PSPDFKit Terms and Conditions
Applicability, Amendments and Modifications
The party contracting with PSPDFKit
GmbH (“PSPDFKit”) shall be referred to
as “Customer” for purposes of these
general terms and conditions (the
“Conditions”). PSPDFKit and the
Customer together are referred to as
the “Parties”, each being a “Party”.
Any use of the PSPDFKit’s SDKs (the
“PSPDFKit Technology”) by the Customer
will at all times be subject to
PSPDFKit’s User License Agreement
(available at pspdfkit.com/license).
Unless superseded by a separate
written agreement between the two
parties, these Conditions shall apply
to and be binding with regards to all
software support services (the
“Services”) provided by PSPDFKit to
the Customer. PSPDFKit hereby
expressly rejects any and all of the
Customer’s terms and conditions, such
rejection to extend to all
confirmations or communications made
by the Customer which attempt to
incorporate the Customer’s terms and
conditions by way of reference. The
Customer acknowledges and agrees that
these Conditions (including any
documents referred to herein) will be
applicable to all Services provided by
PSPDFKit.
PSPDFKit reserves the right to modify
these Conditions at any time and for
any reason; such changes may include,
but are not limited to, the imposition
of new or additional terms or
conditions. Any modification of or
amendment to these Conditions shall
enter into force and be legally
binding upon the Customer upon the
expiration of one month following
notification provided to the Customer.
The amendment notification shall
include information concerning the
material contents of any amendment as
well as a reference that any amendment
shall become legally binding after the
expiration of one month after the
Customer’s receipt of the amendment
notification, unless in case of
continuous obligations between the
Parties (e.g. monthly maintenance
activities) the Customer objected to
the amendment in writing within such
one month period and terminates the
contract in respect of the Services.
Software Support Services
PSPDFKit offers licensees of the PSPDFKit Technology the following Services:
- Customizing and integrating the PSPDFKit Technology according to the Customer’s needs and requirements (the “Customization”), whereupon the Customer does not acquire any right to the source code of the PSPDFKit Technology or obtain any title thereto. The Customer may perform any Customization only if such Customization is within the scope of documentation made available to the Customer when downloading the PSPDFKit Technology. In addition, the Customer shall not acquire any right to review, inspect or change the parameter settings developed and blocked by PSPDFKit in order to customize the PSPDFKit Technology.
- Technical support in the event that there are any questions concerning, or difficulties using, the PSPDFKit Technology.
- Consulting services, especially in relation to the use of the PSPDFKit Technology or the Individual Software.
The Services shall be performed by
PSPDFKit on the basis of information
and documents provided by the
Customer. Where necessary, the
Customer shall make available test
data at the Customer’s own expense and
afford PSPDFKit the opportunity to
carry out tests.
In respect of any Customization and/or
Individual Software, the Customer
shall make available relevant
specifications at the Customer’s own
expense. The Customer is responsible
for the correctness and completeness
of such specifications. PSPDFKit will
review the documents and information
provided by the Customer and, where
reasonably necessary, PSPDFKit shall
make changes in its sole discretion to
ensure that the Services can be
implemented by PSPDFKit accordingly.
In respect of the agreed
specification, PSPDFKit will provide
the Customer with an offer concerning
the price and estimated timing for the
delivery of the Customization and/or
Individual Software (the “Offer”) and,
following the Customer’s confirmation
of the Offer (the “Confirmed
Specification”), PSPDFKit shall
perform the Services on the basis of
the Confirmed Specification. Any
request by the Customer for any
modification of or change to the
Confirmed Specification following
acceptance of the Offer, if feasible
and subject to PSPDFKit’s acceptance,
may result in changes to the Offer,
including changes to the estimated
deadlines and pricing arrangements.
PSPDFKit is not required to
accommodate any request for any
modification of or change to the
Confirmed Specification until the
Customer has confirmed the relevant
changes (e.g. to price and deadlines)
to the Offer. All time estimations and
deadlines are only reasonable guesses
as to when work should be completed
and by no means are firm or legally
enforceable dates. Customer
understands and agrees that in
software development accurate
estimation is nearly impossible and
therefore agrees to accept delivery as
soon as PSPDFKit in good faith can
provide it.
In regards to the Customization and/or
Individual Software, payment of the
invoice following complete delivery
shall be deemed acceptance by the
Customer that the Customization and/or
Individual Software conforms with the
Confirmed Specification and that the
Services were provided by PSPDFKit as
agreed.
Should it prove that PSPDFKit is not
able to complete the Services in
accordance with the Confirmed
Specification out of factual or legal
reasons, PSPDFKit shall inform the
Customer thereof. If the Customer does
not adapt the performance
specifications accordingly, PSPDFKit
may reject performance of the
Services. The Customer shall reimburse
PSPDFKit for any costs already
accrued.
Terms of Payment
Any Service will be charged at the
prices agreed to between the Parties
in the respective service order and/or
other signed written agreement. If the
estimated amount of time is exceeded
due to the Customer’s fault, Services
shall be charged according to actual
time spent based on applicable hourly
rates conveyed.
Unless agreed otherwise between the
Parties, all prices shall be “ex
works”, in Euros, plus applicable
taxes, duties, levies and custom
duties as well as reimbursement for
all reasonable costs and expenses
(e.g. packaging costs, costs of
program carriers, costs of
transportation and travel expenses,
including travel times).
Invoices submitted by PSPDFKit to the
Customer shall be due and payable
without deduction within 21 days of
invoicing. The Customer may not
withhold or set off any payment for
any reason whatsoever.
The Customer’s failure to comply with
the agreed payment deadlines shall
entitle PSPDFKit to discontinue its
work and to withdraw from the
contract. If the Customer is behind on
payments, the Customer shall pay the
statutory default interest. If the
Parties agreed on payment by
installments and the Customer fails to
pay an installment when due, PSPDFKit
may accelerate payment of all
outstanding installments.
Place of Delivery
The place of delivery of PSPDFKit’s
Services shall be the seat of PSPDFKit
in Vienna, Austria.
The risk of transporting data and
programs in digital form, including
the risk of any manipulation of such
data and programs, shall be borne by
the Customer once PSPDFKit has made
available a download or provided data
to the Customer.
Delivery Dates
Unless expressly otherwise agreed
between the Parties, any date or
deadline for the delivery or
completion of Services shall be deemed
non-binding and illustrative. Agreed
deadlines for the delivery or
completion of Services shall commence
on the date of acceptance of the Offer
or in the event of any change of the
Offer pursuant to section 2.3,
Customer’s acceptance of such changed
Offer.
PSPDFKit will endeavor to comply with
the targeted deadlines for the
delivery or completion of Services to
the extent reasonably practicable.
However, the delivery or completion
dates can only be complied with if the
Customer (i) makes available to
PSPDFKit all necessary information and
documents and provides necessary
preliminary work in due time, and (ii)
cooperates with PSPDFKit to the extent
required.
PSPDFKit is not liable for any delay
in delivery and increase in costs
resulting from incorrect, incomplete
or subsequently changed data and
information or other acts or omissions
by the Customer. PSPDFKit will not be
held to be in default of its
obligations hereunder in the event of
such delays in delivery. Any increased
costs shall be borne solely by the
Customer.
If the provision of Services by
PSPDFKit includes several parts or
units (e.g. programs and/or support
sessions, completion in stages),
PSPDFKit may make partial deliveries
to the Customer and issue partial
invoices after delivery of every
Service unit or part thereof to the
Customer.
License and Intellectual Property Rights
All rights, including, without
limitation, all intellectual property
rights - including source codes,
database rights, know-how and trade
secrets, in each case whether
registered or unregistered (the
“Intellectual Property Rights”)
developed or created by PSPDFKit
and/or any of its employees and/or
subcontractors in connection with the
performance of Services shall accrue
exclusively to PSPDFKit, unless
expressly agreed otherwise by the
Parties on a case-by-case basis.
PSPDFKit shall grant the Customer a
personal, revocable, non-exclusive,
non-assignable, non-transferable and
non-licensable right to use the
Customization against payment of the
remuneration agreed to between the
Parties, unless expressly otherwise
agreed by the Parties on a
case-by-case basis.
The Customer shall not remove, efface
or obscure any copyright notices or
other proprietary notices of PSPDFKit
from any software or materials,
including, but not limited to, the
Customization provided hereunder.
The Customer may not modify, edit,
adapt, reverse-engineer, copy,
disassemble, decompile or duplicate in
any way the Customization or apply any
other technical or logical procedure
thereto in order to influence or gain
information about its structure,
processes, functioning or other
protectable attributes.
If PSPDFKit provides to the Customer
open source software, any use thereof
shall be subject to the respective
licensor’s terms. A list of the open
source software used in the respective
version of the PSPDFKit Technology and
the relevant license terms will be
made available to the Customer when
downloading the respective version.
Confidential Information
In the context of their business
relationship, the Parties shall grant
each other access to certain
information and materials, including,
but not limited to, the business,
source codes, trade and business
secrets, know-how, data, pricing, and products
of the other Party, that are
confidential and of substantial value
to such Party (the “Confidential
Information”); such value would be
impaired if such Confidential
Information is disclosed to third
parties. The Parties shall maintain
and protect the confidentiality of
Confidential Information in the same
manner in which they protect their own
Confidential Information of a similar
nature. The Parties will take
necessary precautions to protect and
maintain the confidentiality and
non-disclosure of Confidential
Information.
Notwithstanding any other provision
hereof, Confidential Information shall
not include any information that: (i)
is or subsequently becomes public
domain through no fault of the
disclosing Party; (ii) is already
known to the disclosing Party at the
time of its disclosure; (iii) is
rightfully received by the disclosing
Party from a third party without
restriction on disclosure; (iv) has
demonstrably been developed
independently by the disclosing Party.
The Parties’ confidentiality
obligation shall survive the end of
the Parties’ business relationship and
continue for an additional 5 years.
Warranty
PSPDFKit warrants that the Services
are performed according to best
industry standards and that the
Customization will fulfill the
functions described in the Confirmed
Specification.
PSPDFKIT ONLY ISSUES THE WARRANTIES
EXPRESSLY REFERRED TO HEREIN. PSPDFKIT
DISCLAIMS ALL OTHER WARRANTIES,
CONFIRMATIONS, GUARANTEES AND
REPRESENTATIONS IN RESPECT OF THE
CUSTOMIZATION AND/OR INDIVIDUAL
SOFTWARE TO THE EXTENT PERMITTED BY
LAW. ANY RECOMMENDATION ISSUED OR
INFORMATION PROVIDED BY THE LICENSOR
SHALL CONSTITUTE A WARRANTY TOWARD THE
LICENSEE ONLY IF EXPRESSLY AGREED AS
SUCH.
For the purpose of asserting a
warranty, the Customer shall (i)
immediately provide to PSPDFKit at
support@pspdfkit.com a detailed
description of the defect; and (ii)
make available to PSPDFKit all
documents and information necessary to
remedy the defect. If there actually
is a defect, PSPDFKit will use
reasonable efforts to remedy such
defect within a reasonable period of
time.
The warranty period shall expire 3
months after performance of the
Services and/or delivery of the
Customization. Any assumption of
deficiency under Section 924 of the
Austrian Civil Code [ABGB] is
expressly excluded.
Limitation of Liability
PSPDFKIT IS ONLY LIABLE FOR ANY DAMAGE
CAUSED BY INTENTIONAL MISCONDUCT OR
GROSS NEGLIGENCE. ANY LIABILITY FOR
DAMAGE CAUSED BY SLIGHT NEGLIGENCE IS
EXPRESSLY EXCLUDED. PSPDFKIT DISCLAIMS
ANY LIABILITY FOR ANY INDIRECT DAMAGE,
LOST PROFIT, CONSEQUENTIAL DAMAGE AND
NON-MATERIAL DAMAGE OF ANY KIND. THIS
LIMITATION OF PSPDFKIT’S LIABILITY
SHALL APPLY TO THE MAXIMUM EXTENT
PERMITTED BY LAW. ANY CLAIM AGAINST
PSPDFKIT SHALL BE ASSERTED (I) WITHIN
3 MONTHS OF THE CUSTOMER BECOMING
AWARE OF DAMAGE, OTHERWISE THE CLAIM
SHALL BE FORFEITED; AND (II) ONLY
AGAINST PSPDFKIT, EXCLUDING ANY
PERSONAL LIABILITY OF ALL
REPRESENTATIVES, EMPLOYEES AND
SUB-CONTRACTORS OF PSPDFKIT.
IRRESPECTIVE OF THE LEGAL GROUND OF
ANY CLAIM, ANY LIABILITY OF PSPDFKIT
TO THE CUSTOMER IN CONNECTION WITH THE
SERVICES PROVIDED HEREUNDER SHALL NOT
EXCEED THE SUM TOTAL OF PAYMENTS
PSPDFKIT RECEIVED IN AGGREGATE FOR
PROVIDING THE RESPECTIVE SERVICE.
Data Privacy
The Parties agree to observe any
applicable data privacy provisions in
connection with the provision of
Services hereunder and shall ensure
compliance with such provisions by
their representatives, employees and
any third party attributable to them.
PSPDFKit’s privacy policy (available
at
https://pspdfkit.com/legal/privacy/),
as amended from time to time, is
hereby incorporated by this reference
and made an integral part of these
Conditions.
Miscellaneous
Any individual written agreement
between the Parties deviating from
these Conditions shall override these
Conditions.
If any term hereof is or becomes
invalid or if these Conditions have a
loophole, this shall not affect the
validity of the remaining terms
hereof. The invalid term shall be
deemed replaced by a valid term which
closest reflects the Parties’ original
economic intent. This shall also apply
to any loophole.
These Conditions shall be governed by
and construed in accordance with
Austrian law, without giving effect to
its conflict of law rules and the UN
Sales Convention. All disputes arising
from or in connection with these
Conditions shall be referred to the
court in Vienna having subject-matter
jurisdiction.