General Terms and Conditions
1. General terms, scope of application, authorization to modify
1.1.
XUND Solutions GmbH, Dorotheergasse 10/12a, 1010 Vienna, ("XUND") is a medical device manufacturer active in the field of software services. XUND has developed the Patient Interaction Suite ("Product") to enable end users ("User") to make informed health decisions by providing digital and automated interactions with relevant questions tailored to each stage of the patient journey. XUND shall provide software services ("Services") of its Product as defined below to the respective contractual partner ("Client").
1.2.
These General Terms and Conditions ("GTC") shall apply as amended at the time the Offer is concluded for all Services, including future services, that XUND provides to Client. XUND expressly objects to supplementary or deviating contractual terms, as well as to any terms and conditions of Client. These shall only apply if they are expressly accepted by XUND in writing.
1.3.
Unless otherwise indicated, all Offers of XUND and all cost estimates shall be non-binding. XUND reserves the right to invoice a reasonable fee for cost estimates in the event that the Client does not place an order.
1.4.
Express provisions of the corresponding Offer or Order shall take precedence over these GTC.
2. Conclusion of contract
2.1.
The basis for the contract conclusion is generally the Offer from XUND defining the details of service provision and remuneration ("Offer"). XUND shall be bound by its Offer for 30 days unless otherwise specified in the Offer or evident from the circumstances of the individual case.
2.2.
The contract is concluded upon written confirmation of the Offer by the Client.
3. Scope of Services
3.1.
XUND has developed and operates a Software as a Medical Device ("SaMD") that enables Users to make informed health decisions through the Patient Interaction Suite as described in Annex 1. The Service is developed to be a ready-to-use question and answer system for the User, whereby in particular the following medical modules are available: Symptom Check, Illness Check, Health Check, and Patient Monitoring ("Modules"). Additionally, XUND offers add-on services to the modules as described in Annex 1 ("Add-on services").
3.2.
XUND shall provide Client with the use of Modules and Add-on services for the digital channels agreed in the Offer ("Services"). The respective data transmission (question-answer) shall be enabled via API calls. The Medical API is a digital interface that enables the integration of all functions of the Service into the ecosystem of Client (e.g., website or native apps such as Apple iOS and Google Android) by forwarding the User to the software of XUND via the interface. The interaction with the User takes place solely on the servers of XUND.
3.3.
For the avoidance of doubt, Client merely provides the User with access to the Service. The Service will be operated solely by XUND and is, therefore, the sole responsibility of XUND. Client shall clearly inform the User that the Service is provided and exclusively operated by XUND and not by Client. The provision of the Service to the User, and therefore also the data processing, is carried out solely by XUND.
4. Additional Services
4.1.
Any additional Services require a separate written Order. The Order is subject to the provisions of this GTC.
4.2.
Client shall notify XUND of its need for additional Services. XUND will calculate and announce the corresponding costs within a reasonable period of time. On this basis, the Parties may then conclude the Order at their own discretion.
4.3.
XUND shall not be obliged to actually accept Orders for additional Services. If no supplementary Order is concluded, the scope of Services and the remuneration to be paid shall remain unchanged.
5. Implementation
5.1.
The Services can be provided via 3 layers of interfaces: Medical API, Mobile SDKs, or Web App. XUND provides Client with an Implementation Guideline (Annex 2) for the Medical API and SDK interfaces. In case Client has ordered the provision of the Services in this form, Client shall implement the Services according to this Implementation Guideline.
5.2.
If the implementation of the Service requires additional support, XUND undertakes to assist Client upon request with all measures that are necessary or appropriate. If the support exceeds basic assistance tasks, XUND is entitled to charge additional remuneration for the support. In this case, XUND will notify Client in advance.
5.3.
As a Software as a Medical Device (SaMD) manufacturer, XUND is obliged to audit and accept the implementation of the Services in order to verify compliance with the medical device provisions. In case the Services have not been implemented in compliance with the Implementation Guidelines, XUND is entitled to suspend the provision of the Services until compliance has been established. XUND shall not be obligated to verify the quality, respectively the absence of errors, nor the accuracy, respectively completeness, of cooperative performances or resources provided by Client.
5.4.
Client shall ensure that the User accepts XUND's T&C prior to using the Service and that the User is provided with XUND's privacy policy for information purposes e.g., by providing a link to these documents. The most current version of these documents from time to time can be found on https://xund.ai/terms-of-use and https://xund.ai/privacy-policy. If Client does not provide the document via a link to the current version, it is Client's responsibility to verify that the documents are up to date. If it is legally required to make available these documents to the Users in another language, it is Client's responsibility to prepare and provide such a translation at its own expense. Client shall fully indemnify and hold XUND harmless in this regard.
6. Acceptance of the Web App
6.1.
In case Client has ordered the provision of Services in the form of a Web App, XUND will provide Client with a ready-to-use embeddable solution. Client shall embed the Web App on its own digital channels. The functionality of the Services shall be checked by Client during acceptance ("Acceptance").
6.2.
Client shall carry out the acceptance test within 2 weeks after written declaration of readiness for acceptance by XUND.
6.3.
After completion of the acceptance test, Client shall notify XUND in writing of any errors occurring, including categorization in accordance with the error categorization of the General Terms and Conditions of the Federal Government for IT Services Software 2020 (Allgemeinen Vertragsbedingungen des Bundes für IT-Leistungen Software 2020 – AVB-IT/SW 2020). If Client does not report any critical or severe errors ("errors preventing acceptance") within the period agreed in Section 6.2, acceptance shall be deemed to have taken place.
6.4.
In case Client reports (only) minor errors, the Services shall be deemed as accepted. XUND shall correct the minor defects without undue delay in life operation, at its own discretion, by eliminating the defects, troubleshooting, installing a work-around, providing a new version, or by demonstrating options for avoiding the consequences of the defect. If Client uses the Product in live operation even before acceptance, the Implementation shall also be deemed accepted.
6.5.
If Client reports errors preventing acceptance within the period agreed in Section 6.2, acceptance shall be deemed to have failed. In this case, XUND shall remedy such errors within a reasonable period of time. After the remedy of all errors, XUND shall again declare readiness for acceptance and thus restart the acceptance procedure.
7. Rights of use
7.1.
Client acknowledges that all rights, in particular, the exclusive exploitation, adaption, and moral rights to all Services and accompanying software programs and documentation provided or made available to Client are the exclusive property of XUND. Client shall only have the rights to use the Services as defined in these GTC. XUND expressly reserves all other intellectual property rights.
7.2.
XUND grants Client the non-exclusive, non-transferable, and non-sublicensable right to use the Service to the extent required for the duration of the Offer. Furthermore, all elements of the Service, such as texts, images, illustrations, as well as design, structure, and database shall remain the sole intellectual property of XUND and shall be subject to copyright protection. Unless XUND expressly agrees in writing, these elements may not be reproduced, sent, made available, presented, performed, modified, translated, or used by Client.
7.3.
Client may only transfer or sublicense its right to use the Service to a third party if XUND has given its written consent to the transfer or sublicensing and the third party has submitted to the usage restrictions. Client is not entitled to XUND's consent.
8. Service Level Agreement
8.1.
The Parties agree on the Service Level Agreement according to Annex 3.
9. Confidentiality
9.1.
The Parties agree on the Non-Disclosure Agreement according to Annex 4. In case the Parties have already agreed on a Non-Disclosure Agreement, the agreement according to Annex 4 shall prevail.
10. Remuneration
10.1.
The remuneration for the implementation and use of the Service will be specified in the Offer.
10.2.
All remuneration shall be understood to be in Euro and excluding taxes, fees and public charges. XUND shall issue a monthly invoice for the Services provided in the previous month. The due date is 14 days from receipt of the invoice.
10.3.
If Client is in default of payment, the statutory default interest of 9.2 percentage points above the base interest rate of the European Central Bank will be charged from the due date. In addition, in case of Client's default XUND shall be entitled to withdraw from all Offers and Orders concluded with Client after issuing a reminder and setting a grace period of at least 14 days.
10.4.
In the event of default of payment, XUND shall be entitled to suspend or withdraw its Services until all arrears have been paid in full. In such a case, XUND shall also be permitted to make the Service unusable for the duration of the delay by means of appropriate technical equipment or settings. XUND shall also be entitled to demand immediate payment for all Services already rendered, regardless of any payment deadlines.
10.5.
XUND shall be entitled to adjust the remuneration in accordance with the price increase of the respective consumer price index (CPI) or an index replacing it once a year within the first three months of the respective following contractual year without triggering a right of objection.
10.6.
Client shall be given the opportunity to obtain information on the current usage (e.g. number of API calls) at any time. For this purpose, XUND provides access to the Client Hub to monitor the usage as described in Annex 1 ("Add-on services").
10.7.
Client may only exercise a right of set-off or retention against XUND in the event of undisputed counterclaims or counterclaims that have been established as final by a court of law.
11. Term and Termination
11.1.
Unless otherwise agreed in the Offer, the contract term shall be one year beginning with the conclusion of the Offer. The term shall be automatically renewed for one additional year unless one of the Parties objects to such renewal in writing three months prior to the end of the original term.
11.2.
Each Party is entitled to terminate the Offer for good cause without prior notice in writing. Good cause shall be deemed to exist in particular
(a) if the respective other Party infringes material obligations under the Offer or this GTC despite a written reminder and the setting of a reasonable grace period and threat of termination;
(b) in case of default of payment after XUND has issued a reminder and set a grace period of at least 14 days according to Pt 10.4.;
(c) in case of loss of certification as a medical device and/or the necessary trade license ("Gewerbeberechtigung") of XUND.
12. Warranty
12.1.
XUND warrants the proper performance of the services in accordance with the Offer and this GTC. The information contained in catalogs, brochures, product descriptions, advertising statements and the like, as well as other written or oral statements shall only be decisive and shall only form part of the subject matter of the contract if the Offer or this GTC expressly declares them to be contractual content.
12.2.
XUND shall remedy any defects without undue delay at its own expense. XUND shall correct the defects, at its own discretion, by eliminating the defects, troubleshooting, installing a work-around, providing a new version, or by demonstrating options for avoiding the consequences of the defect. Price reduction and conversion shall be excluded. Warranty claims may be asserted in court not later than within 6 months from the hand-over of the affected Service.
12.3.
The burden of proof for existence of defects shall be borne by Client. The presumption of defectiveness shall be excluded pursuant to Sec 924 Austrian Civil Code.
12.4.
For all other services that are not subject to Acceptance, Client must inspect them according to Sec 377 et seq Austrian Commercial Code. XUND shall be notified in writing of any defects detected immediately, but no later than five calendar days after transfer/provision of the Service, stating the type and scope of the defect. Hidden defects must be reported in writing without delay, but no later than five calendar days after their discovery. Client shall support XUND in eliminating the defect (correction of the defect) and, in particular, shall keep the relevant documents available.
12.5.
XUND further warrants that, to its knowledge, the Services do not violate third-party rights. Any further liability for claims of third parties shall be excluded.
12.6.
XUND is not obliged to provide updates except for updates expressly agreed to.
13. Liability
13.1.
XUND shall pay damages – except in the case of personal injury, death, or in the event of the applicability of product liability law – only for damages caused intentionally or by gross negligence. Moreover, the liability of XUND is limited to the amount of the agreed annual remuneration. Client shall be responsible for proving that damages were caused by XUND intentionally or through gross negligence.
13.2.
XUND assumes no liability for lost profits, expected but not incurred savings, indirect and consequential damages, or for damages to recorded data.
13.3.
Client shall assert claims for damages not acknowledged in writing by XUND in court within one year after becoming aware of the damage and the party causing the damage, otherwise such claims shall be time-barred.
14. Subcontractors
14.1.
XUND shall be authorized to use subcontractors at its own discretion. XUND shall be liable for such subcontractors as for its own actions.
15. Data Protection
15.1.
It is hereby stated that no personal data of Users is transmitted between the Parties. Both Parties are controllers within the meaning of Art 4 GDPR and, as such, comply with the applicable data protection provisions on their own responsibility.
15.2.
If personal data is exchanged and to the extent legally necessary, the Parties shall conclude a corresponding data processing agreement according to Annex 5 prior to the processing of respective data.
15.3.
Furthermore, with regard to the User data, Client undertakes to comply with all data protection requirements, in particular the information obligations vis-à-vis the Users according to Section 3.3.
16. Final Provisions
16.1.
These GTC, Offer, and Orders concluded on the basis thereof shall be governed exclusively by the substantive law of the Republic of Austria, excluding its conflict of law rules and the UN Convention on Contracts for the International Sale of Goods.
16.2.
The place of jurisdiction for all disputes, including the question of the lawful conclusion of an Offer or Order, shall exclusively be the court having jurisdiction ratione loci and ratione materiae in 1010 Vienna.
16.3.
These GTC and Individual Agreements concluded on the basis thereof shall be governed exclusively by the substantive law of the Republic of Austria, excluding its conflict of law rules and the UN Convention on Contracts for the International Sale of Goods.
16.4.
Amendments and supplements to these GTC or to an Offer or Order must be made in writing; this also applies to a waiver of the written form requirement. Letters sent by e-mail, mail, or fax shall be deemed as written in the sense of these GTC.
16.5.
Unless otherwise agreed in the Offer, each Party shall bear its own costs, expenses, and taxes in connection with the preparation, establishment, and implementation of this contractual relationship, including all and any fees and expenses of its consultants.
16.6.
Except as otherwise expressly provided in the Offer, neither of the rights, claims, or obligations hereunder may be assigned by either Party without the prior written consent of the other Party.
16.7.
Should one or more provisions of the contract be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid provision that comes closest to the economic purpose of the invalid or unenforceable clause.
Annex 1 Description of Service
Annex 2 Implementation Guideline
Annex 3 Service Level Agreement
Annex 4 Non-Disclosure Agreement
Annex 5 Data Processing Agreement