Terms & Conditions
1. Scope of application
- Insider Navigation Inc. (hereinafter referred to as “Contractor“) concludes contracts only in writing in reliance on these General Terms and Conditions (hereinafter the “Terms“). The Terms are applicable to all business relationships between the Contractor and the customer (hereinafter referred to as the “Customer“), unless other terms and conditions were agreed in writing before the start of an assignment. Contractor and Customer are hereinafter also referred to as “the Parties”.
- Deviating, contrary or supplementary general terms and conditions of the Customer are applicable only if these were expressly agreed in writing through an instrument signed by both Parties. Contractor shall not be deemed to have acknowledged Customer’s deviating terms and conditions by implied consent, even if Contractor provides an agreed service subject to no reservation after Customer has placed an order.
- Unless the specific offer provides otherwise, Contractor’s offers/cost quotes are non-binding and without engagement.
- Legal declarations of the Parties are valid only if they were issued in writing and bear the authorized signatures of the Parties’ statutory officers or of a representative authorized by these officers in writing. All unilateral declarations the Parties have issued in respect of this contract shall be given in writing (including by e-mail and fax).
3. Software Development Kit
- The Software Development Kit created by Contractor (hereinafter “SDK“) is provided exclusively at the provisions stated herein.
- “SDK” means all technologies developed by the Contractor that are made available to the Customer, including but not limited to those for the implementation of indoor navigation systems and ad-supported cash-back systems in application software for mobile devices (hereinafter referred to as “App“).
- The SDK made available by Contractor shall remain Contractor’s intellectual property. A compensation for development and adaptation costs does not limit Contractor’s right to further use.
- SDK which Contractor makes available to Customer shall not be deemed to have been sold or transferred under any circumstances. Customer is not entitled under any circumstances to the SDK’s source code. Contractor shall remain the unrestricted owner of all rights thereto. Contractor simply grants Contractor a license to these programs as follows:
- Contractor grants Customer a non-exclusive, free license, unlimited in time, to use the SDK only for internal purposes. Customer may only use the SDK, including the data bases and graphic output (including but not limited to images, symbols or fonts), but may not change, reproduce, sell, rent out, lease, lend or make it otherwise available to third parties; it is strictly prohibited for Customer to reverse engineer, decompile, disassemble or otherwise try to discover the source code; all rights not specifically granted pursuant to the above paragraphs shall be reserved.
4. Data collection
- Customer grants Contractor and Contractor’s staff unrestricted and, if necessary, sole access to all premises covered by the scope of SDK ordered by Customer.
5. Design services
- “Design Services means all intellectual creations of the Contractor in connection with the design of the user interface for and the promotion of Apps.
- Neither originals nor reproductions of sketches and final artwork may be changed without Contractor’s express consent. Any full or partial imitation shall be prohibited.
- Contractor transfers to Customer the rights of use necessary for the specific purpose. Unless otherwise agreed, only a simple right of use will be transferred. Even if Contractor has granted an exclusive right of use, Contractor shall remain entitled to use its sketches and reproductions thereof for its own promotional campaigns.
- Rights of use may be transferred to third parties only subject to a written agreement between Contractor and the Customer. Rights of use transfer to the Customer only after any and all sums owed were fully paid.
6. Implementation of SDK
- If Contractor is commissioned with implementing SDK into an existing App of the Customer, Customer shall hold, and shall prove at Contractor’s request, a right to dispose of that app, which includes also the right to make changes.
- Customer shall best possibly support Contractor in connection with the implementation of SDK and shall promptly deliver to the Contractor the necessary documentation, data and materials needed for such implementation.
- Contractor does not warrant for defects of the end product should Customer fail to cooperate as agreed in Section 6.2.
- Customer accepts responsibility to ensure that form and content of materials and data provided to Contractor do not violate legal provisions and that Customer holds the copyrights and exploitation rights in respect of the works provided. Customer will hold harmless and indemnify Contractor for and against any breach of legal provisions, including but not limited to infringements of copyrights, moral rights and media rights.
- Whenever Customer provides data or materials that are subject to third-party rights, Customer warrants to the Contractor that he has the right to such qualified transfer of use and, at Contractor’s request, shall provide appropriate documentary evidence, e.g. in the form of a corresponding copyright agreement. Contractor warrants to Customer that he will utilize such data, software or other documents for work only to execute the specific order.
- Any and all data and materials which Customer provides to Contractor and which are necessary to implement the App shall be delivered in good and processable condition, free domicile and customs duties paid.
- Costs for data transmissions procured by the Customer shall be borne by the Customer. Contractor shall not be obliged to inspect and issue warnings in respect of data delivered or transmitted by the Customer itself or by a third party instructed by the Customer. Contractor shall neither be liable for errors in and in respect of material and data directly or indirectly provided by the Customer, nor for errors in the end product which are due to defective data delivered.
- Contractor shall not be liable for the content of transmitted data. Contractor reserves the right to block certain publicly available services should legal provisions, such as the Austrian Telecommunications Acts or the Data Privacy Act so require.
- Customer may change and process Contractor’s services only with Contractor’s express consent and, should the services be copyrighted, with the consent of the author. Contractor does not warrant for Apps that were later changed by Customer or third parties.
7. Delivery dates, transaction terms
- Indicated delivery times are generally only approximate times, unless fixed dates were explicitly confirmed in writing. Customer’s desired delivery dates are therefore binding only if the Contractor has confirmed them in writing. The delivery period commences on the day on which Contractor possesses a signed acknowledgment of the order and all work documents and materials are clearly, completely and unambiguously available. Compliance with the delivery time requires the Customer to fulfill in due time all duties of cooperation accepted. Contractor shall not be required to observe the agreed time for delivery if an event of force majeure or any other unpredictable impediment within Contractor’s or its sub-suppliers’ control has occurred.
- Should orders comprise several partial projects, Contractor may make partial deliveries and issue partial invoices.
8. Liability and warranty
- Contractor warrants that the services agreed in the written contract are provided professionally and in due time. Contractor is liable for damages, for any reason whatsoever, only in case of intent and gross negligence.
- Customer is obliged to notify defects by written notice to the Contractor pursuant to Section 377 of the Austrian Commercial Code (UGB) within a reasonable period of time, but no later than within eight days after delivery. In case of a complaint, Customer must allow Contractor to investigate the reasons for the reported complaint. Should an investigation show that the defect is beyond Contractor’s control, the costs of that investigation must be borne by the Customer. In the case of warranty, Contractor shall rectify the defect, deliver what is missing or, at its election, make subsequent deliveries. Customer may seek a reduction of the purchase price or withdraw from the contract if Contractor made two unsuccessful attempts to take corrective action within a reasonable grace period granted by the Customer or if any replacement is again inadequate.
- Customer is entitled to seek a reduction of the purchase price or cancel a contract if defects for which Contractor is responsible cannot be rectified. However, Contractor shall only be liable for the net amount agreed for the contract or part of the contract (without postage), the execution of which has given rise to the defect or damage, and for not more than a maximum amount of USD 7,000 (seven thousand US Dollars). To the extent permitted by law, any liability for consequential damage shall be excluded. Contractor is not liable either for minor errors which do not significantly affect either the value or the fitness of the work.
- Contractor’s liability for third-party products or services shall be confined to an assignment of the claims the Contractor is entitled to recover from the supplier. The warranty claims described above enter into effect if the supplier cannot be held liable.
- Contractor shall not be liable for consequential damage or lost profit due to orders not properly executed.
9. Data storage
- Contractor is entitled to make duplicates or copies of the materials made available by Customer and of the data provided for the purpose of the performance of the contract.
- Contractor will hold in trust data of the Customer which were expressly handed over for storage by virtue of a written agreement. Contractor undertakes to have such data available up to six months after the last order was placed or the contract termination date and to deliver such data only to the Customer or to a third party nominated by the Customer in writing. Contractor warrants to the Customer to utilize such data or results of processing only pursuant to the contract. A request to change or delete single or several data can be made only on order of the Customer, an authorized party pursuant to Section 4 (3) of the Austrian Data Privacy Act (DSG), or a third party nominated by him.
- Customer guarantees that he has lawfully received any data transmitted to Contractor for storage and may process (pursuant to Section 4 no. 9 DSG), use (Section 4 no. 8 DSG) and transmit such data to third parties (such as the Contractor) (pursuant to Section 4 no. 12 DSG) pursuant to applicable legal provisions including but not limited to data privacy regulations. Contractor relies upon the correctness of that guarantee. Should that guarantee not be correct, Customer shall hold harmless and indemnify the Contractor for and against any resulting disadvantages.
- Contractor may bill all costs connected with verifying and storing such data at agreed rates. Failing an agreement, customary hourly rates shall apply (Annex ./1). The agreed data storage obligation expires if the Customer does not pay the related costs within eight weeks after billing.
- Other than that, Contractor is not obliged to store any data whatsoever, including data provided to the Contractor for non-recurring processing (e.g. for mailings).
10. Term, termination and penalty
- Unless expressly agreed otherwise, the contracts concluded between Contractor and Customer concerning continuous obligations shall be deemed to have been made for an indefinite time. Contracts concluded for an indefinite time can be terminated by either Party giving six months’ written notice at the end of each half calendar year (ordinary termination).
- Should the contractual relationship between Contractor and Customer be an obligation to render a specific performance, it will always end once Customer has accepted the contractually agreed service from Contractor.
- The Parties may terminate a contract for good cause; Contractor may terminate a contract for good cause if Customer does not fulfill its payment obligations in spite of a reminder within a 14-day grace period or breaches other material provisions of the contract (including provisions of these Terms). Both Parties are also entitled to give extraordinary notice of termination if insolvency proceedings are opened in respect of the other Party’s assets or if a request to open insolvency proceedings is rejected for lack of assets to cover the costs, or if the respective other Party is permanently unable to fulfill its service obligations. Notice of extraordinary termination must be given by registered letter which explains the reason for termination.
- Contractor is entitled to payment of a penalty if Customer commits a serious breach of contract (including the provisions of these Terms), hence if Customer is delay with delivering materials or data which Contractor needs to perform the contract (Section 5.2. of these Terms) in spite of a reminder within a 14-day grace period, and if Customer cancels an order already placed for any reason whatsoever. That penalty amounts to 75 % of the compensation which accrues or would accrue until the next possible ordinary contract termination date (expiry date of a fixed-term contract or date of ordinary termination of an unlimited contract in compliance with termination periods and termination dates). Contractor’s right to recover that penalty does not affect any other rights, such as the right to extraordinary notice of termination or compensation of damage, to which Contractor is entitled.
11. Invoicing and compensation
- The prices stated in the order confirmation or, if no separate order confirmation was issued, those stated in offers/cost quotes or hourly rates shall be decisive (Annex ./1).
- All prices are net prices denominated in US Dollars, exclusive of statutory value added tax, due for payment immediately after receipt of an invoice, unless otherwise agreed in writing. Unless Section 6. of these Terms provides otherwise, labour and material is invoiced after the Customer has accepted Contractor’s contractually agreed service. Late payments are subject to default interest at a rate of 8 % above the base interest rate. Furthermore, Customer shall reimburse the costs for appropriate legal action (costs for intervention, legal and court fees etc) to Contractor.
- Contractor has a right of retention pursuant to Section 369 of the Commercial Code.
12. Data secrecy, confidentiality and reference
- Contractor warrants to observe the data secrecy pursuant to the Austrian Data Privacy Act (DSG).
- Contractor is obliged to keep confidential any information and documents received in connection with the contractual relationship which are marked as confidential or could constitute Customer’s business or trade secrets in other circumstances, and Contractor shall neither record, nor disclose or exploit these, unless this is necessary to achieve the purpose of the contract. This applies in particular to any ideas and concepts Contractor becomes aware of during the development phase or cooperation. Contractor shall reach adequate contractual agreements with its employees and/or subcontractors to ensure that they do not use for themselves and/or make unauthorized records of and/or pass on these business and trade secrets.
- It is explicitly stated that Customer agrees that Contractor is allowed to name Customer as a reference, unless the confidentiality obligation pursuant to Section 11.2 applies. Furthermore, Contractor may use the lettering “INS Insider Navigation Systems GmbH” in a legible form on all products, promotional materials, promotional campaigns and also on all websites created for the Customer without having to pay a separate compensation.
13. Venue and choice of law
- All disputes arising from this contract, including disputes regarding its existence or non-existence, shall be referred to the court having subject-matter jurisdiction at Contractor’s registered office.
- The legal relationships between Contractor and Customer shall be governed by and construed in accordance with Austrian law, to the exclusion of the conflict of law rules of international private law. The Parties expressly agree that the UN Sales Convention shall not be applicable.
14. Final provisions
- The contract and Contractor’s Terms comprise the entire understanding between the Parties. No oral side agreements exist. Side agreements and subsequent amendments or modifications of the contract shall be valid only if Contractor has confirmed these in writing.
- Should any term of the contract or of these Terms be or become invalid, the remaining terms of contracts concluded or of these Terms will not be affected. The entirely or partially invalid term will be replaced by a term that closest reflects the economic success of the invalid term.
- Hourly rates of Insider Navigation Inc. employees: USD 250.00 All prices exclusive of VAT