General Terms and Conditions ("GTC")
1. General terms, scope of application, authorization to modify
XUND Solutions GmbH, Dorotheergasse 10/12a, 1010 Vienna ("XUND") is a medical device manufacturer active in the field of software services. XUND has developed a health assistant that helps end users ("User") better understand symptoms, provides evidence-based feedback on the possible causes, and thus allows them to make informed health decisions. XUND shall provide software services ("Services") as defined below to the respective contractual partner ("Customer").
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 Customer. XUND expressly objects to supplementary or deviating contractual terms, as well as to any terms and conditions of Customer. These shall only apply if they are expressly accepted by XUND in writing.
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 Customer does not place an order.
Express provisions of the corresponding Offer or Order shall take precedence over these GTC.
2. Conclusion of contract
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.
The contract is concluded upon written confirmation of the Offer by the Customer.
3. Scope of Services
XUND has developed and operates a Software as a Medical Device ("SaMD") that enables Users to use a digital health assistant 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 modules are available: a symptom check (analysis of symptoms provided by the User), an illness check (indication of symptoms of an illness queried by the User), a health check and symptom monitoring ("Modules"). Further, XUND offers Add-ons to the Modules as described in Annex 1 ("Add-Ons").
XUND shall provide the Customer with the use of Modules and Add-ons for the digital channels agreed in the Offer ("Services"). The respective data transmission (question-answer) shall be enabled via API calls. The API is a digital interface that enables the integration of all functions of the Service into the ecosystem of the Customer (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.
For the avoidance of doubt, the Customer 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. The Customer shall clearly inform the User that the Service is provided and exclusively operated by XUND and not by the Customer. The provision of the Service to the User and, therefore also, the data processing is carried out solely by XUND.
4. Additional Services
Any additional Services require a separate written Order. The Order is subject to the provisions of this GTC.
The Customer 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.
XUND shall not be obliged to actually accept Orders on additional Services. If no supplementary Order is concluded, the scope of Services and the remuneration to be paid shall remain unchanged.
The Services are provided in the form of an API or an embeddable Web App. XUND provides the Customer with API Documentation (Annex 2). In case the Customer has ordered the provision of the Services in this form, the Customer shall implement the Services according to this API Documentation.
If the implementation of the Service requires additional support, XUND undertakes to assist the Customer upon the Customer's 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 the Customer in advance.
As a manufacturer of a SaMD, 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 API Documentation, 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 the Customer.
6. Acceptance of the Web App
In case the Customer has ordered the provision of Services in form of a Web App, XUND will provide the Customer with a ready-to-use embeddable solution. The Customer shall embed the Web App on its own digital channels. Functionality of the Services shall be checked by the Customer during acceptance ("Acceptance").
The Customer shall carry out the Acceptance test within 2 weeks after the written declaration of readiness for Acceptance by XUND.
After completion of the Acceptance test, the Customer 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 Customer does not report any critical or severe errors ("errors preventing acceptance") within the period agreed in Pt 6.2, Acceptance shall be deemed to have taken place.
In case the Customer 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 the Customer uses the Assistant in live operation even before Acceptance, the Implementation shall also be deemed accepted.
If the Customer reports errors preventing Acceptance within the period agreed in Pt 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
The Customer 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 the Customer, are the exclusive property of XUND. The Customer shall only have the rights to use the Services as defined in these GTC. XUND expressly reserves all other intellectual property rights.
XUND grants the Customer 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 the Customer.
The Customer 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. The Customer is not entitled to XUND's consent.
8. Service Level Agreement
The Parties agree on the Service Level Agreement according to Annex 3.
The Parties agree on the Non-Disclosure Agreement according to Annex 4.
The remuneration for the implementation and use of the Service and the contingent of API calls will be specified in the Offer.
Any API calls made in the course of or for the implementation or technical realization shall not count towards the agreed contingent. The contingent refers purely to API calls made by Users from the website or a native app of the Customer after Acceptance.
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.
If the Customer 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 the Customer's default, XUND shall be entitled to withdraw from all Offers and Orders concluded with the Customer after issuing a reminder and setting a grace period of at least 14 days.
In the event of a 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.
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.
The Client shall be given the opportunity to obtain information on the current number of API calls carried out at any time. For this purpose, XUND shall provide a monitoring system that can be accessed on an ongoing basis. XUND shall inform the Customer about the achievement of the agreed API calls before the end of the current month.
The Customer 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
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.
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.
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.
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 workaround, 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.
The burden of proof for the existence of defects shall be borne by the Customer. The presumption of defectiveness shall be excluded pursuant to Sec 924 Austrian Civil Code.
For all other services that are not subject to Acceptance, the Customer 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. The Customer shall support XUND in eliminating the defect (correction of the defect) and, in particular, shall keep the relevant documents available.
XUND further warrants that, to his knowledge, the Services do not violate third-party rights. Any further liability for claims of third parties shall be excluded.
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. The Customer shall be responsible for proving that damages were caused by XUND intentionally or through gross negligence.
XUND assumes no liability for lost profits, expected but not incurred savings, indirect and consequential damages, or for damages to recorded data.
The Customer 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.
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
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.
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.
Furthermore, with regard to the user data, the Customer undertakes to comply with all data protection requirements, in particular, the information obligations vis-à-vis the User according to Pt 3.4.
16. Final Provisions
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.
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.
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.
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 email, post or fax shall be deemed as written in the sense of these GTC.
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.
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.
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.