Terms & Conditions

Terms & Conditions

General Terms and Conditions of grammm GmbH, Donau-City-Str. 7, 1220 Vienna for Software and Maintenance Services.

Applicable to the products, support and services of grammm GmbH.

1. Definitions

grammm
The company grammm GmbH

grammm Basic
The software developed by grammm GmbH with the included “Basic” support subscription package.

grammm Plus
The software developed by grammm GmbH with the included “Plus” support subscription package.

grammm Business
The software developed by grammm GmbH with the included “Business” support subscription package.

grammm Enterprise
The software developed by grammm GmbH with the included “Enterprise” support subscription package.

Training
Training is that measure which enables users of software from grammm to operate and run the software optimally.

Software
The grammm products subscribed to by the customer at grammm.

Support
Support means that assistance (depending on the support package) over the phone, by email, or via remote maintenance that enables the customer to resolve a current problem and continue working.

Support Services
Individual services ordered from grammm for support.

Maintenance
Maintenance are the programming services offered by grammm and contractually determined, which are the prerequisite for updating the software to legal and software technical innovations.

2. Validity and subject matter of the contract

2.1 All offers made by grammm are in principle subject to confirmation and are to be signed by the customer. The contract for the provision of service and maintenance services shall be deemed to have been concluded when grammm has sent the customer a written order confirmation to the signed offer. Terms and conditions of the offer amended by the customer shall not become part of the contract unless they are expressly confirmed by grammm in the order confirmation or otherwise in writing. Terms and conditions of purchase of the customer shall generally not be accepted by grammm and shall only apply if grammm expressly confirms their validity in writing in advance. Likewise, amendments to the contract, cancellations and other agreements require the express written confirmation of grammm in order to be effective.

2.2 The services agreed with the customer result from the offer, which specifies the respective service category or the other software support services. The service categories grammm Basic, grammm Plus, grammm Business and grammm Enterprise are described conclusively in Annex Number 1 to these GTC. Other Software Support Services are defined according to individual orders by the Customer.

2.3 It is clarified that all services refer to one unit of the software package developed by grammm and used by the customer on the equipment installed at the customer.

2.4 The contracting parties agree that services which are not explicitly mentioned in the Annex number 1 in the respective service category are not included in the subject matter of the contract and are therefore not owed. For the avoidance of doubt it is stated that in particular the following services are not included in any of the service categories:

  • Conversion of the software to another hardware system*
  • Creation of individual programs*
  • Training on the phone and remote maintenance*
  • Extension of the software according to the special wishes and requirements of the customer*
  • Support and information on software and hardware not licensed from grammm*
  • Removal of malfunctions and damage caused by improper handling on the part of the customer, in particular by unauthorized modifications to the software, by the actions of third parties or by force majeure*
  • Removal of malfunctions and damage caused by environmental conditions at the location of the customer’s hardware, by errors or non-performance of the power supply, by defective hardware or other effects for which grammm is not responsible*
  • Removal of computer viruses, malware, Trojans or other malicious software*

* These services can be ordered from grammm for a fee.

3. Voraussetzungen für eine Wartung und Pflichten des Kunden

3.1 The customer is subject to the following obligations to cooperate and other obligations, which are prerequisites for the provision of services by grammm:

3.1.1 Within the scope of the grammm Basic, grammm Plus, grammm Business and grammm Enterprise products, the customer shall be provided with the latest software version in each case. All services of this contract refer to this latest version of the software. No services shall be provided for previous versions of the Software.

3.1.2 The customer must have an Internet connection that meets the technical standards (minimum speed “ADSL”) at the time the service is provided, insofar as the customer wishes to make use of corresponding remote support within the scope of the support offer.

3.1.3 Remote support software recommended by grammm shall be installed by the customer at his own expense after first request by grammm.

3.1.4 Error reports shall be submitted in writing to [email protected] or verbally to the support hotline of the respective geographically nearest location. The current contact information can be found on the website https://grammm.com. The customer shall report errors without delay and shall provide grammm with comprehensive support in troubleshooting and error correction. This includes, in particular, providing grammm with a comprehensible description of the error and, at grammm’s first request, providing or transmitting other data (e.g. screenshots) and logs (e.g. error logs).

3.1.5 The customer shall appoint a system manager who shall be grammm’s contact person in all matters relating to the performance of this contract. The customer shall ensure that the system representative is knowledgeable and can make decisions relating to this contract himself or arrange for them to be made in a timely manner. By proxy, Customer may appoint a deputy with system responsibility, such as an officially accredited grammm Partner.

3.1.6 Troubleshooting shall be carried out within the framework of the support options provided, depending on the support level completed. The customer shall ensure that a remote maintenance access secured according to the respective state of the Article is set up and is available to grammm at least during maintenance times. Furthermore, the customer shall keep the technical facilities required for the performance of the maintenance work, such as power supply, telephone connection and data transmission services, ready for operation and shall make them available to grammm free of charge to a reasonable extent.

3.1.7 It is the Customer’s responsibility to perform and check regular data backups, and to properly maintain and service the system environment of the Software.

4. Remuneration, Payment and Default and Value Protection

4.1 grammm shall receive the remuneration specified in the offer for its services to be rendered under this contract, to which the statutory value added tax shall be added, if applicable, in accordance with the current legislation. Costs for travel, daily and overnight allowances shall be invoiced to the customer separately according to the respective valid rates. Travel times shall be deemed to be working time.

4.2 Payments by the customer shall only be deemed to have been made upon receipt into grammm’s business account. Any difficulties in transferring invoice amounts shall be borne by the customer. It is exclusively reserved to grammm to which of several claims incoming payments will be credited. Within the same claim, the incoming amounts shall first be credited to costs of an (extra-)judicial set-off, then to interest and finally to principal.

4.3 In the case of orders comprising several units (e.g. programs and/or training, realizations in partial steps), grammm shall be entitled to invoice after delivery of each individual unit or service.

4.4 The remuneration shall be invoiced at the beginning of each contractual year and shall be due net upon receipt of the invoice or according to the printed condition. Insofar as partial payments are agreed, in the event of default on one partial payment, the remaining partial payments shall become due immediately (loss of date).

4.5 If the customer defaults on payment of the fee, grammm shall be released from the obligation to provide its services. grammm shall furthermore be entitled to postpone or withhold its own services. In the event of non-compliance with a reasonable grace period, grammm is entitled to withdraw from the contract and thus cease all activities associated with the subscription or alternative services. In addition, grammm shall be entitled to demand interest on arrears in the amount of 12% p.a.

5. Contract duration and termination

5.1 The subscription relationship underlying the order is concluded for a definite period of time and may be terminated in writing by either of the contracting parties at the end of each contractual year subject to a 4-week notice period. The right of the contracting parties to terminate the contractual relationship prematurely for good cause remains unaffected. Important reasons are in particular:

  • if insolvency proceedings are opened against the assets of the other contracting party or insolvency proceedings are rejected for lack of assets to cover costs, insofar as this is permitted by law, i.e. in particular (a) if the termination of the contract would not jeopardize the continuation of the company, (b) in the event of default in the fulfillment of claims that have become due after the opening of insolvency proceedings, (c) in any event after six months from the opening of insolvency proceedings and (d) as soon as notice is given in the insolvency proceedings that the company will not be continued;
  • if the legal framework conditions do not allow the provision of the Software or if the legal framework conditions change in such a way that the provision of the Software would not be possible or legally permissible with economically justifiable effort;
  • if a contracting party violates a material obligation (e.g. obligation to pay the fee) arising from these GTC or other agreements and does not restore the condition in breach of contract within a reasonable period of at least 10 working days despite a warning and a written extension;
  • if the customer does not comply with his obligations to cooperate in accordance with point 3. of the GTC;
  • if the termination of the contractual relationship is essential to avert personal or economic disadvantages of grammm;.
  • if the customer becomes the property of a competitor of grammm.

5.2 The assertion of claims for damages as well as other claims against the defaulting contractual partner shall remain at the discretion of the respective other contractual partner in addition to the pronouncement of extraordinary termination.

6 Default and Warranty

6.1 In the case of services, grammm warrants that the provision of the services will be carried out in accordance with the state of the Art, that a high standard of care and quality will be applied in the performance of the contract and that only competent personnel will be employed in the provision of the services. grammm does not make any performance promises or guarantees beyond this (with the exception of the response times for the service packages contained in Annex Number 2).

6.2 Defective deliveries or services shall be notified by the customer in writing within 14 days of knowledge thereof or within 14 days of the time at which the customer should have become aware thereof in the exercise of due diligence or within 14 days of acceptance of the program. Notices of defects shall only be valid if they concern reproducible defects.

6.3 In the event of justified warranty claims, grammm undertakes, at its discretion, to remedy defects in the services or delivery either by improvement or replacement within a reasonable period of time. If two attempts at improvement or replacement fail, the customer may withdraw from the contract, except in the case of insignificant defects. In any case, warranty claims shall become statute-barred after one year from the date of performance of the service.

6.4 The statutory presumption of defects of §924 ABGB is excluded. The burden of proving the existence of a defect at the time of delivery or provision of the service therefore lies with the customer in any case. Any liability of grammm for consequential damage caused by a defect under the title of compensation for damages is excluded.

6.5 Costs for assistance, fault diagnosis as well as fault and malfunction elimination for which the customer is responsible shall be carried out by grammm against payment of the respective current hourly fee. grammm shall not assume any liability for faults, malfunctions or damages which are due to changes to the delivery or the the services by the customer himself or by third parties, improper operation, changed operating system components, interfaces and parameters, use of unsuitable organizational means and data carriers, insofar as such are prescribed, abnormal operating conditions (in particular deviations from the installation and storage conditions) as well as transport damage and the like.

6.6 If grammm does not comply with its obligation to remedy defects, or if grammm violates its response obligations pursuant to the SLA (Annex Number 2) more than twice within one calendar quarter, the customer may, after setting a reasonable grace period, terminate the contract extraordinarily and/or entrust a third party with the remedy of defects. The costs for such rectification of defects by a third party may be charged to grammm up to a maximum of the sum of the charged and paid fees of the respective calendar year, however, not exceeding the appropriate fee for this purpose. Any further compensation for damages by grammm shall be excluded.

6.7 Events of force majeure shall entitle grammm to postpone performance by the duration of the hindrance and by a reasonable start-up period. Strikes, lockouts and similar circumstances which make performance significantly more difficult or impossible for grammm shall be deemed equivalent to force majeure.

6.8 The warranty claim shall automatically expire if the customer or third parties have interfered with the software or services have been performed by a third party on the software without grammm’s express written consent.

6.9 By way of clarification, it is stated that no warranty or liability is assumed for software modules not developed by grammm.

6.10 The customer is not entitled to withhold payments due to incomplete (total) delivery, warranty or guarantee claims or complaints. Furthermore, the customer is not entitled to set off any claim to which he may be entitled against grammm, or to assign or pledge any claims to which he may be entitled against grammm to third natural persons or legal entities (prohibition of set-off and assignment).

6.11 Insofar as delivery dates are stated in the offer, grammm shall endeavour to adhere to these as closely as possible for deliveries and the provision of services, but these are non-binding. The customer shall not be entitled to any claims for damages arising from any failure to comply with deadlines and dates.

7. Compensation

7.1 Any liability of grammm arising from or in connection with this contract shall be limited to the fee paid by the customer per damage event in the year of the damage event. Liability for damages caused by slight negligence is excluded entirely. This does not apply to personal injury.

7.2 grammm shall not be liable for any loss of data or any other indirect, incidental or consequential damages including loss of profits, loss of revenue and interest, legal costs.

7.3 In the event of an assertion of claims for damages by the customer against grammm, the burden of proof for the existence of fault lies with the customer.

8. Confidentiality and Data Protection

8.1 The contracting parties are obliged to treat trade and business secrets of the other contracting party, in whatever way they become known, as well as all matters related to the performance of the order, as strictly confidential, this also beyond the termination of the contractual relationship.

8.2 Part of these GTC are the terms and conditions for commissioned processing pursuant to Article 28 of the General Data Protection Regulation (GDPR) contained in Annex No. 3.

9. Intellectual Property Rights

The customer shall receive the same rights to the updated or supplemented software provided to the customer within the scope of maintenance services as to the software provided to the customer by grammm. In case of doubt, the customer shall receive a non-exclusive simple right to use the software for all software versions and software components, limited in time to the duration of the license agreement (agreement for the provision of the software) for the contractually defined number of users, whereby the granting of sublicenses, the processing, duplication, making available as well as other distribution of the software is expressly prohibited.

10. Miscellaneous

10.1 The contractual relationship underlying the order is subject to Austrian law. The exclusive place of jurisdiction shall be the competent court for the 22nd district of Vienna.

10.2 All changes or amendments to the contractual relationship must be made in writing. Subsidiary agreements do not exist. These require the written form just as the cancellation of this written form clause itself. grammm is, however, entitled to amend or supplement these GTC if the amendment or supplement is necessary due to new functions and/or changed legal provisions and the amendment is reasonable taking into account the interests of the customer. Amendments shall be announced at least eight weeks prior to coming into force, with notification of the content of the respective amended provision, by e-mail to the e-mail address provided to grammm. Consent to the announced amendment shall be deemed to have been granted if the customer does not object within four weeks after receipt of the amendment notification, which shall be pointed out to the customer in the amendment notification. In the event of an objection within the deadline, the contractual relationship shall be continued under the previously agreed conditions. grammm reserves the right in this case to terminate the contractual relationship at the next possible time.

10.3 Should individual provisions of this contract prove to be invalid or unenforceable, this shall not affect the validity of the remaining provisions of this contract. In such a case, the invalid or unenforceable provision shall be replaced by a new provision that corresponds to the intended purpose and applies from the beginning of the invalidity. Insofar as provisions are concerned which are essential or cannot otherwise be omitted without jeopardizing the purpose of the contract, the contracting parties undertake to interpret the contract, correct it or replace it by another, effective and feasible provision in such a way that its economic and legal purpose is achieved as far as possible, taking into account the purpose pursued by the invalid provision.

10.4 The appendices to this contract constitute an integral part of the contract.

10.5 Any general terms and conditions or conditions of purchase of the customer shall not apply to the present contractual relationship.


Appendix Number 1 – Service Variants

grammm Basic

  1. Maintenance and support of the software developed by grammm of the module grammm in case of legal and software-technical necessary changes,
  2. as well as the free update possibility to the currently valid program version.

  3. Transfer of software improvements developed exclusively by grammm, as far as they affect the standard version.
  4. Access to the grammm online manual for quick self-help or further training.
  5. Use of the grammm support email address to contact support directly and request assistance.

grammm Plus

  1. Maintenance and support of the software developed by grammm, the modules grammm, grammm meet, and grammm chat in the event of changes required by law and software technology, as well as the free update option to the currently valid program version.
  2. Transfer of software improvements developed exclusively by grammm, as far as they affect the standard version.
  3. Access to the grammm online manual for quick self-help or further training.
  4. Use of the grammm support email address to contact support directly and request assistance.
  5. Access to the grammm support hotline to contact support directly and request assistance.

grammm Business

  1. Maintenance and support of the software developed by grammm, the modules grammm, grammm meet, grammm chat, grammm files, grammm archive and grammm mdm in case of legal and software-technical necessary changes, as well as the free update option to the currently valid program version.
  2. Transfer of software improvements developed exclusively by grammm, as far as they affect the standard version.
  3. Access to the grammm online manual for quick self-help or further training.
  4. Use of the grammm support email address to contact support directly and request assistance.
  5. Access to the grammm support hotline to contact support directly and request assistance.
  6. Maintenance and support of special environments in terms of high availability, geographically or logically distributed installations, hosting environments or even archive integrations.

grammm Enterprise

  1. Maintenance and support of grammm-developed software, grammm, grammm meet, grammm chat, grammm files, grammm archive and grammm mdm modules for legal and software.
  2. Necessary changes, as well as the free update option to the currently valid program version.
  3. Transfer of software improvements developed exclusively by grammm, as far as they affect the standard version.
  4. Access to the grammm online manual for quick self-help or further training.
  5. Use of the grammm support email address to contact support directly and request assistance.
  6. Access to the grammm support hotline to contact support directly and request assistance.
  7. Maintenance and support of special environments in terms of high availability, geographically or logically distributed installations, hosting environments or even archive integrations.
  8. Use of 24/7 emergency support by means of callback service, even outside support hours.

Appendix number 2 – Service Level Agreement (SLA)

1. Services
The maintenance services serve the continuous and error-free provision of the grammm software and are provided within the framework of the grammm service packages within the grammm support hours, Monday to Friday from 08:00 to 17:00 CET.

2. Service Level

2.1. Error classes
The evaluation and prioritization of errors in the provision of the software (functions according to the offer and product description or usually assumed features are not given) is carried out by the support team according to the criteria listed below.

2.1.1. Priority 1
The error causes the system or service to be unavailable or unavailable for use.

Example of priority 1: The grammm appliance does not boot and accordingly cannot provide its services.

2.1.2. Priority 2
The error causes significant restrictions on use of important functions that cannot be circumvented by appropriate measures for a reasonable period of time that can be expected of the end customer.

Example for priority 2: Emails can neither be sent nor received via grammm.

2.1.3. Priority 3
The bug imposes insignificant usage restrictions on some functions, which can be circumvented by the end user by taking appropriate measures.

Example for priority 3: Logging in to grammm web is not possible.

2.2. Availability
The software is operated at the customer’s site. grammm therefore does not provide any availability guarantees.

2.3 Response times for error messages
The reaction time is the period between the opening of an error message in the ticket system of the licensor and the first qualified measure for error analysis and error correction.

For the avoidance of doubt, it is noted that grammm will make efforts to expedite the resolution of errors, but cannot provide any guarantees as to the duration (fixed time) of error resolution.

– Priority 1: 4 hours response time
– Priority 2: 8 hours response time
– Priority 3: 24 hours response time

3. Error Messages
Error messages shall be reported in writing to [email protected] or verbally to the telephone number provided as part of the license. The customer has to report errors immediately and will support grammm comprehensively in an error search as well as in the elimination of errors. This includes, in particular, providing grammm with a comprehensible description of the error and, at grammm’s first request, providing or transmitting other data (e.g. screenshots) and logs (e.g. error logs).


Annex number 3 – Conditions for commissioned processing pursuant to Article 28 of the General Data Protection Regulation (GDPR)

If there is any processing of personal data of the customer (this may be personal master data, communication data, contract master data, customer history, contract billing and payment data of the customer or contractual partners of the customer) by grammm on behalf of the customer, the following conditions of commissioned data processing pursuant to Article 28 GDPR shall apply:

1. Subject matter and duration of the commissioned processing
1.1 In case of the provision of maintenance and support services by grammm, access to personal data (within the scope of the grammm software) of the customer (as well as customers of the customers) may occur. The use and handling of this data is regulated by the present terms and conditions.
1.2 The duration of the commissioned processing corresponds to the duration of the provision of maintenance and support services by grammm to the customer.

2. Data Processing Instruction
grammm shall not process data processed on its own behalf, but only on the basis of the contract concluded between grammm and the customer or in accordance with documented instructions from the customer, unless grammm is required by law to process data; in such a case, grammm shall notify the customer of such legal requirements prior to processing, unless the law in question prohibits such notification due to an important public interest. grammm shall inform the customer if grammm is of the opinion that an instruction violates legal requirements.

3. Place of data processing
The provision of the contractually agreed data processing shall take place exclusively in a member state of the European Union or in another contracting state of the Agreement on the European Economic Area. Any relocation to a third country requires the prior consent of the customer and may only take place if the specific requirements of Article 44 et seq. GDPR are fulfilled.

4. Technical-organizational Measures
4.1 grammm has to establish security according to Article 28 (3) lit. c, 32 GDPR especially in connection with Article 5 (1), (2) GDPR. (2) GDPR. Overall, the measures to be taken are data security measures and measures to ensure a level of protection appropriate to the risk with regard to confidentiality, integrity, availability and the resilience of the systems. In this context, the state of the Art, the implementation costs and the nature, scope and purposes of the processing as well as the varying likelihood and severity of the risk to the rights and freedoms of natural persons within the meaning of Article 32 (1) of the GDPR must be taken into account.
4.2 The technical and organizational measures are subject to technical progress and further development. In this respect, grammm is permitted to implement alternative adequate measures. In doing so, the security level of the specified measures must not be undercut. Significant changes must be documented.

5. Quality Assurance and other Obligations
5.1 In order to maintain confidentiality in accordance with Article 28 (3) (2) lit. b, 29, 32 (4) GDPR, the following obligations shall apply:

a) grammm shall only use employees in the performance of the work who have been obligated to confidentiality and who have previously been familiarized with the data protection provisions relevant to them. grammm and any person subordinate to grammm who has access to personal data may only process this data in accordance with the customer’s instructions, including the powers granted in this contract, unless they are legally obligated to process it.
b) The implementation of and compliance with all technical and organizational measures required for this contract in accordance with Article 28 (3) (2) lit. c, 32 GDPR.
c) grammm regularly monitors the internal processes as well as the technical and organizational measures to ensure that the processing in its area of responsibility is carried out in accordance with the requirements of applicable data protection law and that the protection of the rights of the data subject is guaranteed.
d) Verifiability of the technical and organizational measures taken vis-à-vis the customer within the scope of his control powers.

6. Subcontracting Relationships
6.1 Subcontracting relationships within the meaning of this provision shall be understood to be those services that relate directly to the provision of the main service. This does not include ancillary services which grammm uses, for example, as telecommunication services, postal/transport services, maintenance and user service or the disposal of data carriers as well as other measures to ensure the confidentiality, availability, integrity and resilience of the hardware and software of data processing systems. grammm is, however, obliged to enter into appropriate and legally compliant contractual agreements as well as control measures to ensure data protection and data security of the customer’s data, even in the case of outsourced ancillary services.
6.2 The complete list of all subcontractors can be found in the Partner section of the Partner Portal at: https://portal.grammm.com/partners. The Customer agrees to a possible commissioning of the subcontractors listed under this link, this under the condition of a contractual agreement in accordance with Article 28 (2) and (4) GDPR.
6.3 The outsourcing to subcontractors or the change of the existing subcontractor are permitted, provided that:
– grammm notifies Customer of such outsourcing to subcontractors a reasonable time in advance in writing or in text form, and
– the customer does not object to the planned outsourcing to grammm in writing or text form by the time of the transfer of the data, and
– a contractual agreement in accordance with Article 28 (2) and (4) GDPR is used as a basis.
6.4 The transfer of personal data of the customer to the subcontractor and the subcontractor’s first activity shall only be permitted once all prerequisites for subcontracting have been met.
6.5 grammm shall be liable to the customer for compliance with the subcontractor’s obligations.

7. Support Services
7.1 grammm shall, taking into account the nature of the processing and the information available to it, assist the customer in complying with the obligations set out in Articles 32 to 36 of the GDPR.
7.2 grammm will, taking into account the nature of the Processing and the information available to it, assist the Customer, where possible, with appropriate technical and organizational measures to enable the Customer to comply with its obligations to respond to requests to exercise the rights of data subjects referred to in Articles 12 to 22 of the GDPR.

8. Control Rights of the Customer
The customer has the right, in agreement with grammm, to carry out inspections or have them carried out by inspectors to be named in individual cases, in order to satisfy himself of grammm’s compliance with this agreement. grammm shall provide the customer with all information required for this.

9. Deletion and return of Personal Data
After completion of the contractually agreed work or earlier upon request by the customer, grammm shall hand over to the customer all documents that have come into its possession, processing and usage results created as well as data files that are related to the contractual relationship or, after prior consent, destroy them in accordance with data protection law, unless grammm has an obligation to store them. Documentation which serves as proof of the orderly and proper data processing and service provision shall be retained by grammm in accordance with the respective retention periods beyond the end of the contract.

10. Remuneration
For services which grammm has to provide in support according to the obligations of this agreement as per Annex 1, grammm shall receive a fee according to the currently valid price list. For services which go beyond the obligations of this agreement according to Annex 1, grammm shall receive a fee which is calculated according to the general hourly rates for IT support services.