Last update: 01.06.2016

 

1. APPLICABILITY

 

1.1. These Terms apply to all transactions and the relationship between IKANGAI and Customer, and any services rendered by IKANGAI. Their application is expressly agreed to for all current and subsequent orders by Customer, offers by IKANGAI, and any further business.

 

1.2. By entering into an Agreement with IKANGAI or using any Services, Customer agrees that it has read, understood and accepted these Terms in their entirety.

 

1.3. These Terms apply to all transactions, including B-2-B and B-2-C. Where Customer is a consumer (Verbraucher) within the meaning of the Austrian Consumer Protection Act (KSchG), these Terms shall only apply to the extent they do not violate mandatory law.

 

1.4. Other contracts forms or terms & conditions do not apply and are hereby expressly excluded. The provision of service to Customer does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms. Should, as an exception, the application of the Customer’s terms and conditions be agreed to in writing, they only apply insofar as they do not conflict with these Terms.

 

1.5. These Terms and the Agreement constitute the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, dealings, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Agreement, these Terms shall govern, unless the Agreement expressly states that the terms and conditions of the Agreement shall control.

 

1.6. The Terms may be modified by IKANGAI from time to time. The current version is available on the IKANGAI website www.ikangai.com and a copy available on demand. Customer will be informed about any modification to the Terms one month prior to the effective date. In this event, Customer may terminate the existing Agreement with three months notice; otherwise Customer is deemed to have accepted the modified Terms.

 

2. DEFINITIONS

 

Unless the context otherwise requires, when used herein the following terms shall have the meaning indicated.

 

Agreement: Any agreement to be entered into between Customer including any annexes or schedules, any offer by IKANGAI, and/or order by the Customer.

 

Change Order: Has the meaning set forth in Section 3.7.

 

Confidential Information: Has the meaning set forth in Section 14.

 

Customer: Any natural person or legal entity entering into an Agreement with IKANGAI.

 

Information Provider: Any person or organization that makes data or information available that is processed by IKANGAI or its Services.

 

IKANGAI: IKANGAI GmbH, Rohrbacher Straße 10, 2100 Leobendorf, Austria registered with the company register of the Commercial Court St. Pölten under the registration number FN 410897 k.

 

IKANGAI System: Any components to provide the Customer with Services or components used by the Customer remotely, comprising primarily but not exclusively, software operated by IKANGAI. The IKANGAI System provided to Customer is described in detail in the Agreement.

 

Intellectual Property or Intellectual Property Rights: copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights, in all forms as well as any and all rights in all of the foregoing throughout the world developed and/or brought to bear by IKANGAI.

 

Notice: Has the meaning set forth in Section 16.6.

 

Payment Term: Has the meaning set forth in Section 6.3.

 

Services: The services by IKANGAI as defined in the Agreement that may include, but are not limited to, software development, consulting, implementation, and educational service.

 

Software: The computer programs in all forms and any related documentation and all related Intellectual Property, which IKANGAI retains all right, title and interest in.

 

Terms: These terms and conditions, which form an integral part of each Agreement and contain the main provisions under which IKANGAI is willing to enter into an Agreement.

 

3. SERVICE PROVISION, DELIVERY

 

3.1. IKANGAI shall provide the Services to Customer as described in the Agreement in accordance with these Terms. Unless specifically agreed in the Agreement, IKANGAI does not deliver any user guides, technical documentation, training services or any other supplementary work, or the source, object, or other code of any software developed under the Agreement.

 

3.2. Installation and upgrades for Software provided by IKANGAI will be performed by IKANGAI only if and to the extent agreed between Customer and IKANGAI in writing. These additional services may be charged and invoiced separately. This applies also to modifications that become necessary due to any changes or change requests, such as changes in the execution environment of the Software.

 

3.3. IKANGAI shall use reasonable efforts to meet any performance/delivery dates specified in the Agreement. The performance by IKANGAI is subject to the availability of qualified personnel of IKANGAI, and the time required for the performance of Services and the development of Software cannot be conclusively assessed in advance; consequently, all dates or time quoted with respect to the Services are estimates only and are subject to alteration. Any agreed upon performance/delivery date does not render the Agreement a fixed contract.

 

3.4. If IKANGAI is prevented from complying with its obligations due to an unforeseen occurrence or by circumstances outside of its control or for which it is not responsible, such as e.g. disruptions, acts and interventions by the government, electricity supply problems, strike, blocked transportation routes, or force majeure, irrespective whether these circumstances arise to IKANGAI or a third party, IKANGAI can change the delivery/performance deadlines in its reasonable discretion.

 

3.5. Recognizing the complexity and sophistication of its Services, if IKANGAI does not deliver on time, Customer grants a grace period of no less than eight weeks without further notice and without penalty.

 

3.6. IKANGAI has the right to assign personnel or subcontract third parties, who are, in IKANGAI’s sole discretion, qualified to render the Services.

 

3.7. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. IKANGAI shall, within a reasonable time after such request, provide an estimate to Customer of:

 

the likely time required to implement the change;

any necessary variations to the fees and other charges for the Services arising from the change;

the likely effect of the change on the Services; and

any other impact the change might have on the performance of the Agreement.

Promptly after receipt of the estimate, the parties shall negotiate and agree in writing on the terms of such change (a Change Order). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 16.5.

 

>Notwithstanding the above, IKANGAI may, from time to time change the Services without the consent of Customer provided that such changes do not materially and adversely affect the nature or scope of the Services, or the fees or any performance dates set forth in the Agreement.

 

KANGAI may charge for the time it spends assessing and documenting a change request from Customer on a time and material basis in accordance with the Order Confirmation.

 

3.8. IKANGAI reserves the right to expand, modify, or improve its Services, including without limitation software designed, developed, implemented, operated or hosted, each without Customer’s consent.

 

3.9. The Services or parts thereof shall be deemed delivered once they are offered for acceptance to the Customer, whether they are reasonably made available for pick-up or delivered to Customer (whether handed over or otherwise attempted to deliver at the Customer’s premises or last known location, including without limitation by electronic means).

 

4. CUSTOMER RESPONSIBILITIES

 

4.1. Customer shall:

 

cooperate with IKANGAI in all matters relating to the Services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by IKANGAI, for the purposes of performing the Services;

provide in a timely manner and at its own expenses all such documentation, information, data, (test) infrastructure, contact persons, equipment and any other information as may be reasonably required by IKANGAI for the purposes of performing the Services;

provide a coordinator familiar with and knowledgeable in the system environment, business and procedures of Customer, who has authority to make definite decisions relating to the Services. Customer shall further provide sufficient computer time and such other physical and human resources as may be reasonably required by IKANGAI in connection with Services;

respond promptly to any IKANGAI request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for IKANGAI to perform Services in accordance with the requirements of the Agreement;

obtain and maintain all necessary licences and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start; and

without delay inform IKANGAI on any change in data needed in connection with rendering and invoicing the Services (e.g. modification of name, address, credit card number, credit card expiration, etc.). If Customer is a legal entity, Customer shall also inform IKANGAI in writing of any relevant change in the company (e.g. name, address, or legal form, change of control).

4.2. If the performance of the Agreement is not possible, IKANGAI will provide a notice to Customer stating the support required from Customer as well as an adequate time period for providing the requested support. If the support is not provided by Customer within the set time period, IKANGAI is entitled to terminate the Agreement with immediate effect. In this case, IKANGAI is entitled to charge the total price agreed upon in the Agreement. Damages, costs and expenses caused by the lack of support on part of Customer shall be borne by Customer.

 

4.3. If IKANGAI’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, IKANGAI shall not be deemed in breach of its obligations under the Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

 

4.4. Customer is responsible for the use of the Services. Customer must not disclose the username, password, and any other information required for the Customer identification to any third party and ensure that they are kept strictly confidential.

 

4.5. Customer represents and warrants that

 

a) any materials provided to IKANGAI or Customer’s instructions to perform the Services do not violate any applicable laws (e.g. privacy laws, telecommunication laws) and do not infringe the rights vested in third parties (e.g. copyrights);

it will use the Software and Services in compliance with all applicable laws, including local laws of the country or region in which Customer resides, which Customer downloads or uses the Software and Services, or the laws of which otherwise apply to Customer.

4.6. Any damages resulting from a breach of the Customer’s obligations shall be borne by Customer and Customer shall hold IKANGAI harmless from any third party claims; any liability of IKANGAI for damages caused by breach of Customer’s obligations is excluded to the fullest extent permitted by law.

 

1. CUSTOMER’S ACTS OR OMISSIONS

 

If IKANGAI’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, IKANGAI shall not be deemed in breach of its obligations under the Agreement or otherwise liable for any costs, expenses, charges or losses, including without limitation, attorneys’ fees, sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

 

6. PRICES AND SUBSCRIPTION FEES / PAYMENT CONDITIONS, TAXES

 

6.1. Prices and subscription fees shall be determined in the Agreement on an individual basis, in the absence of which a reasonable and customary fee is agreed to. Unless otherwise agreed to in an Agreement, IKANGAI is entitled to invoice in advance. Customer agrees to reimburse IKANGAI for all travel and out-of-pocket expenses incurred by IKANGAI in connection with the performance of the Services.

 

6.2. If payment is effected via bank transfer, direct debit mandate, credit card or other electronic means, Customer will ensure that the invoiced amount shall be transferred to IKANGAI’s bank account free of charge and within the Payment Term.

 

6.3. Any amounts payable to IKANGAI are due in full within fourteen (14) days upon receipt of the invoice (Payment Term). In the event payment is not received by IKANGAI when due, IKANGAI may charge interest on any such unpaid amounts at a rate of fifteen percent (15%) per annum or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and suspend performance for all Services until payment has been made in full. Additionally, Customer shall reimburse IKANGAI for all costs resulting from the late payment, the cost of notices and collection required for enforcing its rights, as well as costs incurred by IKANGAI for seeking legal advice. Immediately after the Payment Term without payment in full, IKANGAI shall be entitled to disconnect Customer from the Services with immediate effect.

 

6.4. If IKANGAI does not receive written notice of a complaint regarding the invoice within the Payment Term, Customer is deemed to have acknowledged and accepted the invoice with respect to its cause and the invoiced amount. If Customer complains about invoices on a regular basis without cause, IKANGAI may charge administrative costs of a minimum of EUR 30 (Euro thirty) in each instance.

 

6.5. Customer shall perform its obligations under this Agreement without setoff, netting, deduction, recoupment or withholding of any kind for amounts owed or payable to IKANGAI by Customer whether under the Agreement, applicable law or otherwise, and whether relating to IKANGAI’s breach, bankruptcy or otherwise. Customer has no right of retention.

 

6.6. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder.

 

7. INTELLECTUAL PROPERTY

 

7.1. Unless otherwise agreed to in writing, the Intellectual Property Rights, including, but not limited to, the source, object, and other code of any Software, shall be owned, vest in, and remain with IKANGAI.

 

7.2. Provided that Customer has indefeasably and fully paid all fees under each Agreement, IKANGAI hereby grants Customer a limited, non-exclusive non-transferable, non-sublicenseable license to use and operate the Software in Customer’s designated premises and limited to the type, and quantities of server, concurrent or named user licenses actually purchased. The license is granted for the term set out in the Agreement. The license granted herein shall be required for, and shall be limited to, Customer’s ordinary business. The Customer may not, for any purpose whatsoever, copy, reverse engineer, decompile, disassemble attempt to derive the source code of, decrypt, modify, or create derivative works of the Software or any Services or any part thereof, unless mandatory law requires otherwise.

 

7.3. Any Software delivered to Customer and all Services for Software design, development, implementation, operation or hosting, including all drafts, presentations, concepts, shall remain the sole intellectual property of IKANGAI, unless separately agreed upon in a written Agreement.

 

8. REPRESENTATION AND WARRANTY

 

8.1. IKANGAI represents and warrants to Customer that it shall perform the Services using personnel of reasonably adequate skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally acceptable industry standards for like services and shall devote adequate resources to meet its obligations under the Agreement.

 

8.2. Except for Section 8.1 above, IKANGAI explicitly disclaims all warranty, including without limitation for any Service or Agreement, any (a) warranty of merchantability, (b) warranty of fitness for a particular purpose, (c) warranty of title, (d) warranty against infringement of intellectual property rights of a third party, (e) uninterrupted or error-free Services and availability of appropriate communication links, or (f) compatibility with third party hardware, software, applications or systems, whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise.

 

8.3. IKANGAI shall not be liable for a breach of the warranty set forth in Section 8.1 unless Customer gives written notice of the defective Services, described with reasonable and sufficient accuracy, to IKANGAI within five (5) days after delivery. If such notice is not submitted to IKANGAI in due time, the Software and/or Services are deemed accepted and approved by Customer and all warranty claims are excluded.

 

8.4. Subject to Section 8.3, warranty claims shall only cover repair and replacement claims. Rescission (Wandlung) and price reduction (Preisminderung) are excluded. IKANGAI shall, in its sole discretion, be entitled to repair or replace (or re-perform, if a service) the defect part or the Service. Alternatively, IKANGAI may in its sole discretion elect to credit or refund the price of such Services pro rata.

 

8.5. The remedies set forth in Section 8.4 shall be the Customer’s sole and exclusive remedy and IKANGAI’s entire liability for breach of the limited warranty set forth in Section 8.1.

 

9. LIMITATION OF LIABILITY

 

9.1. To the maximum extent permissible by law, the liability of IKANGAI is explicitly excluded. In no event shall IKANGAI be liable for indirect, special, incidental, exemplary, punitive or consequential damages of any kind or loss of profits or business opportunity, whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damage was foreseeable and whether or not IKANGAI has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

 

9.2. In no event shall IKANGAI’s aggregate liability arising out of or related to these Terms or an Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the aggregate amounts paid or payable to IKANGAI pursuant to the Agreement and limited to the applicable order giving rise to the claim.

 

9.3. To the extent permitted by law, all claims and remedies other than those explicitly provided for in the Agreement or these Terms, are, irrespective of their nature, amount and legal basis, hereby expressly waived and excluded. In particular, but without limitation, Customer shall have no rights of (i) withdrawal (Rücktritt), (ii) rescission (Wandlung), (iii) challenge of the Agreement on the grounds of error (Irrtumsanfechtung) or laesio enormis, or (iv) any other form of reversal or avoidance (Rückabwicklung, Anfechtung), nor any claims against IKANGAI or its representatives, agents and/or advisers as a result of any mistake (Irrtum) or as a result of a breach of any pre-contractual duties (culpa in contrahendo) and/or any liability in tort (Deliktshaftung). The assumption in § 924 of the Austrian Civil Code (ABGB) is excluded.

 

9.4. In no event shall IKANGAI be liable for any acts or omissions of Customer or any third party, in particular, but not limited to, damages resulting from defective compliance, defective instructions or damages attributable to products or services delivered by third parties or Customer.

 

9.5. The substantive and procedural statute of limitations for all claims against IKANGAI is 6 months, such that they lapse substantively and are also procedurally precluded after 6 months upon their occurrence, irrespective of the actual or deemed knowledge of any person.

 

9.6. Nothing herein shall limit either party’s liability for personal injury or death caused by either party’s negligence or other claim which may not be limited under applicable law.

 

10. TERMINATION

 

10.1. The terms of termination shall be agreed upon between the Customer and IKANGAI in the Agreement, in the absence of which IKANGAI is permitted to terminate its Services upon reasonable notice or immediately if technically unavoidable or unfeasible.

 

10.2. Upon Customer’s termination of an Agreement without cause, Customer’s claims vis-à-vis IKANGAI are forfeited, and IKANGAI retains all rights and remedies against Customer.

 

10.3. In addition to any remedies under an Agreement or these Terms, IKANGAI may terminate the Agreement with immediate effect upon written notice to Customer, if Customer:

 

fails to pay any amount when due under the Agreement and such failure continues unremedied for fourteen (14) days after Customer’s receipt of written notice of nonpayment;

has not otherwise performed or complied with any of the terms of the Agreement, in particular, but not limited to its obligations under Section 4, in whole or in part;

becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors;

the Customer dies or Customer’s business is in liquidation or otherwise shall cease to exist;

Customer becomes incapacitated or is without an authorized representative (whether or not an emergency representative is being appointed or not);

technical or operational causes threaten the integrity of the IKANGAI System to any possible extent; or

it becomes impossible or unfeasible for IKANGAI to further render Services to Customer.

10.4. In the event IKANGAI terminates the agreement pursuant to Section 10.3, Customer shall pay IKANGAI all fees payable for Services rendered up to the termination date and any costs, charges or losses sustained or incurred by IKANGAI due to the termination.

 

DATA PROTECTION

 

11.1. The parties agree to treat the technical, commercial and personal affairs of the other party strictly confidentially and not to disclose any information to third parties, unless required by law, by the Agreement, or the Terms, or after having obtained the written consent by the other party.

 

11.2. Customer explicitly consents that IKANGAI is entitled to store user data for settlement and servicing Customer and use the data as required for the purpose of the Agreement. Data shall be processed by computers, and shall not be forwarded without the Customer’s written consent. Data shall be stored temporarily as long as the Customer does not give an order for the deletion of data, or until the respective data must be deleted according to the law.

 

11.3. The personal data acquired by IKANGAI will only be used for the purposes as laid down in the Agreement or these Terms. Personal data shall only be stored for as long as is necessary to achieve the purposes of the Agreement.

 

11.4. IKANGAI shall process the personal data in accordance with the law and in a proper and careful manner. The data shall be used:

 

in order to calculate prices or subscription or licensing fees, and to provide invoices;

for marketing reasons (unless the Customer has objected to the Customer’s personal data being used for this purpose);

for anonymous user statistics; for the analysis of needs and further developments, to develop a system for the processing of personal data of Customers who have been disconnected from the Service due to late payment, or of Customers who have seriously defrauded, or tried to defraud IKANGAI.

11.5. IKANGAI shall take all reasonable technical and organizational measures to protect the personal data of Customers against loss and any form of unlawful use. In cases where a third party in some way gains access to and disposes of, or utilizes data stored by IKANGAI, IKANGAI´s liability is excluded.

 

11.6. Customer explicitly consents that IKANGAI is entitled to forward Customer’s data necessary for credit appraisal or collection to third parties, including solicitors and collection agencies.

 

11.7. Customer explicitly consents to the forwarding of summary data to a mobile telephone or data service provider if the mobile telephone or data service provider requests such summary data from IKANGAI.

 

12. MAINTENANCE AND MALFUNCTIONING

 

12.1. IKANGAI may interrupt the IKANGAI System, in whole or part of it, for maintenance purposes. IKANGAI shall announce this in advance, unless it concerns a short or limited interruption only. IKANGAI shall not be responsible for any damage or loss or other detriment incurred by Customer due to maintenance work, unforeseeable or unusual circumstances beyond the control or influence of IKANGAI, and force majeure circumstances.

 

12.2. IKANGAI may alter the technical characteristics of the Services and/or the IKANGAI System. IKANGAI shall not restrict or shut down the Services without good reason or adequate cause.

 

12.3. IKANGAI cannot be held liable for malfunctions of infrastructure provided by the Customer or third parties that operate IKANGAI systems.

 

INFORMATION PROVIDERS

 

13.1. The information and data provided by the Information Provider is transferred to IKANGAI via interfaces and in a format set by IKANGAI.

 

13.2. Information Providers will regularly verify the correctness and up-to-datedness of information and data provided to IKANGAI and provide only correct and up-to-date information and data to IKANGAI.

 

13.3. IKANGAI is entitled to use and change the information and data provided by the Information Provider at its own discretion without any separate fees.

 

13.4. Information Providers guarantee that the data and information provided to IKANGAI does not violate any applicable laws and does not affect the rights vested in third parties (e.g. copyrights). In cases where the Information Provider violates this obligation, the information provider is fully liable for all damages and loss arising hereof and all damages, costs and expenses caused to IKANGAI or third parties shall be solely borne by the information provider. IKANGAI shall not be responsible for any such data and information provided by the Customer to third parties.

 

14. NON-SOLICITATION

 

14.1. Neither party shall directly or indirectly, solicit, induce to terminate, employment or otherwise entice away, whether directly or indirectly, through another firm or company any employees of the other party and/or enter into any business relationship, on its own behalf or on behalf of a third party, with such other party’s employees or contractor or accept service there from or cause or influence any such employees or contractors, now or in the future, to diminish their dealings with the other party for so long as Customer is actually actively using the Software and Services.

 

14.2. For each case of a breach, Customer shall pay to IKANGAI EUR 100,000 (Euro one hundred thousand) in liquidated damages. The right of IKANGAI to evidence that the actual damages suffered exceed such amount shall remain unaffected. In addition, the right of IKANGAI to file for injunctive relief shall remain unaffected.

 

15.1. All non-public, confidential or proprietary information of IKANGAI, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, Confidential Information), disclosed by IKANGAI to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and the Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of the IKANGAI. Confidential Information does not include information that is: (i) in the public domain; (ii) known to Customer at the time of disclosure; or (iii) rightfully obtained by Customer on a non-confidential basis from a third party.

 

15.2. Customer agrees to use the Confidential Information only to make use of the Services.

 

15.3. Section 14.2 shall apply mutatis mutandis.

 

16. MISCELLANEOUS

 

16.1. Unless otherwise agreed upon, any communication with legal effect with respect to the Agreement and these Terms between IKANGAI and Customer shall be in writing. When observing due dates, the date stamp of a postal office or the date of the receipt acknowledgement shall be authoritative.

 

16.2. Customer shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of IKANGAI. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under the Agreement. In no event shall any assignment expand the scope of any rights granted under the Agreement. IKANGAI shall be entitled to assign, delegate, sub – contract or otherwise transfer the Agreement and any of its rights or obligations hereunder without the consent of Customer.

 

16.3. The failure by any party to exercise any right provided herein shall not be deemed a waiver or forfeiture of any such right.

 

16.4. Should any provision of the Agreement be held to be void, invalid, unenforceable or illegal by a competent authority, the validity and enforceability of the other provisions of the Agreement shall not be affected thereby. If any provision is determined to be fully or partially unenforceable or void, the Parties irrevocably agree herein and upfront to a modification of such provision, such that it becomes enforceable under applicable law and most closely provides for the original provision’s commercial intent. The Parties irrevocably agree that their intention was not for partially or fully unenforceable or void provisions to be disregarded in their entirety by a court of competent jurisdiction.

 

16.5. The Agreement may only be amended or modified in a writing which specifically states that it amends the Agreement and is signed by an authorized representative of each party.

 

16.6. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a Notice) shall be in writing and addressed to the parties at the addresses set forth in Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided herein or in the Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

 

16.7. IKANGAI shall, without limiting and in addition to any other limitiation of IKANGAI’s liability, not be liable or responsible to Customer, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of IKANGAI including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

 

16.8. These Terms and the Agreement shall be construed and enforced in all respects exclusively under the laws of Austria, without reference to conflicts of law rules that would result in the application of any other laws than the laws of Austria. The application of the United Nations Convention on Contracts for the International Sale of Goods is explicitly rejected.

 

16.9. Where Customer is not a consumer, the competent court for the first district in Vienna shall have exclusive jurisdiction to settle any disputes between IKANGAI and Customer. Where Customer is a consumer, the competent court for the first district in Vienna shall be an alternative forum for Customer to settle any disputes between IKANGAI and Customer.

 

16.10. Provisions of these Terms, which by their nature should survive an Agreement or these Terms, will remain in force after any termination or expiration of the Agreement including without limitation the following provisions: Confidentiality, Governing Law and Submission to Jurisdiction and Survival.

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