://www.sipfront.com/tos.html, and by sending the text of the GTS to the e-mail address last notified by the Customer. If the Customer does not object to the changes within 20 days of receipt of the aforementioned announcement in writing by e-mail to gtos@sipfront.com, the changes shall be deemed accepted. In the event of a timely objection by a Customer, the contractual relationship between this Customer and Sipfront shall be terminated at the earliest possible date according to paragraph 14.1 below and until then continue in accordance with the GTS in the version prior to the announced change.
2 Conclusion of Contract
Online Registration & Purchase
2.1
In order to purchase Services, the Customer needs to create an account at https://app.sipfront.com/register ("User Account"). After registration and email address verification, the Customer can log into its User Account at https://app.sipfront.com/login at any time to access its Services, manage its User Account and make additional purchases.
2.2
When purchasing Services via the User Account, the Customer makes a binding offer to Sipfront to conclude a Contract for the respective Services by clicking on the button “Subscribe”, to which the Customer remains bound for one week. The Contract for the provision of the Services is concluded as soon as the Customer has received a written order confirmation from Sipfront by e-mail or as soon as Services are provided to the Customer, whichever is earlier ("Contract").
2.3
By clicking the checkbox “I have read and accept the General Terms of Service” during the ordering process, the Customer confirms that it has read and understood the GTS and expressly accepts these GTS.
2.4
In case Customer is an Undertaking, Customer shall ensure that the access and the administration as well as the making of purchases via the User Account is carried out by a duly authorized representative at all times.
Offline Purchase
2.5
If, in exceptional cases, Services shall be purchased offline, the following provisions shall apply: The Customer shall receive a written offer from Sipfront for the type, scope and Fees of the provision of Services. Sipfront’s offers or any Fee estimates are non-binding and subject to change unless they are expressly designated as binding.
2.6
In the case of non-binding offers, the Contract between the Parties shall only come into existence upon written order confirmation by Sipfront or, in the absence of such order confirmation, upon commencement of the performance of the Services described in the offer (e.g. provision of SaaS). In the case of binding offers, the Contract shall be concluded upon written acceptance of the offer by the Customer within the offer period specified in the offer.
Right of Withdrawal for Customers
3.1
If the Customer is a Consumer, the relevant provisions of the Austrian Distance and Off-Premises Contracts Act (Fern- und Auswärtsgeschäfte-Gesetz – FAGG; as the Austrian national transposition of the Directive 2011/83/EU) shall apply to distance Contracts concluded by means of online purchasing ("Distance Contract"). The Customer may withdraw from Distance Contracts without giving any reasons and without observing any particular form within 14 days from the conclusion of the Distance Contract.
3.2
The Customer may use the model withdrawal form as inserted below for this purpose or declare its withdrawal to Sipfront (contact details according to section 4) in any other way. In order to comply with the withdrawal period it is sufficient if the Customer sends a notice about the exercise of the right of withdrawal before the withdrawal period expires. In case of withdrawal and if payments were made by Customer, those payments will be refunded.
3.3
If the Customer has requested Sipfront to start with the performance of the Distance Contract before expiry of the withdrawal period and if the Customer nevertheless withdraws, it has to pay Sipfront – insofar as provided Services are not free of charge – a proportionate amount of the agreed fee. If Sipfront has already completely fulfilled the Distance Contract in this case, the right of withdrawal does not apply and the complete fee has to be paid by Customer.
4 Model Withdrawal Form
To
Sipfront GmbH
Towerstraße 3/Top C78
1300 Vienna-Airport
Austria
I/We hereby give notice that I/we withdraw from my/our contract for the provision of the following service [name of service], purchased on [date],
[Name of Consumer(s)],
[Address of Consumer(s)],
[Signature of Consumer(s) (only if this form is notified on paper)],
[Date]
5 Subject of the Contract & Provision of Services
5.1
The subject of the Contract are the legal, organizational, commercial and technical conditions for the respective provision of Services as specified in the Contract.
5.2
Services in the form of SaaS are considered to be provided “as is”. Services, in particular SaaS, can generally be accessed via the sipfront.com website, unless otherwise agreed in the Contract or results from the nature of the Service. In any case, Sipfront does not provide the necessary client hardware or software to use the Services accordingly. Further, Sipfront assumes no responsibility for the Services being compatible with any hardware and software used by the Customer.
5.3
If written or audio-visual reports, recommendations, protocols and the like are provided within the scope of Services, these shall not constitute expert opinions – unless expressly agreed otherwise in writing.
5.4
Sipfront has freedom of design in the provision of Services (in particular regarding provision of SaaS) within the agreed contractual scope, unless otherwise agreed in writing. Sipfront is furthermore entitled to modify agreed Services to a reasonable extent.
5.5
Sipfront shall be entitled to engage subcontractors with appropriate qualifications, for whose conduct Sipfront shall be liable to the Customer as for its own.
6 Service Provision and Cooperation
6.1
In order to provide the Services, Sipfront may require certain information, data and documents, which describe Customer’s intent in relation to the Services (like e.g. requirement specifications) or allow the Services or Sipfront to perform its tasks (like e.g. access information to Customer systems, or captured network traffic) and which may vary depending on the nature of the Services. These are to be provided by the Customer in a timely and complete manner upon Sipfront’s request. The Customer shall inform Sipfront of any circumstances that are relevant to the performance of the Contract. Additional expenses due to incorrect, incomplete or omitted information shall be borne by the Customer; this may be charged to the Customer additionally.
6.2
It is the responsibility of the Customer to check the accuracy and lawfulness of the information (including documents, designs, software and others) provided for the performance of Services and to check such information for any third-party rights and harmful content (including, but not limited to, virus, spyware etc). Sipfront shall not be obliged to check in this respect and may assume Customer owns all required rights to use the information for the intended purposes. If the Customer further transmits personal data of its data subjects to Sipfront, Sipfront shall assume that the Customer has the corresponding authorization to do so. If a claim is made against Sipfront due to Customer’s infringement of third party and data protection rights, the Customer shall indemnify and hold Sipfront harmless in this regard.
6.3
The Customer grants Sipfront the right, free of charge, non-exclusive and for a limited period of time, to use all information provided by the Customer for the provision of Services and to the extent necessary for the fulfilment of the Contract.
6.4
If Services, in particular software, are to be executed in a virtualized environment on Customer equipment, Customer is responsible to ensure that such equipment and virtualized environment provides sufficient resources (in terms of computing power, licenses, and otherwise) to execute the Services, in particular the software, to the desired extent. Sipfront will provide performance metrics which allow Customer to provisionally estimate required resources. Customer acknowledges that insufficient resources may limit the ability to execute certain tests in specific quantity or quality.
7 Copyrights of Sipfront
7.1
The Customer acquires the non-exclusive, non-transferable right, limited in time for the duration of the Contract, to use works associated with the Services (in particular SaaS, “Works") for internal and professional purposes within the Customer’s organization (in case Customer is an Undertaking).
7.2
Works include in particular SaaS, its underlying software, as well as other content provided by Sipfront (such as, in particular, offers, drafts or other data carriers) and are protected by copyright and may not be used or edited beyond the right of use granted in the Contract without Sipfront’s prior written consent. The Customer agrees not to decompile the Works, not to reverse engineer the Works, not to attempt to obtain the source code of the Works, not to edit or modify the Works or to create derivative works from the Works.
7.3
The Customer acquires the non-exclusive, non-transferable right, unlimited in time, to use work results created by the Services (in particular measured data, test results, analyses and reports, “Work Results”) for internal and professional purposes of Customer or of Customer’s organization (in case Customer is an Undertaking). Sipfront reserves the right to store and use such Work Results to the extent they do not contain personal data for its own professional purposes, in particular to improve and further develop the Services for Customer and other Customers of Sipfront.
7.4
Furthermore, the Customer is entitled to reproduce any user documentation related to Services or parts thereof and distribute it on a need to know basis as required to utilize the Services, but may not hand it over to unauthorized persons.
7.5
The Customer expressly does not acquire any rights of use whatsoever to the object code and/or source code of Services (in particular SaaS).
7.6
The acquisition of the rights of use according to paragraph 7.1 requires in any case the full payment of the Fee invoiced by Sipfront for the related order.
7.7
Under no circumstances shall any unauthorized reproduction or distribution of Services give rise to any liability on the part of Sipfront - in particular, for example, for the correctness of the Services - vis-à-vis third parties.
7.8
The Customer’s breach of the provisions of this section 7 shall entitle Sipfront to immediately terminate the Contract prematurely for cause and to assert other legal claims, in particular for injunctive relief and damages.
8 User Account
8.1
The Customer and its representatives are obliged to keep the access to the User Account confidential. The Customer is responsible for all activities that originate from the User Account.
8.2
Customer acknowledges that inadequate use of the Services can potentially severely impact essential communication infrastructure, and it will at all times apply greatest care when using the Services. Customer will only use the Services in line with applicable laws and in connection with communication infrastructure which is owned and operated by Customer, or where Customer has explicit written permission of the owner and the operator to use the Services as intended.
8.3
The Customer is obliged to notify Sipfront immediately as soon as unauthorized use of a User Account is suspected. Inquiries by Sipfront shall be answered to within a reasonable time.
8.4
Sipfront reserves the right to temporarily suspend a User Account if it detects suspicious activity originating from it (such as in particular an excessive number of calls, an unusual high variance of target systems, or substantiated complaints by third parties), to protect its Services, other Customers and third parties. Sipfront will immediately notify Customer of such suspension, providing all reasonable support and information on how to resolve the issue. Sipfront shall not assume any liability with regard to Customer’s actions.
9 Liability
9.1
The provision of Services by Sipfront is purely a service activity. Therefore, no success is owed in relation to the goals sought through the use of the Services. Sipfront assumes no liability for the availability of and the accuracy, timeliness and completeness of the results obtained through the use of the Services. Likewise, not for any consequential damages. The Customer is therefore solely responsible for critically examining results as obtained through the Services and assessing it on its own responsibility.
9.2
Insofar as the Customer is a Consumer and Sipfront is liable for damage, liability shall be limited to damages caused intently or gross negligently. Any liability for damages slight negligently caused shall be excluded, except in cases of personal injury and damages arising from the breach of contractual primary obligations.
9.3
Insofar as the Customer is an Undertaking and Sipfront is liable for damage, liability shall be limited to damages caused intently or gross negligently and any liability for damages slight negligently caused shall be excluded, to the extent legally permissible. Any liability of Sipfront for atypical damage, loss of profits, damage due to errors, indirect and consequential damage and damage to third parties is excluded.
9.4
Insofar as the Customer is an Undertaking, claims for damages by the Customer expire six months after knowledge of the damage and the damaging party, but no later than two years after Sipfront’s conduct giving rise to liability.
9.5
Each Customer undertakes to transfer to its representatives, who are accessing Services, all obligations arising from the Contract and, as far as possible, to ensure that the Contract is complied with. Each Customer shall be liable to Sipfront for any corresponding misconduct of its representatives. The Customer shall also fully indemnify and hold Sipfront harmless against claims by representative that are due to a breach of the Customers' obligations towards Sipfront.
10 Warranty
10.1
Despite all efforts, Sipfront cannot guarantee that provided Services, in particular SaaS, or the underlying software is completely error-free.
10.2
Services are created / provided by experienced experts according to the state of technology. Sipfront reserves the right to make changes to the Services, provided that they do not fundamentally change the nature of the contractually agreed, as well as to replace individual Services, unless specifically agreed otherwise. Such changes of Services shall therefore not result in any defectiveness of the Service.
10.3
The Customer shall report any errors occurring during the use of the Services (in particular SaaS) to Sipfront. An error exists if the Service does not perform the functions specified in the Contract, delivers incorrect results, or does not behave in a functional manner in any other way, so that the use of the Service is impossible or significantly restricted. Sipfront shall locate, analyse and correct errors reported by the Customer or detected by Sipfront in the course of the operation of the Service within a reasonable timeframe.
10.4
If a defect of a Service is exclusively due to incorrect information and incorrect operation by the Customer, the Customer shall have no warranty claims.
11 Terms of Payment
11.1
The fees for Services provided are agreed upon in the Contract ("Fees"). Unless expressly stated otherwise, all Fees are excluding statutory value-added tax and any other current or future applicable statutory duties.
11.2
Billing shall take place in monthly billing periods starting at the time and day of purchase and starting/ending at the same time and day of month in each following calendar month (each period hereinafter also referred to as a “month” in this paragraph). Subscriptions which are purchased as an addition to an existing subscription, inherit the billing period from such existing subscription and may be prorated in the first month if applicable. With regard to fixed Fees, such as base fees and standard usage packages, the billing takes place in advance for each month for existing subscriptions, or at the time of order for new subscriptions or one-time purchases, respectively. The billing for variable Fees, such as individual usage Fees, shall take place at the beginning of the month following the month, in which the respective Services were provided.
11.3
Payment is made via direct debit from the specified payment method by Sipfront on the invoice date.
11.4
Sipfront reserves the right to start providing the Services only after receipt of the first payment.
11.5
The Customer is not entitled to set off counterclaims against claims of Sipfront unless such counterclaims have been determined by a court or acknowledged by Sipfront in writing. This does not apply to Consumers.
12 Value Assurance
12.1
Periodically accruing Fees shall be adjusted according to the Consumer Price Index. The Consumer Price Index 2015 (base year 2015), which is published monthly by Statistics Austria, or an index replacing it, serves as a measure for the calculation of the stable value. The reference figure for the Contract is the index figure calculated for the month in which the Contract is concluded. Fluctuations of the index number upwards or downwards of up to and excluding 5 % shall be disregarded. This margin shall be recalculated each time it is exceeded, either upward or downward, and the first index figure outside the applicable margin shall always form the basis for both the recalculation of the claim amount and the calculation of the new margin. All rates of change shall be calculated to one decimal place.
12.2
Failure to exercise the right to value adjustment shall not constitute a waiver of future adjustments. Index adjustments of the charges do not entitle the Customer to extraordinary termination.
13 Default of Payment by the Customer
13.1
The Customer shall comply with the agreed payment deadlines. In the event of late payment of Fees, Sipfront shall be entitled to withhold its Services or to terminate the contractual relationship with immediate effect following an unsuccessful reminder setting a grace period of at least fourteen days and additionally at least one reminder setting a grace period of at least one additional week. As an alternative to termination, Sipfront may also make the further provision of Services dependent on a reasonable security deposit or advance payment.
13.2
In case of payment default of Customer, Sipfront is entitled to a statutory interest rate of 4 % per annum. In the case of payment defaults where Customer is an Undertaking, the interest rate is increased to 9.2 % above the prime rate of the relevant half-year, provided that the Customer is responsible for the delay. Furthermore, Sipfront shall be entitled to charge all costs incurred and necessary for the purposeful prosecution in case of default of payment for which Customer is responsible.
14 Term and Termination
14.1
The Contract is concluded for an indefinite period of time and may be terminated by either Party at any time to the end of any billing period as defined in 11.2 above.
14.2
Customer may upgrade its Services to a higher quality or volume at any time. Downgrades of Services to a lower quality or volume may be done at the end of every billing period as defined in 11.2 above.
14.3
In addition, the Contract may be terminated by either Party for good cause at any time without notice.
15 Confidentiality and Data Protection
15.1
Sipfront undertakes - also beyond the end of the Contract - to treat all data and information disclosed to it in connection with the provision of Services confidential. Excluded from these obligations are those cases in which there is a legal or official obligation to disclose such confidential information or data.
15.2
A privacy policy according to Art 13 and 14 GDPR is available on Sipfront’s website in the respective current version.
15.3
As regards Customers who are Undertakings: The Parties undertake to observe the statutory provisions of data protection, in particular the General Data Protection Regulation ("GDPR"), and to impose compliance with these provisions on their subcontractors and employees. Sipfront shall generally be regarded as a processor within the meaning of Art 4 No. 8 GDPR vis-à-vis the personal data of Customer and or the personal data Customer is responsible for. The Parties shall enter into a Controller-Processor-Agreement for this purpose pursuant to Art 28 GDPR.
16 Reference (only applicable to Undertakings)
16.1
The Customer grants Sipfront the right to use the Customer’s name together with a description of the Services provided under the Contract in publications for illustration and advertising purposes in both print and electronic media, if necessary also adding literal quotations and using the Customer’s logo, and to name the Customer as a reference customer within the scope of Sipfront’s commercial activities.
16.2
The consent to be named as a reference Customer can be revoked at any time. The revocation must be made in writing. Should it not be possible to cancel any publications that have already been made for technical or practical reasons (e.g. publication in a print medium that has already taken place) after receipt of the declaration of revocation, no claims by the Customer against Sipfront can be derived from this.
17 Choice of Law, Place of Performance, Place of Jurisdiction
17.1
All disputes between Sipfront and Customer shall be governed exclusively by Austrian law, with the exclusion of the UN Convention on Contracts for the International Sale of Goods and the conflict-of-law rules of private international law. Mandatory consumer protection law, in particular beneficial statutory law applicable at the Consumer’s place of business, shall remain unaffected.
17.2
For all disputes between Sipfront and its Customer, the Parties agree on the exclusive jurisdiction of the court having subject-matter jurisdiction for Vienna. This paragraph 17.2. does not apply to Consumers.
17.3
Unless otherwise agreed in writing, the place of performance for Services by Sipfront shall be its registered office.
18 Final Provisions
18.1
Except for Consumers, each party shall bear its own taxes, duties or fees arising from the establishment of the Contract.
18.2
Amendments, supplements and ancillary agreements to the Contract must be made in writing to be effective. This also applies to the agreement to deviate from this formal requirement. In case of contradictions between the Contract and deviating written agreements between the Parties, the provisions of the deviating agreements shall prevail. This paragraph 18.2 does not apply to Consumers.
18.3
Should individual provisions of the Contract, including these GTS, be or become invalid, this shall not affect the remaining content of the Contract. In case Customer is an Undertaking, the invalid provision shall be replaced by a valid provision that is legally valid and comes as close as possible to the economic intent of the Parties.
18.4
In the absence of any provision to the contrary in the Contract, the provisions and rights arising from the Contract may not be passed on or assigned to third parties without the written consent of the other Party. The written form requirement does not apply to Consumers.
18.5
A “third party” in the sense of these GTS shall be any natural or legal person different from the Parties in the legal sense, even if legal and/or economic relations should exist with such a person.