uTypia terms and conditions version 18
I.
Definitions
uTypia: Software- and
Service-Range of TRODAT for the
Internet.
uTypia
solution: a Software/Service solution out of the uTypia
Software- and Service-Range for example
uTypia professional shop, uTypia standard shop, uTypia basic, uTypia page,
uTypia Voucher.
Customer: The party
acquiring products in a uTypia solution
TRODAT is represented
by TRODAT GmbH of Wels, holder of all rights under this Agreement.
II.
Support- Duties of the Licensor
The licensor
supports the uTypia solution of the licensee for the duration of the contract..
This support includes:
·
Hosting,
Firewall,regular Back-ups
·
Listing of new Trodat products into
the uTypia solution (except in uTypia page)
·
Support-Hotline +43 (0)
7242/239-340; uTypia@trodat.net for the
Licensee for technical support for Setup and Operation in English and German
Language. Available every day from 09.00 a.m. to
17.00 (05.00 p.m.) GMT+1 Time zone except saturdays, sundays and on Austrian
holidays.
·
Alternative Support
Hotline 001 732 529 8523 uTypia@trodat.net for the Licensee in English language. Available every day from 09.00
a.m. to 16.00 (04.00 p.m.) Eastern Standard Time (EST - GMT-5) except
saturdays, sundays and on US- holidays.
·
On-Site technical
support is not included in the scope of the support duties. On-Site support is
not necessary for normal setup or operation. On-Site Support can be
specifically requested by the Licensee. The Licensee will receive an written
offer of the Licensor for the travel costs, travel and work time charges or
alternatively a fixed price offer. Charges will occur only based on purchase
orders from the Licensee received in writing.
The scope of the support does not include setting up
additional products or Layout templates. Trodat's services are provided at its
own discretion, for fair use and without any obligation to provide specified
capacity or individual technical specifications.
In regards to
uTypia Consumer Next: Magento Standard Features and uC-Next specific extensions
are included in the support. (see Feature List in the Product-Data-Sheet.)
Optional areas within Magento (for example: Landing Pages, Reports, Extended
Product
Descriptions,
etc.) are not included in the support but can be administered by the Shop
Owner. Information can be found in the
Magento Manuals and Youtube Videos.
III.
Payment
The fees are
charged, as agreed in the uTypia License agreement.
The fees may be
changed by the Licensor with advance written notice of 90 days. The fees may
not be increased by more than 15% per year. Increases are in particular
possible due to higher taxes, labor costs, or price increases in the Hosting
services or Software Licenses used.
In case of
payment delay, late-payment interest in the amount permitted by law is hereby
agreed.
If there are
delays in the setup process due to the licensee, the Licensor can invoice the open setup-fee within 6 month of
the contract date; and from then on the minimum and transaction fees.
IV. Internet Address
Every uTypia
solution shall be operated under its own URL (internet address). The Licensee
may choose from among a number of URLs made available by TRODAT.
If another URL
shall be used, the Licensee shall bear the costs for setting up that URL and
for the costs of the domain, as well as indemnify and hold Trodat harmless in
this respect. For uTypia satellite only URLs made available by TRODAT may be
used.
V. Duties of the Licensee
The Licensee
must provide an email address where the order data is send to. If the Licensee
has the right to perform administration tasks, the Licensee must provide for
internet access, email address and up-to-date internet browser. The Licensee is
solely responsible for availability and full functionality of the
infrastructure listed above. The Licensee shall ensure to be attainable on
short term in order to enable any required coordination with Trodat, as well as
to immediately implement any technical measures, cooperation and assistance
services requested by Trodat.
The Licensee
shall keep its login data for accessing the administration area strictly
confident. During login, Trodat may verify, if the provided password is in
accordance with the used account, only.
TRODAT is web
designer and webmaster of the uTypia solution. The Licensee here expressly
consents to having TRODAT modify and adapt the contents of the uTypia solution
as well as further publishing them in order to maintain functioning of uTypia
or to improve or advertise it. TRODAT shall be entitled to install the
Trodat-Logo and also the uTypia Logo on the uTypia solution of the Licensee.
This will be limited to the top banner and the footer section. The Licensee
shall not have any access to webpage design. TRODAT shall announce intended
modifications by email 5 days in advance. The Licensee shall not be entitled to
request any graphical or technical shop design or any specified development or
upgrade.
The Licensee
shall be solely responsible for any provided content, like logos or terms and
conditions, as well as to comply with the legal framework applicable to the
operation of the shop, in particular the implementation of information duties
according to e-commerce and distance selling provisions.
Trodat provides
the Licensee with the technical infrastructure, only, and shall not become
party of any contract concluded between the Licensee and its customers via the
shop. Thus, performance of any orders, in particular the delivery of goods and
billing is at the Licensee's sole discretion.
The Licensee is
aware of the precise contents of the uTypia solution (not yet adapted to the
Licensee's specifications). The Licensee hereby declares its express agreement
with the content of the uTypia solution, as well as the technical standards and
specifications, including the firewall and availability. The Licensee hereby
accepts that the shop is provided "as is" without any warranties.
VI. Duration and Termination
This
Agreement shall be concluded for an unlimited term. This Agreement can be
ordinary terminated by both parties at any time in writing or via email with
6 months advance notice before date of termination. In case of termination
by the Licensee, no reimbursement of amounts already paid shall apply (e.g.
uTypia basic fee).
Notwithstanding
the agreed duration of this Agreement, the Licensor shall be entitled to
terminate the agreement with immediate effect without giving rise to
compensation claims by the Licensee
-
if the other party’s assets are
subject to composition proceedings or
-
if application for bankruptcy has
been dismissed for want of sufficient assets;
-
at the Licensor's sole discretion,
in particular if the Licensee infringes any rights derived from intellectual
property, e.g. due to any provided content or used domains, as well as if third
parties assert claims against the Licensor;
-
at the Licensor's sole discretion,
if the Licensee breaches material provisions of this Agreement or uses
Licensor's content against the provisions of this Agreement or infringes
Licensor's intellectual property;
-
or if despite corresponding written
warning and the setting of a 14-day second deadline fees owed have not been
paid.
Upon
effective termination of the Agreement, for whatever reason that may occur,
TRODAT shall no longer be obligated to forward any eventual orders placed via
them with the Licensee. TRODAT shall not be liable for any loss of data or
customers in this connection.
VII. Confidentiality
The Licensor
hereby states on behalf of TRODAT as well that no use shall be made of
confidential information, customer names, telephone numbers or contact persons
received by the Licensee's customers for their own business purposes. Thus, the
Licensor shall merely be the Licensee's data processor according to Sec 10
and 11 Austrian Data Protection Act.
For solution of technical problems connected with uTypia, TRODAT shall
be entitled to have access to such information. The Licensee hereby takes note
of the fact that TRODAT monitors the uTypia solution for the purpose of
generating data analysis, buyer behaviour and improvements on uTypia and
evaluates information such as site hits and link-stream data in an anonymous
manner. The Licensee shall be solely responsible for obtaining any required
consent declaration by data subjects or approvals by the competent data
protection authorities, as well as for preparing all necessary steps to enable
data transfer to Licensor as its data processor.
The Parties
hereby agree that all information brought to their knowledge by the other
party, and thus relating to the latter’s company, in connection with the use of
the facilities covered by this Agreement shall be treated in confidence and may
not be disclosed to third parties without the consent of the party concerned. Information
which is generally known or disclosed to the party in question by third parties
shall not be affected hereby.
The Licensee
agrees to be named as a reference customer by TRODAT.
VIII. Limited Warranty and Liability
The Licensee
hereby expressly accepts that the Licensor is not obliged to provide any
technical specification or specified capacity and that thus technical outage of
the system, as well as delay in data transfer and updates, may occur. Thus,
unlimited availability of uTypia Solution is not agreed and the Licensor
assumes no responsibility for any outage, delays, incompleteness, transmission
errors or any other errors arising during the use of uTypia Solution as well as
any financial consequences deriving thereof. The Licensor is liable for damages
caused by intent and gross negligence, only, which has to be proved by the
Licensee. In case of gross negligence, the Licensor's liability shall be
limited to the amount for the most recently paid annual fee or, in the first
year, to the amount of the setup fee. The Licensee is aware of the technical
risks and limitations of the internet. It shall also bear liability for proper
functioning of data transmission wiring where the latter are connected with its
equipment.
Notice is
hereby expressly given that due to the public nature of the internet, the to
some extent non-encrypted transmission of the data belonging to the Licensee
and the latter’s customers occurs at Licensee's own risk. TRODAT shall not be
liable for security, completeness, timeliness or accuracy of transmission of
data or other information via uTypia Solution.
This shall not
establish any contractual relationship between the Licensee's customers and
TRODAT. The Licensee shall indemnify and hold TRODAT harmless against all
claims raised by the customer, as well as any claims by third parties,
authorities or courts that may be raised against TRODAT due to the Licensee's
provided content, used domain or breach of legal provisions during the use of
the shop.
IX. Intellectual Property
The Licensee
hereby accepts that TRODAT shall be exclusively entitled to all provided
content, documents, brands, designations, domain names, trade names, IP
numbers, internet design, software and other creations within the meaning of
copyright law, thus all rights subsumed under the umbrella concept of
intellectual property rights. The Licensee shall be granted a non-exclusive
right to use the above mentioned intellectual property according to the
provisions of this Agreement and for its duration, only. Any transfer of rights
or use for other purposes not defined in this Agreement is explicitly
prohibited. The Licensee shall therefore be obligated to take such rights into
account and to immediately notify TRODAT of any infringement thereof. Only with
separate authorisation from TRODAT shall the Licensee be entitled to take
action on its own behalf against infringements. This notwithstanding, the
Licensee shall be obligated to provide any support requested by TRODAT in
prosecution of any eventual infringements, including beyond the duration of
this Agreement. The Licensee shall make available, if so requested, any
eventual documents and affidavit in support of TRODAT or its contractual
partners.
TRODAT provides
- depending on the licensed uTypia product – fonts to create layouts within
uTypia. TRODAT takes responsibility for the correct licensing of these provided
fonts. Any other fonts require a separate agreement.
Fo
nts from the
“uTypia Font pool” are provided free of charge. The licensed uTypia product determines
how many fonts are available. The fonts are provided according to their
corresponding license agreements. The detailed license terms and intellectual
property information are provided in the uTypia shop administration area and
hereby accepted by the Licensee. The Licensee shall indemnify and hold TRODAT
harmless against all claims arising from any breach of these license terms.
X. Miscellaneous
Amendments and supplements to this Agreement must be in writing. The
same shall also apply to any deviation from this form requirement. No ancillary
verbal understandings have been reached.
Any notice via email shall be qualified as in writing, in case it is
sent to the Licensee's email address as stated above in Clause V or as
regards the Licensor to uTypia@trodat.net or any subsequent
email address disclosed by the parties.
The terms of this Agreement shall apply to any further purchase of
uTypia products and/or uTypia add-ons from Trodat by the Licensee.
The mere failure to press claim to any right shall not signify any
waiver thereof; any waiver must be expressly stated.
The Licensor shall be entitled to transfer its rights and duties arising
from this Agreement to any third party with discharging effect. In this case,
the Licensor will inform the Licensee in writing.
Should a provision of this Agreement be void, rescinded or
unenforceable, in full or in part, then this shall have no impact on the other
provisions. The Parties shall instead obligate themselves, in lieu of the void
provisions, to agree on a new provision corresponding to the void provision’s
sense and purpose.
This Agreement
shall be exclusively subject to material law of the Republic of Austria with
express exclusion of any CISG applicability as well as any and all principles
on conflicts of law.
All disputes
arising out of or in connection with this Agreement, including disputes
relating to its validity, breach, termination or nullity shall be finally
settled under the Rules of Arbitration of the International Arbitral Centre of
the Austrian Federal Economic Chamber in Vienna (Vienna Rules) by one or more
arbitrators appointed in accordance with the said Rules. The place of
arbitration shall be Vienna, Austria. The language of the arbitral proceedings
shall be German. The Arbitral Tribunal shall decide in the final award which
Party has to bear the costs of the arbitration including the fees of counsel.
All fees
and payments connected with the setting up of this Agreement shall be borne by
the Licensee; the latter shall likewise be liable for taxes and tariffs
resulting from the fulfilment of orders in connection with this Agreement.
The
Licensor shall be entitled to unilaterally amend the General Terms as well as
the Add-on Agreement for Data Processing at any time upon prior notice. The
amended General Terms as well as the Add-on Agreement for Data Processing shall
be provided to the Licensee at least 14 days before the entry into force.
If the Licensee does not object to the amended General Terms or the Add-on
Agreement for Data Processing within 14 days in writing by registered
mail, the new General Terms or the Add-on Agreement for Data Processing shall
apply. If the Licensee does object in time, the former General Terms or the
former Add-on Agreement for Data Processing shall still be valid. However, in
the latter case, the Licensor is entitled to terminate the Agreement for good
cause within 14 days upon receipt of the Licensee's objection.
The Parties
hereby agree that this Agreement shall only take effect upon being signed.
There shall be no mutual obligation prior to that.