concluded between Novunex GmbH – Völkermarkter Ring 7, 9020 Klagenfurt am Wörthersee in the following, briefly called “Novunex” and the legal entity of the customer in the following, briefly called the “customer”.
Preamble
The Novunex Platform is a so-called low-code software for business process management. It can be used to build digital processes, manage data or digitize organizations in a structured manner. Use cases for the Novunex Platform can be found in all business areas. With the Novunex Platform, you can build processes containing individual form-based steps as well as more complex technical industrial solutions. The Novunex Platform is offered by Novunex as a software-as-a-service (SaaS) or cloud solution. As part of this agreement, Novunex is responsible for the Novunex Platform license, maintenance, and the update of the Novunex Platform solution. Appropriate support shall be agreed upon separately. The customer is responsible for the configuration or special programming based on the platform.
1. Subject matter of contract
1.1. The subject of the contract is the use of the Novunex Platform as a SaaS solution as well as the storage of customer data on servers operated by a third party on Novunex’s behalf for the payment of the agreed fee. Individual extensions and adjustments to the functionality of the Novunex Platform is not part of the scope of services and this SaaS contract and shall be agreed upon separately.
1.2. Novunex provides the customer with access credentials required for the software. Internet access is required to use the software. The transfer point for the SaaS services is the router exit to the Internet of the data center used by Novunex. Novunex provides the customer with the most current version of the Novunex Platform at the router exit of the data center in which the server with the Novunex Platform is located (“transfer point”). The Novunex Platform, the computing power required for the use, and the required storage and data processing space are provided. However, Novunex is not responsible for establishing and maintaining the data connection between the customer’s IT systems and the described transfer point.
2. Support and services
2.1. During the contract period Novunex is available to the customer or an employee of the customer via email or the official ticket system on novunex.com.
3. Availability and maintenance
3.1. The constant availability of SaaS services has a top priority for Novunex. That is why Novunex takes special care to reduce any time windows to a minimum required for maintenance work and updates. However, availability at all times is expressly not guaranteed and is not owed. As far as possible, the necessary maintenance and repair work will be announced, in particular the routine maintenance and repair work. The unavailability of the SaaS services, in particular, due to maintenance and repair work, does not justify a reduction claim. The hardware and the Novunex Platform, and technical infrastructure used by the customer can also influence the services of the provider. As such circumstances have an impact on the availability or functionality of the service provided, they have no effect on the contractual conformity of the service provided.
4. Remuneration
4.1. Novunex receives a regular fee from the customer; the amount, period, and interval depend on the number of users, usage measured in GB and/or ordered add-ons in accordance with the official price list at the time the contract is concluded, available on the official website novunex.com or a respective reseller portal authorized by Novunex.
4.2. The remuneration covered in section 1.2 listed to support and services. Other advisory services, in particular those that go beyond the services listed in section 2, will be charged separately according to the actual occurrence.
4.3. The remuneration is due at the beginning of the contract term. It must be paid to Novunex by bank transfer or SEPA direct debit mandate within 14 days of the invoice being issued. Alternative payment methods are made available through Novunex-authorized reseller portals.
4.4. In the event of late payment, Novunex is entitled to charge default interest of 10% above the base rate of the European Central Bank. In the event of default, the customer is obliged, in addition to the agreed default interest, to reimburse all procedural and extrajudicial costs necessary for the appropriate legal prosecution, including the associated attorney’s costs for the collection of the open fees and expenses. In the event of a delay in payment, Novunex is furthermore entitled to stop fulfilling all contractual obligations until all of the customer’s payment obligations have been met.
5. Customer obligations/conditions of use
5.1. The customer only uses the Novunex Platform in the manner permitted by this contract and not in a way that does not correspond to the conception or documentation.
5.2. The customer is not authorized to use the Novunex Platform beyond the usage permitted in accordance with this SaaS contract in connection with the individual order, to have it used by third parties, or to make it accessible to third parties. The customer is not permitted to reproduce or sell the Novunex Platform or parts of it.
5.3. The customer is not allowed to decompile, reverse engineer, disassemble, reproduce, or use any part of the Novunex Platform to create a separate application or to have this action carried out by third parties, also in accordance with copyright law.
5.3.1. The customer provides Novunex with all documents and other information that are necessary for Novunex to assert claims against third parties, in particular the company names and the names and registered offices / addresses of the third parties.
5.3.2 In the event of serious violations of the customer’s obligations under this legal relationship and repeated violations, Novunex is entitled to temporarily suspend the use of the contractual service and to terminate the contractual relationship for good cause without a period of notice.
Warranty
5.4.1. Errors in the Novunex Platform will be remedied by Novunex free of charge within a reasonable period. A prerequisite for this claim is that the error is reproducible. Novunex can choose to either repair or deliver a replacement to fulfill the warranty obligation. Novunex can provide the customer with a new version of the Novunex Platform to fulfill the warranty obligation. Novunex is also allowed to provide an alternative solution to the faulty functionality that allows the customer to use it in accordance with the contract and to fulfill its warranty.
5.4.2. If a major program error is not remedied by Novunex in accordance with the aforementioned conditions, the customer can request a reduction in the fee. The same applies if the production of the error correction is not possible with reasonable effort. If, during the course of troubleshooting, it turns out that the problems are due to operating errors or improper use by the customer, Novunex can demand appropriate remuneration for the effort incurred.
5.4.3. Warranty claims are excluded.
Liability
5.5.1. Novunex is liable – for whatever legal reason – for damages or reimbursement of futile expenses in accordance with the following provisions:
5.5.2. Outside of the PHG, Novunex’s liability is limited to willful misconduct or gross negligence. Liability for slight negligence, compensation for consequential damage, pecuniary damage, loss of profit, acts of vicarious agents, and for damage from claims by third parties against Novunex are excluded. Liability for data loss is limited to the typical recovery effort if the backup copies have been made regularly and properly.
Third-party rights
5.6.1. Novunex is only liable for a breach of third-party rights caused by its performance insofar as the service is used by the customer in accordance with the contract, in particular in the contractually intended usage environment.
5.6.2. If a third-party claim against the customer that a Novunex service violates their rights, the customer is obliged to notify Novunex immediately. Novunex is entitled, at its discretion, but not obliged, to the extent permitted to ward off the claims made at its expense.
5.6.3 If third-party rights are violated by a Novunex service, Novunex will, at its own discretion and at its own expense, provide the customer with the right to use the service or design the service without infringement of rights or the service with reimbursement of the remuneration paid by the customer (minus reasonable compensation) if Novunex cannot achieve any other remedy with reasonable effort.
5.7. In the event of force majeure, Novunex is entitled to postpone the services under this contract for the duration of the event of force majeure and for a reasonable period of time to prepare for the resumption of the contract service or of the contract as a whole or for the part not rendered due to the event force majeure. Force majeure includes, for example, war, strikes, riots, expropriations, cardinal changes in law, storms, floods, and other natural disasters, as well as other circumstances for which Novunex is not responsible (in particular water ingress, power failure, and interruption or destruction of data-carrying lines).
6. Data protection
6.1. The parties ensure compliance with the applicable data protection regulations and will oblige their employees in connection with the contract and its implementation to maintain data secrecy unless they are already generally obliged to do so.
6.2. The customer may collect, process, or use personal data if they are entitled to do so in accordance with the applicable data protection regulations and, in the event of a violation, release Novunex from third-party claims. Novunex only works in the context of a data processor with regard to such data that is processed on IT systems technically the responsibility of Novunex. If necessary, the parties will conclude a separate data processing agreement that Novunex will provide.
6.3. The customer acknowledges that Novunex uses the Microsoft Azure cloud infrastructure, and the relevant servers are located in the EU. Novunex guarantees that a security policy has been established and TOMs have been set up.
7. Data backup
7.1. The customer is responsible for backing up the data.
8. Copyright, rights of use
8.1. The Novunex Platform is protected by copyright. Novunex owns or, respectively, has usage rights on the copyright, patents, trademark rights, and all other ancillary rights to the Novunex Platform and other objects that Novunex makes available to the customer.
8.2. If Novunex provides new versions, updates, or upgrades of the contract on the Novunex Platform during the term of this contract or individual orders, the above applies accordingly. However, Novunex is not obliged to provide new versions, upgrades or updates unless this is absolutely necessary to remedy the defect or otherwise agreed upon in this contract. In addition, it is expressly agreed that the components of this contract also apply to the Novunex Platform changes.
8.3. Novunex grants the customer a non-exclusive, non-transferable, non-sublicensable right to use the Novunex Platform in the area of the customer’s site for the duration of the contract. The Novunex Platform´s functions and features are accessed via the Internet.
8.4. Usage of the Novunex Platform beyond the defined terms permitted by this contract is not allowed. In particular, the customer is not entitled to let other third parties access the Novunex Platform or to make it accessible to other third parties; in particular, the customer is not permitted to reproduce or sell the Novunex Platform or parts of it. The customer is not entitled to decompile, reverse engineer, disassemble, or use any part of the Novunex Platform to create a separate application or to have these actions performed by third parties unless the copyright law allows it.
8.5. New functions can be made available to the customer as a “Preview Feature”. These features are offered either free of charge or at greatly reduced prices. Novunex assumes no liability for these features, and liability is excluded. “Preview features” could also be removed at any time due to a lack of customer interest without giving reasons.
8.6. Novunex offers certain products as a “trial” or “free trial.” If the customer does not opt for a paid version after the limited trial period, access to the product will be blocked and all associated data will be automatically deleted after 90 days at the latest.
9. Confidentiality
9.1 The parties are obliged to keep secret all information that has become known or becomes known to them about the other party in connection with this SaaS contract, which is marked as confidential or can be identified as business and business secrets based on other circumstances (“confidential information”). The parties are obliged to keep all such information permanently secret, not to pass it on to third parties, to record or otherwise exploit it, unless the other party has expressly consented to the disclosure or use in writing or the information has to be disclosed due to law, court decision or an administrative decision. The rights and obligations under this provision outlast the end of this SaaS contract.
10. Contract period
10.1. The SaaS contractual relationship begins at the time of the order via the official Novunex portal, accessible via novunex.com or via a Novunex-authorized reseller portal. Acceptance is either expressly in writing or implied by providing the access data. The contract is concluded for a defined period based on the offered and ordered form of billing. It is automatically extended by the respective contract term unless the customer quits in writing within the last 3 weeks before expiry.
Notice of termination must be given in writing
10.2.1. At the end of the contract term, the customer is no longer entitled to use the Novunex Platform. Novunex is entitled to irretrievably delete the customer’s data recorded in the context of the Novunex platform after the contract term has expired. The customer is responsible for the continuous backup of their data.
11. Termination of contract
11.1. Each of the parties reserves the right to terminate the contract without notice – after setting a grace period of one week – if one of the other parties significantly violates obligations under this contract. The main reasons for termination are:
– if bankruptcy or reorganization proceedings are opened against the assets of the other party, or
– if they are rejected due to a lack of cost-covering assets, or – if the other party ceases to operate, or
– if the confidentiality obligation is violated.
11.2. The services provided by Novunex are to be replaced by the customer in the event of early termination of the contract.
12. General provisions
12.1 This contract contains all agreements made by the contracting parties in relation to the subject matter of the contract. There are no side agreements. Changes and/or additions must be made in writing to be legally effective. A written form is also required to deviate from this contract.
12.2. Should a section or paragraph, or statement of this contract become invalid, void, or unenforceable, the effectiveness of the remaining contractual provisions will not be affected. The contracting parties shall replace the affected section with an agreement that corresponds to the economic intentions of the contracting parties.
12.3. The place of performance is the location of Novunex GmbH, and Graz (Austria) is the place of jurisdiction. Austrian law applies. The United Nations Convention on Contracts for the International Sale of Goods and the IPRG is excluded.
12.4. Novunex is entitled to use suitable sub-representatives. Novunex is also entitled to transfer all rights and obligations from this contract to a third party. 12.5. The customer can only transfer rights from this contract to third parties with the prior express and written consent of Novunex.
12.6. The customer agrees that his logo, company name, and screenshots of the Novunex Platform can be published for marketing purposes on Novunex homepage and folders indefinitely as a reference.
12.7. Any charges for this contract must be paid by the customer.
The authentic language is German.