General Terms and Conditions

General Terms and Conditions of seasonax GmbH

(hereinafter the "General Terms and Conditions")

 

Status July 2018

 

  1. Scope / Amendments of General Terms and Conditions

 

  • seasonax GmbH with its corporate seat in Vienna, registered with the commercial register of the Commercial Court in Vienna under FN 411701 v (hereinafter "Seasonax") provides all deliveries and services relating to the usage of software of Seasonax (hereinafter "Software") to its customers (hereinafter the "Customer", the Customer and Seasonax hereinafter also jointly referred to as the "Parties") on the basis of these General Terms and Conditions as applicable at the time the respective agreement has been entered into.

 

  • These General Terms and Conditions shall apply to consumers as well as to entrepreneurs in the meaning of the Austrian Consumer Protection Act (Konsumentenschutzgesetz).

 

  • If these General Terms and Conditions refer to "consumer(s)", these are natural persons who order deliveries and services relating to the usage of Software not for a commercial, independent or freelance activity, i.e. the respective order does not belong to the natural person's business.

 

  • If these General Terms and Conditions refer to "entrepreneurs", these are natural or legal persons or legal partnerships for which the respective order of deliveries and services relating to the usage of Software belongs to their business. The differentiation between consumer and entrepreneur is made according to the Austrian Consumer Protection Act.

 

  • These General Terms and Conditions shall apply to all present and future transactions with Seasonax, even if not explicitly referred to repeatedly. Seasonax expressly rejects any deviating general terms and conditions of the Customer. Any deviations from these General Terms and Conditions, additional agreements or any possible conflicting terms and conditions of the Customer shall only be valid, if they have been confirmed in writing by Seasonax.

 

  • The provisions of these General Terms and Conditions may be amended by Seasonax without notice at any time, whereby any such amendments shall be published on the website of Seasonax, seasonax.com (hereinafter the "Website") and/or, if the Customer is an entrepreneur, (at most) by sending the text of the amendment to the e-mail address provided by the Customer, at least 30 days before any such amendments enter into force. Amendments of these General Terms and Conditions require the Customer's approval. The Customer approves the amended General Terms and Conditions by clicking an OK button in the course of the next login on the Website. If the Customer who is an entrepreneur does not object to any such amendments within 30 days after receipt of the aforementioned announcement in writing by e-mail to support@seasonax.com, any such amendments shall be deemed accepted by the Customer. In case the Customer does not approve and/or in case the Customer is an entrepreneur and timely objects to any such amended General Terms and Conditions, the contractual relationship between the Customer and Seasonax shall be continued subject to the General Terms and Conditions as in force prior to the announced amendments.

 

  1. Registration

 

  • The use of the Software is reserved for registered Customers. Customers do not have a claim to registration. Seasonax reserves the right to request proof of the identity and creditworthiness of the Customer as well as the power of representation of the persons acting on behalf of the Customer as part of the registration process and to refuse registration of a person without giving reasons. For the avoidance of doubt, proof of the power of representation of the persons acting on behalf of the Customer can only be requested if the Customer is an entrepreneur.

 

  • As part of the registration process, the Customer has to provide all required information completely and truthfully and subsequently update such information without delay in the event of any change. Following true indication of all required data in the registration process and acceptance of the registration by Seasonax, the Customer receives a confirmation e-mail containing an activation link for completion of the registration. After the initial registration, the Customer may register by entering his/her personal access data (username and password) on the Website.

 

  • The Customer undertakes to keep his/her access data secret and to protect the access data from access by unauthorized third parties. The Customer is solely responsible for the confidentiality and protection of his/her access data. If the Customer passes on his/her access data to third parties, he or she undertakes to transfer the obligation to comply with these General Terms and Conditions to the third party. The Customer shall be liable for all disadvantages Seasonax may suffer if the Customer does not comply with the foregoing obligation. However, the foregoing shall not apply in the event of misuse of access data by third parties without fault on the part of the Customer. In case the Customer loses his/her access data or in case of suspicion that unauthorized third parties have become aware of the access data, the Customer is obliged to promptly notify Seasonax by e-mail to support@seasonax.com in order to arrange for the Customer account to be blocked.

 

  1. Conclusion / Effective Date of a Contract

 

  • After registration on the Website, the Customer confirms that the General Terms and Conditions were read, understood and explicitly accepted by clicking on the "I have read, understood and explicitly accept the General Terms and Conditions of seasonax GmbH" button. By clicking on the "complete order with the obligation to pay" button, the Customer submits a binding offer to conclude a contract with Seasonax for the usage of the Software (with costs). The acceptance of this offer and thus the conclusion of the contract is effected by sending an order confirmation to the Customer by e-mail to the e-mail address provided by the Customer. Seasonax shall be entitled to demand proof of the identity and creditworthiness of the Customer before accepting an order. Any offers made by Seasonax shall be free and non-binding and merely represent an invitation for the Customer to submit an offer.

 

  • Seasonax shall be entitled to assign qualified Third Parties as subcontractors within its sole discretion. Seasonax shall be liable for the subcontractors assigned to the same extent as for its own conduct. In case the Customer requested an assignment of Third Parties, such assignment shall be construed on behalf and on the account of the Customer. Such Third Parties shall not be deemed as agents or subcontractors of Seasonax.

 

  1. Right of Use

 

  • The Customer shall be granted a non-exclusive, non-transferable and non-sub-licensable right to use the Software limited to the duration of the contractual relationship.

 

  • The Customer shall not be entitled to (reversely) develop, decompile, disassemble, modify or duplicate the Software in any manner or make the Software publicly available or use parts of the Software to create a separate application.

 

  • The Customer shall be obligated to provide appropriate precautions to prevent unauthorized access by Third Parties to the Software or the documentation.

 

  • Copyright notices and any other features identifying the program shall not be removed or altered in any event.

 

  1. System Requirements / Installation

 

  • The Customer shall be solely responsible for the establishment of a functioning and adequately dimensioned hardware and software environment for the usage of the Software. The Website provides tutorials and explanatory notes for the installation of the Software. The Customer shall be responsible for the installation of the Software and, if necessary, any patches, updates and upgrades.

 

  • In case the specified system requirements are not met and/or an adequate internet connection is not available, this may lead in particular, but without limitation, to delays in the displaying of market data, data delivery failures for market data or historical prices as well as general problems with performance.

 

  1. Prohibition of Multiple Usage / Non-assignment Clause / Further Obligations of the Customer

 

  • The Customer may use the Software on any hardware available. The usage of the Software on more than one set of hardware at a time is not permitted, in particular, any actions allowing more than one user to work with the Software simultaneously. If the Customer wishes to deploy the Software on several hardware configurations at the same time and/or have more than one user of the Software at the same time, i.e. usage by several employees simultaneously, the Customer shall be obligated to acquire the corresponding number of licenses. Further, any non-public reproduction enabling any work results of the program execution to be used simultaneously, such as the private display of the program execution to more than one user of the Customer shall be inadmissible. However, any non-public reproduction not serving the purpose to obtain any work result without additional remuneration, such as training courses on the program or the setting-up of the program by the system administrator, shall be admissible. In case of changes of hardware, the Customer shall be obligated to delete the Software on the hardware previously used.

 

  • The Customer shall not allow any Third Parties to use, in particular, to rent or borrow, the Software and any other accompanying material, neither against payment or free of charge nor limited or unlimited in time.

 

  • The Customer shall not be entitled to transfer, assign or sublicense any rights of use, claims or obligations of the contractual relationship with Seasonax to Third Parties, including affiliated companies and close relatives (nahe Angehörige) within the meaning of Section 32 of the Austrian Insolvency Act (Insolvenzordnung – IO), without the prior written consent of Seasonax; these terms shall be interpreted broadly in case of doubt.

 

  1. Warranty / Notification of Defects / Inspection Obligation

 

  • The Customer acknowledges that past results and past seasonal patterns are no indication of future performance, in particular, future market trends. Seasonax neither recommends nor approves of any particular financial instrument, group of securities, segment of industry, analysis interval or any particular idea, approach, strategy or attitude. Further, Seasonax hereby excludes any explicit or implied trading recommendation, in particular, any promise, implication or guarantee that profits are earned and losses excluded, provided, however, that in case of doubt, these terms shall be interpreted in a broad sense. Any information provided by means of the Software or on the Website shall not be construed as any kind of guarantee, warranty or representation in a prospectus. The Customer is solely responsible for the results or the trading strategy that is created, developed or applied. Indicators, trading strategies and functions of the Software may contain logical or other errors leading to unexpected results, faulty trading signals and/or substantial losses. Seasonax neither warrants nor guarantees the accuracy, completeness, quality, adequacy or content of the information provided by means of the Software or on the Website, in particular, as a result of any error of the Software. The Customer is obligated to comply with any applicable capital market rules of the applicable jurisdiction.

 

  • The statutory warranty provisions shall apply.

 

  • Product descriptions may provide performance or service descriptions to reflect the state of development, but shall not be construed as guarantees. Any guarantee is subject to an explicit written declaration by Seasonax.

 

  • If the Customer is an entrepreneur, sections 2 and 7.3 of these General Terms and Conditions shall apply with the following deviations:

 

  • The Customer shall be obligated to notify Seasonax in writing with details of any defects of the Software and, if applicable, its documentation, which have been detected or should have been detected after examination immediately, or at the latest within seven days, after the conclusion of the contract (hereinafter "Notice of Defect"). If the Customer fails to submit a Notice of Defect, the Software and, if applicable, its documentation shall be deemed to be approved and any warranty and indemnity claims as well as the right to rescission on the grounds of error or defect shall be excluded. The provision on legal presumption (Vermutungstatbestand) pursuant to § 924 Austrian Civil Code (ABGB) shall be excluded.

 

  • In the event of a justified and timely Notice of Defect, Seasonax shall have the right to choose to remedy the defects of the Software and, if applicable, its documentation by way of troubleshooting (Fehlerbehebung), replacement purchase (Ersatzbeschaffung), updates and / or upgrades. The Customer shall be obligated to install any such updates and / or upgrades.

 

  • The agreed warranty period is six months.

 

  • Seasonax shall remedy any defects within a reasonable period of time, whereby the Customer shall enable Seasonax to undertake all measures necessary to examine and remedy any defects. If Seasonax culpably fails to remedy any defect within a reasonable period of time, the Customer shall be entitled to reduce the license fee proportionately. In case of Seasonax's willingness to remedy any defect, any costs arising by using Third Parties shall be borne by the Customer.

 

  • Seasonax shall be entitled to refuse the remedy of defects, in case such remedy is impossible or entails disproportionate efforts or costs. In this event, the Customer shall have the statutory right to rescind the contract or to reduce the license fee.

 

  • Seasonax shall be under no liability in respect of any defects arising from errors caused by the Customer's installation or usage of the Software. Further, any warranty and liability claims shall be excluded for defects resulting from improper usage of the Software by the Customer, operation of the Software with inadequate power sources, operation with the incorrect type or voltage of electricity, fire, lightning, explosions, mains-related overvoltage or humidity of any kind. Furthermore, any warranty and liability claims for defects caused by modification of the Software by the Customer or Third Parties shall be excluded.

 

  • According to the latest state of the art, there is no process to guarantee an error-free execution of software. As a result, Seasonax shall not assume any liability for a continuous, error-free operation and permanent usability of the Software during the term of the contract.

 

  1. Liability

 

  • To the extent permitted by law and irrespective of the legal grounds, Seasonax shall only be liable to the extent any damage is caused by gross negligence (grobe Fahrlässigkeit) or wilful misconduct (Vorsatz). Any liability of Seasonax for simple gross negligence (schlicht grobe Fahrlässigkeit) with regard to Customers who are entrepreneurs shall be excluded. To the extent permitted by law, any liability of Seasonax for slight negligence (leichte Fahrlässigkeit) shall be excluded. Any liability for personal injury shall remain unaffected.

 

  • If the Customer is an entrepreneur, Seasonax shall not be liable for any indirect and consequential damages, in particular, but without limitation to, lost profits, loss of interest, lost savings, and Third Party claims.

 

  • Further, Seasonax shall not assume any liability for system failures, disturbances, data loss and viruses resulting from external attacks or any other reason, unless such damages were caused by the wilful misconduct or gross negligence of Seasonax.

 

  • The Customer shall be obligated to indemnify and hold Seasonax harmless against any Third Party claims, to the extent permitted by law.

 

  • In case of force majeure, work conflicts, natural catastrophes as well as any other circumstances that are beyond the control of Seasonax and/or in case of reasons not related to Seasonax which delay the fulfilment of a contract, Seasonax does not assume any liability.

 

  • To the fullest extent permitted by law, the liability of Seasonax to Customers who are entrepreneurs, shall be limited to the actual license fee paid by the Customer, but not exceeding an amount equal to the actual license fee paid in the preceding twelve months prior to Seasonax's action or omission causing such damage.

 

  • Any indemnification claims of the Customer who is an entrepreneur shall lapse within six months after having obtained knowledge of the damage and the damaging party, provided, however, that any claims of such Customer shall lapse at the latest within two years after Seasonax's action or omission causing such damage.

 

  • The provisions set out in this section 7 shall also apply to employees and other agents of Seasonax.

 

  1. Intellectual Property Rights

 

  • The Customer shall be obligated to notify Seasonax without delay in writing about any claims made by Third Parties as a result of any infringement of intellectual property rights. Further, the Customer shall be obligated to make any relevant documents, such as claim letters and decisions of any court and/or authorities, available to Seasonax upon its request. Seasonax shall pass all relevant information required for legal defence to the Customer and use its best efforts to support the Customer. The Customer shall enable Seasonax to defend any such claim and/or assign any such rights connected thereto to Seasonax.

 

  • In case of impairment of the contractual usage of the Software by an infringement of intellectual property rights, Seasonax shall be entitled - at its own discretion and costs - to either (i) modify or replace the Software so that any intellectual property rights are no longer infringed and the Software in general provides the agreed functionality and performance to the extent reasonable for the Customer, or (ii) exempt the Customer from the payment of licence fees for the usage of the Software during the agreed duration of use for the time the infringement of intellectual property rights lasts.

 

  • Seasonax shall not be liable for any claims made by third parties as a result of any infringement of intellectual property rights, in case the Customer has deviated from the agreed usage of the Software and/or implemented any amendments and/or modifications at its own discretion.

 

  1. License Fee / Changes of the License Fee / Terms of Payment

 

  • The licence fee shall be due and payable in advance for each month. Payment shall be deemed in time when received by Seasonax.

 

  • Unless agreed otherwise, the prices shown on the Website valid on the day of conclusion of the contract including statutory value-added tax shall apply.

 

  • Any discounts or rebates granted to the Customers shall only apply to the respective delivery and service of the Software and/or for a definite period of time, and are not granted for any subsequent deliveries and services of the Software and/or an indefinite period of time. The foregoing shall also apply in case Seasonax does not object to deductions made by the Customer in the course of subsequent deliveries and services of the Software and/or after the agreed upon definite period of time.

 

  • The Customer is entitled to choose one of the given payment methods available on the Website before the end of the ordering process. Cheques (Scheck) or bills of exchange (Wechsel) are not accepted. All payment must be made in advance without any deduction.

 

  • Any services of Seasonax agreed upon separately with the Customer and rendered in the course of an assignment which are not explicitly compensated by the agreed license fee will be charged separately. Any cash expenditures, expenses, travel costs, etc occurring in the course of fulfilment of the contract and/or assignment shall be reimbursed by the Customer upon the submission of the respective invoices by Seasonax.

 

  1. Default of Payment by the Customer / Exclusion of set-off

 

  • If the Customer is an entrepreneur and in default of payment, Seasonax shall be entitled – at its sole discretion – to either (i) demand payment of interest in the amount of 9.2 % p.a. above the latest base interest rate set by the European Central Bank as of the due date and claim damages for the damages caused by the default of payment or (ii) withdraw from the contract and claim damages for non-performance.

 

  • In case the Customer is a consumer and in default of payment, Seasonax shall be entitled – at its sole discretion – to either (i) demand payment of interest in the amount of 9 % p.a. as of the due date or (ii) exercise its right to withdraw from the contract only after a reasonable period of grace.

 

  • Furthermore, in case of default of payment by the Customer, any collection fees (Mahn- und Inkassospensen) adequate for an appropriate assertion of rights shall be borne by the Customer. In case the Customer is a consumer the foregoing shall only apply to the extent the Customer acted with wilful misconduct. The assertion of any other claims or rights by Seasonax remains unaffected.

 

  • In case of default of payment by the Customer, Seasonax shall be entitled to render all services, whether fully or partially performed, due and payable immediately. Further, Seasonax shall not be obliged to provide further services until the outstanding amount is paid.

 

  • The Customer is not entitled to set off claims of Seasonax with counterclaims. However, this does not apply to consumers in the event of insolvency of Seasonax as well as to counterclaims which are connected with a claim of Seasonax in a legal context or are determined by a court or are recognized by Seasonax. In these cases the consumers are entitled to set off.

 

  1. Trial Phase / Duration / Termination of the Contract

 

  • Before entering into a contract with costs, the Customer may test the Software free of charge during a trial phase determined by Seasonax (hereinafter "Trial Phase"). During the Trial Phase, any warranty and indemnity claims in connection with the Software shall be excluded, to the extent permitted by law. After the Trial Phase the usage of the Software is subject to costs.

 

  • The contract shall be concluded for either (i) one month, (ii) three months or (iii) one year. Each Party is entitled to terminate the contract in writing prior to the end of the relevant duration of the contract. The contract shall be automatically extended for either (i) one more month, (ii) three more months or (iii) one more year, depending on the original duration of the contract chosen by the Customer, unless the Customer terminates the contract in writing prior to the end of the relevant duration of the contract. Seasonax is obligated to inform the Customer separately in time, i.e. prior to the beginning of the termination period, about the option to terminate the contract or otherwise the contract will be extended.

 

  • Either Party shall be entitled to terminate the contract for good cause with immediate effect. A termination requires the written form. Such good cause shall, in particular, but without limitation, exist if a Party is in breach of material obligations under the contract, such as default of payment or persistent breach of material provisions of these General Terms and Conditions and does not remedy such breach after receipt of a written notice and setting of a grace period of ten business days by the other Party.

 

  • In case of a justified termination of the contract by Seasonax, Seasonax shall be entitled to the payment of the entire agreed license fee. This also applies in case of an unjustified termination of the contract by the Customer.

 

  • Any services performed or costs incurred by Seasonax up to the date of termination shall be paid by the Customer in full, even in cases of termination for good cause.

 

  • In case the contractual term or relationship ends, whether as a result of notice given by either Party or any other reason, the Customer’s right to use the Software expires: The Customer shall return all copies of the Software, all documentation and, if applicable, copies, summaries or extracts thereof, all copies of updates including modifications and all other confidential or proprietary information in its possession to Seasonax.

 

  1. Right of withdrawal for consumers

 

Customers who are consumers in the sense of the Austrian Consumer Protection Act are entitled to the following right of withdrawal:

 

  • The Customer has the right to withdraw from the contract within 14 days without giving any reason.

 

  • The withdrawal period will expire within 14 days from the day of the conclusion of contract.

 

  • To exercise the right of withdrawal, the Customer must inform Seasonax via support@seasonax.com or seasonax GmbH, Elisabethstraße 22/2, A‑1010 Vienna, Austria, of his/her decision to withdraw from the contract by an unequivocal statement (e.g. a letter sent by post or E-Mail). The Customer may use the model withdrawal form below or another unequivocal statement and send it to Seasonax.

 

  • To meet the withdrawal deadline, it is sufficient for the Customer to send the communication concerning his/her exercise of the right of withdrawal before the withdrawal period has expired.

 

  • In case the Customer withdraws from the contract, Seasonax shall reimburse to the Customer all payments received from the Customer without undue delay and in any event not later than 14 days from the day on which Seasonax is informed about the Customer’s decision to withdraw from the contract. Seasonax will carry out such reimbursement using the same means of payment the Customer used for the initial transaction, unless the Customer has expressly agreed otherwise; in any event there will not incur any fees as a result of such reimbursement for the Customer.

 

  • Model withdrawal form

 

(complete and return this form only if you wish to withdraw from the contract)

 

To seasonax GmbH, Elisabethstraße 22/2, A‑1010 Vienna, E-Mail: support@ seasonax.com:

 

I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*) / for the provision of the following service (*)

  • Orderd on (*)/received on(*)
  • Name of consumer(s)
  • Address of consumer(s)
  • Signature of consumer(s) (only if this form is notified on paper)
  • Date

 

_____________________

(*) Delete as appropriate

 

  1. Data protection provisions

 

The data protection regulations of Seasonax apply to all Customers of Seasonax and are an integral part of these General Terms and Conditions. They are available on the website of Seasonax under "Data Protection".

 

  1. Applicable Law / Place of Jurisdiction

 

  • All legal disputes which may arise out of or in connection with these General Terms and Conditions and/or the legal relationship between Seasonax and its Customers shall be governed by and construed under the laws of Austria without giving effect to its conflict of law rules and UN Sales Convention. In case of consumers, this choice of law applies only to the extent that the consumer is not deprived of the protection granted by the mandatory provisions of the law of the country of the consumer’s usual residence.

 

  • The Parties agree that the competent court in Vienna shall have exclusive jurisdiction to any disputes which may arise out of or in connection with these General Terms and Conditions and/or the legal relationship between Seasonax and its Customers and, for such purposes, irrevocably submit to the exclusive jurisdiction of such courts. The legal venue for all disputes arising in connection with the contract against a consumer having his/her place of residence, usual domicile or place of employment within the country shall be one of the courts of the district where the consumer has his place of residence, usual domicile or place of employment. For consumers who are not resident in Austria at the time of signing the contract, the mandatory legal place of jurisdiction shall apply.

 

  1. Final Provisions

 

  • Seasonax shall be entitled to assign the contractual relationship with its Customer to any Third Party without the prior written consent of the Customer who is an entrepreneur.

 

  • Each Party shall bear its own costs, taxes, duties or fees arising from the contractual relationship. Any possible stamp duties shall be borne by the Customer who is an entrepreneur.

 

  • Any changes, amendments and side agreements to these General Terms and Conditions shall be made in writing to be effective. This shall also apply to any waiver by the Parties of such written form requirement. In case of inconsistencies between these General Terms and Conditions and written side agreements between the Parties, the provisions of the side agreements shall prevail.

 

  • Should any provision of these General Terms and Conditions (or any part thereof) be invalid, the validity of the other provisions shall not be affected. The invalid or ineffective provision shall be deemed to be replaced by such valid and effective provision as most closely corresponds to the economic purpose of the invalid or ineffective provision.

 

  • The term "Third Party" within these General Terms and Conditions shall mean any natural or legal person, which is different to the Parties in a legal sense, even if legal and/or economic relations should exist to such a person.

 

  • In case of any inconsistency or discrepancy between the German and the English version of these General Terms and Conditions, the German version shall prevail.