Terms and Conditions

This English version is a convenience translation. Only the German version is legally binding.

1. Scope

1.1. These General Terms and Conditions (the "GTC") apply to all business relationships between retail butlers GmbH, Fuchsweg 3/1, 5400 Hallein, Austria (FN 487656 t, Regional Court of Salzburg), hereinafter the "Contractor", and its customers (hereinafter the "Client") concerning the licensing of software, Software-as-a-Service (SaaS) offerings, maintenance, support, training, and consulting, in particular in connection with the SUMWARE POS point-of-sale system.

1.2. These GTC apply exclusively. Deviating, conflicting, or supplementary terms and conditions of the Client do not become part of the contract unless the Contractor expressly agrees to their validity in writing.

1.3. These GTC apply to businesses within the meaning of § 1 KSchG (Austrian Consumer Protection Act) and to legal entities under public law. Where consumer transactions are involved, the mandatory provisions of the KSchG and the FAGG (Austrian Distance and Off-Premises Transactions Act) take precedence; in that case, conflicting clauses of these GTC apply only to the extent that they do not contradict mandatory consumer protection law.

1.4. These GTC also apply to all future business relationships, even if they are not expressly agreed again.

2. Conclusion of Contract

2.1. Unless expressly marked as binding, offers made by the Contractor are subject to change and non-binding. Prices stated on the website, in brochures, or in other marketing materials do not constitute binding offers in the legal sense.

2.2. A contract is formed only upon the Contractor's written order confirmation or upon actual performance of the service. Transmission by email satisfies the written form requirement.

2.3. Unless otherwise agreed, cost estimates are subject to charge (§ 1170a ABGB, Austrian Civil Code) and non-binding. An overrun of up to 15% is deemed approved; the Contractor will notify the Client without delay of any additional costs beyond that.

3. Scope of Services

3.1. The nature and scope of the services to be provided follow from the order confirmation, the quote, or a separate service description. There are no verbal side agreements.

3.2. The Contractor may engage qualified subcontractors to perform the contract. Transferring the entire contractual relationship to a third party requires the Client's consent, unless the transfer occurs as part of a corporate restructuring.

3.3. Unless otherwise agreed, SUMWARE POS is provided in the browser or as a web application. Minimum requirements for the Client's devices and internet connection are set out in the applicable technical documentation.

3.4. Requests by the Client for extensions or changes ("change requests") require a separate order and are billed on a time and materials basis at the Contractor's then-current hourly rates.

4. Rights of Use in Software

4.1. The Contractor grants the Client a non-exclusive, non-transferable right to use SUMWARE POS and any other standard software provided, unlimited in territory and limited in time to the term of the contract. Sublicensing is not permitted.

4.2. The right of use is limited to the agreed number of users, POS stations, locations, or tenants. Any extension requires a separate agreement and remuneration.

4.3. The Client may not copy, modify, decompile, or reverse engineer the software except to the extent permitted by mandatory law (in particular §§ 40d, 40e UrhG, Austrian Copyright Act). Copyright notices, trademarks, and license notices must not be removed or altered.

4.4. All rights in source code, concepts, documentation, graphics, and other work products remain with the Contractor or the respective rights holders. For custom software, unless expressly agreed otherwise in writing, only a right of use (Werknutzungsrecht) within the meaning of the preceding paragraphs is granted; the right of use is not assigned and no exclusive license is granted.

5. SaaS Services, Availability & Maintenance

5.1. Where services are provided as Software-as-a-Service, the Contractor owes the provision of the then-current version of the software over the internet and reasonable service availability.

5.2. The Contractor warrants an average availability of the SaaS service of 98% as an annual mean, measured at the data center's handover point. Excluded are periods of scheduled maintenance and outages caused by force majeure, disruptions outside the Contractor's sphere of influence (in particular the Client's internet connection, power outages, third-party providers), or fault of the Client.

5.3. Scheduled maintenance is carried out during low-usage periods where possible and announced with reasonable notice.

5.4. The Contractor may further develop the feature set, user interface, and technical implementation, provided the overall character of the contractually owed service is not materially changed.

6. Client's Duties to Cooperate

6.1. The Client provides the Contractor, free of charge, with all information, data, and cooperation required for the performance of the services, in due time, in full, and in the agreed form.

6.2. The Client is responsible for the legality and accuracy of the data it submits and undertakes not to process any content that violates applicable law or third-party rights.

6.3. The Client must keep access credentials confidential, protect them against unauthorized access, and inform the Contractor without delay if they are lost or misuse is suspected.

6.4. The Client provides a suitable system environment (hardware, operating system, internet connection, browser, printers, and POS hardware where applicable) and performs regular data backups, unless data backup has been expressly assigned to the Contractor by contract.

6.5. If the Client fails to fulfill its duties to cooperate, or fails to do so in time, agreed performance deadlines are extended accordingly. Any resulting additional effort is billed on a time and materials basis.

7. Prices and Payment Terms

7.1. The prices agreed in the order confirmation or quote apply. Unless stated otherwise, all prices are in euros and exclusive of statutory VAT.

7.2. Recurring fees (license, SaaS, maintenance, or support fees) are invoiced in advance, monthly or annually as agreed. Other services are invoiced after they have been provided.

7.3. Invoices are due for payment without deduction within 14 calendar days of the invoice date. In the event of late payment, default interest at the statutory rate is charged (§ 456 UGB, Austrian Commercial Code, for business transactions); for consumers, the statutory interest rate under § 1000 ABGB (Austrian Civil Code) applies. The Contractor reserves the right to claim further damages, in particular reminder and collection costs.

7.4. In the event of late payment, the Contractor may, after an unsuccessful reminder and a reasonable grace period, suspend further services and block access to the contracted services. Contractually agreed fees remain unaffected.

7.5. Set-off against claims of the Contractor is permitted only with counterclaims that are undisputed or established by final court decision. This does not apply to consumers.

7.6. The Contractor may adjust recurring fees once per year, at the earliest twelve months after conclusion of the contract, in line with changes in the consumer price index (VPI) published by the Austrian central statistical office. Fluctuations of up to 3% are disregarded.

8. Delivery, Deadlines, Acceptance

8.1. Delivery and performance dates are binding only if they have been expressly agreed in writing as fixed dates.

8.2. Where partial services have been agreed, the Contractor may make partial deliveries and issue partial invoices.

8.3. Subsequent changes or extensions requested by the Client extend the delivery period by a reasonable amount.

9. Warranty

9.1. The Contractor warrants that, when used as intended, the software provided materially conforms to the functions documented in the applicable service description. Suitability for a specific purpose deviating from the standard is warranted only if this has been expressly agreed in writing.

9.2. In business-to-business transactions, the warranty period is six months from handover or provision. For consumers, the statutory warranty period of two years applies.

9.3. A Client who is a business must give written notice of discovered defects without delay, at the latest within seven working days of delivery (§ 377 UGB, Austrian Commercial Code). Hidden defects must be notified without delay once they become apparent.

9.4. Warranty claims primarily comprise the right to repair or replacement within a reasonable period. If repair or replacement fails, the Client may demand a price reduction or, unless the defect is minor, rescission of the contract.

9.5. Defects do not include errors attributable to improper handling, interventions by the Client or third parties, an unsuitable system environment, force majeure, or use with hardware or software that has not been approved. The presumption rule of § 924 ABGB (Austrian Civil Code) is excluded vis-a-vis businesses.

9.6. For SaaS services, the Contractor is obliged to remedy reported defects within a reasonable period in accordance with the agreed service levels.

10. Liability

10.1. The Contractor is liable in accordance with statutory provisions for intent and gross negligence. For slight negligence, the Contractor is liable to businesses only in the event of a breach of material contractual obligations (cardinal duties); in that case, liability is limited in amount to the foreseeable damage typical for this type of contract.

10.2. Liability for lost profit, indirect damage, consequential damage caused by defects, damage arising from third-party claims, and loss of data is excluded vis-a-vis businesses unless caused by intent or gross negligence.

10.3. The Contractor's total liability under the contractual relationship vis-a-vis businesses is limited, per damaging event, to the fees actually received in the preceding contract year for the affected service.

10.4. The limitations of liability do not apply to damage resulting from injury to life, body, or health, to claims under the Austrian Product Liability Act, or vis-a-vis consumers to the extent that mandatory statutory provisions provide otherwise.

10.5. Damage claims by businesses become time-barred six months after knowledge of the damage and of the damaging party, and in any event within three years of the damaging conduct.

10.6. The Client is obliged to perform appropriate, state-of-the-art data backups. In the event of damage, the Contractor is liable only for the effort required to restore the data from properly created backup copies.

11. Data Protection

11.1. Both parties undertake to comply with the General Data Protection Regulation (GDPR) and the DSG (Austrian Data Protection Act).

11.2. If the Contractor processes personal data on behalf of the Client in the course of performing the contract, the parties conclude a separate data processing agreement pursuant to Art. 28 GDPR.

11.3. Further information on the processing of personal data by the Contractor as controller can be found in the Privacy Policy.

12. Confidentiality

12.1. The parties undertake to treat all confidential information of the other party that becomes known to them in the course of the business relationship as confidential for an unlimited period, to use it exclusively for the purposes of performing the contract, and not to disclose it to third parties.

12.2. This does not apply to information that is demonstrably in the public domain, was already known to the receiving party before disclosure, or was made available to it by a third party entitled to pass it on, or to information that must be disclosed by law or by order of an authority.

12.3. The Contractor may name the Client for reference purposes (company name, logo, brief project description) unless the Client objects in writing.

13. Term and Termination

13.1. Unless otherwise agreed, continuing obligations (in particular SaaS and maintenance contracts) are concluded for an indefinite period.

13.2. Unless otherwise agreed, either party may terminate the contract ordinarily with three months' notice to the end of a contract year.

13.3. The right to extraordinary termination for good cause remains unaffected. Good cause exists in particular in the event of (a) a payment default by the Client of more than 30 days after a reminder, (b) a material breach of contractual obligations that is not remedied despite a warning and a reasonable grace period, or (c) the opening of insolvency proceedings over the assets of a party or the rejection of such proceedings for lack of assets to cover costs.

13.4. Notices of termination must be in writing. Transmission by email satisfies the written form requirement.

13.5. After the end of the contract, the Contractor makes the Client's data available to the Client within 30 days in a common, machine-readable format. Thereafter, the Contractor is entitled, and upon expiry of statutory retention periods obliged, to delete the data.

14. Force Majeure

Events of force majeure that materially impede or prevent the Contractor's performance (in particular war, unrest, natural disasters, pandemics, official measures, strikes, wide-area power or internet outages, and disruptions at upstream suppliers and cloud providers) entitle the Contractor to postpone performance for the duration of the impediment. If the force majeure lasts longer than three months, either party may withdraw from the contract without this giving rise to damage claims.

15. Right of Withdrawal for Consumers

15.1. For contracts concluded at a distance or off-premises, consumers within the meaning of the KSchG have a right of withdrawal under the provisions of the FAGG. The withdrawal period is 14 days from conclusion of the contract.

15.2. For digital content not supplied on a physical medium and for the provision of services, the right of withdrawal expires early if the consumer has expressly consented to performance beginning before the end of the withdrawal period and has confirmed their knowledge that they thereby lose the right of withdrawal.

15.3. Withdrawal is not subject to any formal requirements; a written declaration to office@retail-butlers.at is sufficient.

16. Online Dispute Resolution

The European Commission provides a platform for online dispute resolution (ODR), available at ec.europa.eu/consumers/odr/. The Contractor is neither obliged nor willing to participate in dispute resolution proceedings before a consumer arbitration board.

17. Final Provisions

17.1. Austrian law applies, excluding its conflict-of-law rules under private international law and the UN Convention on Contracts for the International Sale of Goods (CISG).

17.2. The place of performance for all services is the Contractor's registered office in Hallein.

17.3. The court with subject-matter jurisdiction for 5400 Hallein is agreed as the exclusive place of jurisdiction for all disputes arising from or in connection with this contract. For consumers, § 14 KSchG applies.

17.4. Amendments and supplements to this contract must be made in writing. This also applies to any waiver of this written form requirement itself.

17.5. Should individual provisions of these GTC be or become invalid in whole or in part, the validity of the remaining provisions remains unaffected. The invalid provision is replaced by a valid provision that comes closest to the commercial purpose of the invalid provision.

17.6. The Contractor may amend these GTC with effect for the future. Amendments will be communicated to the Client in text form no later than six weeks before they take effect. If the Client does not object to the amendments within six weeks of receipt of the notice, the amendments are deemed accepted. The Client will be specifically informed of this consequence in the notice.