Terms of Service
1.1. “IKANGAI”: IKANGAI Solutions e.U., Treustrasse 59/5/20, 1200 Vienna, Austria, registered with the company register of the Commercial Court Vienna, registration number FN 326912 d.
1.2. “Customer”: Any natural person or legal entity entering into an agreement with IKANGAI by individual contract for the provision of Services rendered by IKANGAI.
1.3. “Agreement”: Contract agreed upon between the Customer and IKANGAI to provide services to the Customer by IKANGAI, including any related annexes to it. Only Customers entering into an Agreement with IKANGAI are authorized to use services provided by IKANGAI. The costs of preparing the Agreement as well as costs of possible legal representation shall be borne by the parties themselves.
1.4. “General Terms and Conditions”: are an integral part of the Agreement. The General Terms and Conditions contain the main provisions under which IKANGAI enters into Agreements. Whenever the General Terms and Conditions contradict provisions of the Agreement, the provision of the Agreement shall prevail.
1.5. “Services”: Any information, activities, as well as software provided by IKANGAI to the Customer. Subject to clause 3.3 of these General Terms and Conditions IKANGAI only licenses the use of the source code.
1.6. “IKANGAI System”: Any components to provide the Customer with Services or components used by the Customer remotely, comprising primary but not exclusively, software operated by IKANGAI. The IKANGAI System provided to the Customer is described in detail in the Agreement.
2. Validity and general conditions
2.1. These General Terms and Conditions apply to any Agreement unless otherwise explicitly agreed upon between the Customer and IKANGAI. IKANGAI will only enter into Agreements on the basis of these General Terms and Conditions. Customer’s differing terms may only be valid in cases where IKANGAI has agreed to them in writing. By entering into an Agreement with IKANGAI or by using Services, the Customer agrees that she/he has read, understood and accepted these General Terms and Conditions.
2.2. Any additional services rendered by IKANGAI, including but not limited to services pursuant to clause 3.5 of these General Terms and Conditions, these General Terms and Conditions also apply to these additional services, unless otherwise agreed upon in writing.
2.3. The General Terms and Conditions may be modified by IKANGAI occasionally. The current version of the General Terms and Conditions is available on the IKANGAI website (www.ikangai.com) or may be provided to interested parties on demand. The Customer will be informed about modified General Terms and Conditions one month prior to the effective date. In this case, the Customer may terminate the existing Agreement with the date the modified General Terms and Conditions at the earliest; otherwise the Customer is deemed to have accepted the modified General Terms and Conditions.
2.4. In the event of a discrepancy between verbal statements made by IKANGAI and Agreements in writing, the written conditions shall prevail.
3. Service usage and service provision
3.1. The Customer is responsible for every use of the Services and is liable for all expenses that are made in relation with the Agreement.
3.2. Using the entrance/user code issued to the Customer, the Customer may access the Services described in the Agreement. Entrance/user codes are unique and unambiguously identify the Customer to IKANGAI. The Customer is obligated not to disclose to any third party the username, password and any other information required for the identification of the Customer by IKANGAI and ensure that they are kept strictly confidential. Any damages resulting from a breach of this obligation shall be borne by the Customer; any liability of IKANGAI for damages caused by breach of this obligation is excluded.
3.3. Services for and in connection with the operation or hosting or software design, development, implementation or operation by IKANGAI will be laid down in the Agreement. Unless separately agreed in the Agreement, IKANGAI does not deliver any user guide, technical documentation, training services or any other supplementary work, or the source code of any software developed under the Agreement. The copyright of the source code of such software shall remain with and vest in IKANGAI. The Customer may not – for any purposes whatsoever – reverse engineer, decompile, or disassemble such software, unless mandatory law does not provides otherwise.
3.4. Any software delivered to the Customer and Services for software design, development, implementation, operation or hosting shall remain the sole property of IKANGAI, unless separately agreed upon in the Agreement. Software or software concepts delivered by IKANGAI have to be checked by the Customer within five (5) working days after delivery. A description of defects identified has to be provided to IKANGAI in writing within five (5) working days after delivery. If a notice of defects is not submitted to IKANGAI in due time, the software is deemed to have been accepted and approved by the Customer at the time of delivery and the Customer confirms that all obligations under the Agreement have been satisfactorily fulfilled by IKANGAI.
3.5. Installation and upgrades for software provided by IKANGAI will be performed by IKANGAI only if so and to the extent agreed between the Customer and IKANGAI in writing. The said additional services may be charged and invoiced separately. This applies also to modifications that become necessary due to changes in the execution environment of IKANGAI’s software.
3.6. The Customer is liable for supporting IKANGAI in fulfilling its obligations of the Agreement in the most effective and timely manner and at its own cost and expenses. The Customer shall provide IKANGAI in due time with all documentation, information, data, (test) infrastructure, contact persons and any other information required by IKANGAI in order to be able to fulfill its obligations thereunder. If the fulfillment of the Agreement is not possible, IKANGAI will provide a written notice to the Customer stating the support required from the Customer as well as an adequate time period for providing the requested support. If the support requested is not provided by the 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 of the Agreement. Damages, costs and expenses caused by the lack of support on part of the Customer shall be borne by the Customer.
3.7. IKANGAI reserves the right to expand and modify all of its Services, including software designed, developed, implemented, operated or hosted, and to improve them without Customer’s consent to be required.
3.8. The Customer shall enforce the obligations under this clause towards its clients and partners. In the event of any claims raised by the Customer’s clients or partners, the Customer shall indemnify and hold IKANGAI harmless, irrespective of whether the claim has arisen from the fault of the Customer or the Customer’s client. Unless agreed otherwise, the Customer providing Services to its client and partners shall ensure that IKANGAI is named and the Trademark Policy of IKANGAI is complied with.
3.9. Services are generally accessible by the Customer on a continuous basis. However, IKANGAI shall not be responsible for any damage or loss or other detriment incurred by the Customer due to necessary maintenance work, unforeseeable or unusual circumstances beyond the control of IKANGAI and force majeure circumstances.
3.10. If the Customer violates the Agreement or these General Terms and Provisions or if the Services for other serious reasons than the breach of the Agreement or the General Terms and Conditions by the Customer cannot be rendered any longer, IKANGAI will be entitled to disconnect the Customer from the Services immediately without prior notice, to terminate the Agreement and to charge the total price of the Agreement as well as any expenses incurred to identify and remedy damages caused in the IKANGAI System (e.g. identification and deletion of provided content contrary to the Agreement). This clause also applies when the Customer provides IKANGAI with incorrect or incomplete information upon or after concluding the Agreement, or disrupts the proper performance of any services and services by IKANGAI and the Customer supports the unauthorized usage of Services by third parties. In the latter, the Customer shall be liable for all damages and losses caused to IKANGAI by the unauthorized usage of Services.
3.11. IKANGAI may disconnect the Customer fully or partially from Services without prior notice, and terminate the Agreement with immediate effect, in particular, if
- bankruptcy procedures have been commenced against the Customer, or
- the bankruptcy proceedings have been dismissed due to lack of funds; or
- the Customer dies or the Customer’s business is liquidated; or
- technical or operational causes threaten the integrity of the IKANGAI System to any possible extent; or
- it becomes impossible for IKANGAI to further render Services to the Customer.
3.12. In case of disconnection the Customer is not entitled to any compensation whatsoever. In cases where the Customer is reconnected to the Services, the Customer shall bear all costs for the reconnection. Disconnection of the Service does not release the Customer from any of the Customer’s obligations under the Agreement and the General Terms and Conditions.
4. Prices and subscription fees / Payment conditions
4.1. Prices and subscription fees will be determined in the Agreement on an individual basis between the Customer and IKANGAI.
4.2. Unless otherwise agreed upon in the Agreement, IKANGAI is entitled to invoice prices and subscription fees due in advance.
4.3. Invoices are forwarded by electronic means (e.g. via e-mail or premium text messages), post, fax or the bill of a telecommunication network operator. IKANGAI is entitled to nominate third parties for forwarding and executing invoices.
4.4. If payment for the invoice is effected via bank transfer, direct debit mandate or credit card, the Customer will ensure that the amount invoiced will be transferred to IKANGAI’s bank account free of charge and within the Term of Payment.
4.5. Payment for Services are due within fourteen (14) days after receipt of the invoice without deduction (“Term of Payment”). If the Customer does not effect payment before expiry of the Term of Payment, the Customer is in default by operation of law, without further notice of default being required. In the case of late payment, default interest shall be payable at a rate of 15% (fifteen per cent) p.a. as from the first day after the end of the Term of Payment. Additionally, the 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. From the first day after the end of the Term of Payment, IKANGAI shall furthermore be entitled to disconnect the Customer from the Services with immediate effect.
4.6. Invoices shall be checked within the Term of Payment. If within the Term of Payment no written complaint regarding the respective invoice is received by IKANGAI, the Customer acknowledges the correctness of the invoice both with respect to its cause and the invoiced amount. If a Customer wrongfully complains about invoices on a regular basis, IKANGAI is allowed to charge administrative costs of a minimum of Euro thirty (30).
4.7. The set-off of unpaid claims against IKANGAI shall be excluded.
4.8. The Customer has no right of retention with regard to Services, such as software provided by IKANGAI.
4.9. IKANGAI shall be informed by the Customer on the valid status of data needed to invoice Services without any delay (e.g. modification of name, address, credit card number, credit card expiration, etc.). Any damages resulting from the breach of this obligation shall be borne by the Customer; any liability of IKANGAI for damages caused by breach of this obligation is excluded.
5. Warranty and liability
5.1. Unless otherwise agreed upon, any form of warranty is excluded by IKANGAI to the extent permitted by law. All claims by the Customer are limited with the amount of the fees payable by the Customer.
5.2. IKANGAI does not guarantee that its Services are available without interruption, the required connections may be established at any time, or data saved will continue to be available under any circumstances. IKANGAI does not guarantee the availability of appropriate communication links (e.g. radio coverage of a telecommunication network) and execution environment operated or hosted by third parties. IKANGAI does not guarantee the compatibility of its systems on third party hardware. In none of the said cases IKANGAI will be liable vis-à-vis the Customer and any third parties; in particular, IKANGAI will not be liable for any damages caused by the installation or operation of systems of IKANGAI on third party hardware.
5.3. IKANGAI will not liable for the correctness, accuracy and trueness of any information, including but not limited to time-related information, provided by third parties as well as contractual parties of IKANGAI.
5.4. If, however, Services are not available for a period of longer than twenty four (24) hours for reasons negligently caused by IKANGAI, then, in cases where Services have been paid in advance, the usage period shall be extended by this period; and in cases where there are other methods of payment, IKANGAI shall not charge any fee for this period. This will not apply with respect to disturbances occurring in networks or system components not operated by IKANGAI.
5.5. Warranty claims shall only cover repair and replacement claims. Modification of the Agreement and the Services, and price reduction are excluded.
5.6. IKANGAI does not warrant that all Customer expectations in connection with Service functionalities will be fulfilled with components provided by the Customer.
5.7. IKANGAI may be held liable in cases of intent and gross negligence, unless agreed otherwise in the Agreement. IKANGAI’s liability is excluded in cases of financial loss, interruption of operations, indirect and consequential loss, loss or change of data, and missed or expected profit. In addition, IKANGAI shall not be liable for damages resulting from defective compliance of a third party, or damages attributable to products or services delivered by third parties and the consequences of the said damages.
5.8. IKANGAI shall not be liable for any direct or indirect damage to goods of the Customer or third parties caused by Services carried out under the Agreement. The Customer shall indemnify and hold IKANGAI harmless against any claims from third parties due to such damage, loss or any other detriment occurred.
5.9. Limitations to warranty shall remain in force beyond the contractual term of the Agreement for an indefinite period of time.
5.10. In cases of force majeure, warranty or liability shall be excluded, including enforcement of compensation. In cases of, and for the duration of, force majeure, IKANGAI is not obliged to fulfill its contractual obligations under the Agreement.
5.11. The Customer shall be liable for all damages suffered by IKANGAI due to the Customer’s conduct in violation of the provisions of the Agreement or the General Terms and Conditions or its failure to act in compliance with the provisions of the Agreement or the General Terms and Conditions. The Customer shall indemnify and hold IKANGAI harmless against all claims for compensation raised by third parties for damages that these third parties recover from IKANGAI on whatever legal grounds and insofar as such claims are based on the use of Services by the Customer.
6. (Personal) Data protection
6.1. The Customer and IKANGAI agree to treat the technical, commercial and personal affairs of the other party strictly confidential and not to disclose any information to third parties, unless required by law, by the Agreement, or the General Terms and Conditions, or after having obtained the written consent by IKANGAI.
6.2. IKANGAI is entitled to store user data for settlement and servicing the Customer. 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.
6.3. The personal data acquired by IKANGAI will only be used for the purposes as laid down in the Agreement or these General Terms and Conditions. Personal data shall only be kept for as long as is necessary to achieve the purposes of the Agreement.
6.4. 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.
6.5. 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.
6.6. The Customer agrees to inform IKANGAI on any changes in the Customer’s data without delay. The Customer shall be liable for all consequences resulting from failure to inform IKANGAI of a change of the personal data in due course. If the Customer is a legal entity, the Customer shall also inform IKANGAI in writing of any relevant change in the company (e.g. name, address, or legal form, change of control).
6.7. IKANGAI is entitled to forward the Customer’s data necessary for credit appraisal or collection to third parties, including solicitors and collection agencies.
6.8. The Customer 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.
7. Maintenance and malfunctioning
7.1. IKANGAI may put the IKANGAI System, in whole or part of it, out of operation for maintenance purposes. IKANGAI shall announce this in due time and in advance, unless it concerns a short or limited interruption only.
7.2. In the event of malfunctions IKANGAI will use best efforts to solve the malfunctions without delay.
7.3. IKANGAI is authorized to alter the technical characteristics of the Services and/or the IKANGAI System. IKANGAI shall not restrict or shut down the Services without adequate or urgent cause.
7.4. IKANGAI cannot be held liable for malfunctions of infrastructure provided by the Customer or third parties that operate IKANGAI systems.
8. Information providers
8.1. Information providers are persons or organizations making available data or information to be processed in the IKANGAI System or by Services. The information and data provided by the information provider is transferred to IKANGAI via interfaces and in a format set by IKANGAI.
8.2. Information providers are 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.
8.3. IKANGAI is entitled to use and change the information and data provided by the information provider at its own discretion without any separate fees.
8.4. 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.
9. Termination of the Agreement
9.1. The terms of termination of the Agreement shall be agreed upon between the Customer and IKANGAI in the Agreement. However, termination notices shall be sent to the other party stating the name, address, post code, place of residence and the date on which the termination should take effect.
9.2. Upon termination of the Agreement by the Customer, all claims of the Customer vis-à-vis IKANGAI shall be forfeited.
10.1. Unless otherwise agreed upon, any communication with respect to the Agreement and the General Terms and Conditions between IKANGAI and the 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. Written consents shall essentially be collected beforehand and due signatures are required for their validity.
10.2. In the event of contradicting provisions set forth in the Agreement and these General Terms and Conditions the provisions agreed upon in the Agreement shall prevail.
10.3. The transfer of rights and obligations under the General Terms and Conditions as well as the Agreement to third parties other than successors in law requires the written consent of the other party to be obtained prior to the transfer. Delay in exercising or non-exercise of any right under the Agreement and the General Terms and Conditions will not constitute a waiver of that right.
10.4. Should any term of the General Terms and Conditions be null and void or invalid, this shall not affect the validity or effectiveness of the remaining terms hereof. Should any term hereof be invalid or null and void in part, IKANGAI and the Customer shall agree on a term that closest reflects the economic purpose of that term to the extent permitted by law.
10.5. These General Terms and Conditions and the Agreement shall be construed and enforced in all respects exclusively under the laws of Austria, without reference to conflicts of law rules. The competent court for the first district of Vienna shall have exclusive jurisdiction to settle any disputes arising from these General Terms and Conditions and the Agreement.