1.1 “Fluidtime“: Fluidtime Data Services GmbH, Neubaugasse 12-14/25, 1070 Vienna, Austria, registered with the company register of the Commercial Court Vienna, registration number FN 250806 h.

1.2 “Customer“: Any natural person or legal entity entering into an agreement with Fluidtime by individual contract for the provision of services rendered by Fluidtime.

1.3 “Agreement“: Contract agreed between the Customer and Fluidtime to provide services to the Customer by Fluidtime, including any related annexes to it. Only Customers entering into an Agreement with Fluidtime are authorised to use services provided by Fluidtime. 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 Fluidtime 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 or hardware provided by Fluidtime to the Customer. The Services are described in detail in the Agreement.

1.6. “Fluidtime System“: Any components in order to provide the Customer with Services or components used by the Customer remotely, comprising primary but not exclusively, software and hardware operated by Fluidtime. The Fluidtime System provided to the Customer is described in detail in the Agreement.

2.1 These General Terms and Conditions apply to any Agreement unless otherwise explicitly agreed between the Customer and Fluidtime. Fluidtime hereby declares that it 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 Fluidtime has agreed to them in writing. By entering into an Agreement with Fluidtime or by using Services, the Customer agrees that she/he has read, understood and accepted these General Terms and Conditions.

2.2 The Customer may use Services in addition to the Services described in the Agreement. Unless otherwise agreed in writing, these General Terms and Conditions also apply to these additional Services.

2.3 The General Terms and Conditions may be modified by Fluidtime in the future. The valid version of the General Terms and Conditions are available on the Fluidtime website: www.fluidtime.com and are provided to interested parties on demand.
The Customer will be informed about modified General Terms and Conditions one month in advance of their inception. In this case, the Customer may terminate the existing Agreement until the inception of the modified General Terms and Conditions otherwise the Customer shows that the accepts the modified General Terms and Conditions.

2.4 In the event of a discrepancy between verbal statements made by Fluidtime and Agreements in writing, the written conditions shall prevail.

3.1 The Customer is responsible for every use of the Services and is, therefore, liable for all charges that are made in relation with the Agreement. More details are agreed under 4. Prices and subscription fees/Payment conditions.

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 Fluidtime. 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 Fluidtime and ensure that they remain confidential. Any damages resulting from the breach of this obligation shall be borne by the Customer; any liability of Fluidtime for damages caused by breach of this obligation is excluded.

3.3 Services for hardware implementation, operation or hosting or software design, development, implementation or operation by Fluidtime will be regulated by the Agreement. Unless separately agreed in the Agreement, Fluidtime does not deliver any user guide, technical documentation, training services or other supplementary work, or the source code of any software developed under the Agreement.

3.4 Any hardware or software delivered to the Customer and Services for hardware or software design, development, implementation, operation or hosting remain the full property of Fluidtime unless separately agreed in the Agreement. Hardware and software or hardware and software concepts delivered by Fluidtime have to be checked by the Customer within 5 working days after delivery. A description of defects identified has to be provided to Fluidtime in writing within 5 working days after delivery (post stamp). If a notice of defects is not submitted to Fluidtime in time, the hardware and software delivered is judged and the Customer confirms that all obligations under the Agreement have been successfully fulfilled by Fluidtime.

3.5 Additional services for hardware and software provided by Fluidtime, such as their installation, upgrade, etc., shall be performed by Fluidtime if agreed between the Customer and Fluidtime depending on technical conditions ensured by the Customer. Additional Services may be charged separately.

3.6 The Customer is liable for supporting Fluidtime in fulfilling its obligations of the Agreement in the most effective and timely manner and at its own cost and expense. Amongst others, the Customer is committed to provide Fluidtime in due time with all documentation, information, data, (test) infrastructure, contact persons, etc. If the fulfilment of the Agreement is not possible, Fluidtime provides a written notice to the Customer stating the support required from the Customer as well as a adequate time period for providing this support. If the support required is not provided by the Customer within the set time period, Fluidtime is entitled to terminate the Agreement. In this case, Fluidtime is entitled to charge the total price of the Agreement. Furthermore, damages, costs and expenses generated by the lack of support of the Customer shall be borne by the Customer.

3.7 After entering into the Agreement, unless otherwise agreed, cancellation of Services shall only be valid if Fluidtime has agreed to it in writing.

3.8 Fluidtime reserves the right to expand and modify all of its Services, including hardware and software designed, developed, implemented, operated or hosted, and to improve them.

3.9 The Customer is also obliged to enforce the obligations described in paragraph 3 towards clients and partners of the Customer. In the event of any claims from clients or partners of the Customer, the Customer shall indemnify and hold Fluidtime harmless, whether the claim has arisen from the fault of the Customer or the Customer’s client. Unless separately agreed, the Customer providing Services to its client or partners must ensure that Fluidtime is named and the Trademark Policy of Fluidtime is complied with.

3.10 Services are generally accessible by the Customer on a continuous basis, excepting periods of required maintenance work. However, Services may be disturbed by unforeseeable or unusual circumstances beyond the control of Fluidtime as well as by force majeure. (With regard to liability see 5.4).

3.11 If Fluidtime determines that the Customer’s behaviour is in contradiction to the Agreement and these General Terms and Provisions and the rendering of Services can not be expected any longer due to the Customer’s serious breach of the Agreement or these General Terms and Conditions, Fluidtime is 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 effort needed to identify and remedy damages caused in the Fluidtime System (e.g. identification and deletion of provided content contrary to the Agreement). This clause also applies when the Customer gives Fluidtime incorrect or incomplete information upon or after concluding the Agreement, or is disrupting the proper performance of any services and services by Fluidtime and the Customer supports the unauthorised usage of Services by third parties. In the last case, the Customer is liable for all damages and disadvantages caused to Fluidtime by the unauthorised usage of services.

3.12 Furthermore, Fluidtime may disconnect the Customer fully or partially from Services without prior notice, and terminate the Agreement with immediate effect if bankruptcy procedures have been started regarding the assets of the Customer, or if the bankruptcy proceedings have been dismissed due to lack of assets to cover costs, or if the Customer dies or the Customer’s business is being liquidated, or the presence of technical or operational causes threatening the integrity of the Fluidtime System to any possible extent, or if further provision of Services becomes impossible for Fluidtime.

3.13 In case of disconnection the Customer is not entitled to to any compensation. In cases where the Customer is reconnected to the Services, the Customer shall meet the costs for reconnection. Disconnection of the Service does not release the Customer from any of the Customer’s obligations under the Agreement.

4.1 Unless otherwise agreed, prices and subscription fees shall be determined on the basis of the publicly available price lists (reported on the website www.fluidtime.com) as from the day on which the Fluidtime website is and/or Fluidtime Services are used by the Customer. Prices for Services exclude communication charges (e.g. Internet connection or mobile data transmission costs), except where separately agreed in writing or explicitly determined on the Fluidtime website.

4.2 Fluidtime is entitled to change its prices at its own discretion. Changes to prices will be announced at one month in advance on the website www.fluidtime.com. In this case, the Customer is entitled to terminate the Agreement with effect as per the date the new prices enter into force. However, termination of the Agreement is not possible if prices are decreased by Fluidtime.

4.3 Unless otherwise agreed, Fluidtime is entitled to invoice prices and subscription fees due in advance.

4.4 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. Fluidtime is entitled to nominate third parties for forwarding and executing invoices.
4.5 If payment for the invoice is effected via bank transfer, direct debit mandate or credit card, the Customer agrees on the debit of the price or subscription fee invoiced by Fluidtime. Furthermore, the Customer agrees on the exchange of all data related to this debit.

4.6 Invoices for Services are due 10 days after receipt without deduction ("Term of Payment"). After the Term of Payment has expired, the Customer shall be 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 8 % annually as from the moment when the Term of Payment has expired. In addition to the interest, the Customer shall reimburse to Fluidtime all costs resulting from the delay, the cost of notices and collection required for enforcing its legal rights, as well as possible costs of Fluidtime´s legal representation, with a minimum charge of Euro 15. From the moment that the Term of Payment expires, Fluidtime shall furthermore be entitled to disconnect the Customer from the Services with immediate effect.

4.7 Invoices shall be checked within the Term of Payment. If within the Term of Payment no written complaint is forwarded to Fluidtime with regard to the invoice, the Customer acknowledges the correctness of the invoice both with respect to its cause and amount. If a Customer wrongfully complains about invoices on a regular basis, Fluidtime is allowed to charge administrative costs of a minimum of Euro 30.

4.8 Setting off of open claims against Fluidtime shall be excluded, except for legally enforceable claims or claims acknowledged by Fluidtime in writing.

4.9 The Customer has no right of retention with regard to Services, such as software and hardware provided by Fluidtime.

4.10 Fluidtime 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 Fluidtime for damages caused by breach of this obligation is excluded.

5.1 Fluidtime shall observe the guidelines of utmost care, reliability and availability for performance of its Services.

5.2 Unless otherwise agreed, any form of warranty is excluded by Fluidtime to the extent permitted by law. All claims by the Customer are limited with the amount of the fees payable by the Customer.

5.3 Fluidtime in particular does not guarantee that its Services are available without interruption, that the required connections may be established at any time, or that data saved will last under any circumstances. Services may be disturbed by unforeseeable or unusual circumstances beyond the control of Fluidtime, as well as by force majeure. In particular, since the Services are dependent on the availability of appropriate communication links (e.g. radio coverage of a telecommunication network) and IT infrastructure operated or hosted by third parties, it is not possible to guarantee the customary high quality and availability of Services in all places and at all times. These cases shall not constitute any liabilities for Fluidtime. Furthermore, Fluidtime is 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 Fluidtime.

5.4 If, however, Services are not available for a period of 24 hours for reasons negligently caused by Fluidtime, then, in cases where Services have been paid in advance, the usage period shall extend by this period; and in cases where there are other methods of payment, Fluidtime shall not charge any fee for this period. Disturbances occurring in networks or system components not operated by Fluidtime shall be excluded.

5.5 Warranty claims shall only cover repair and replacement claims. Modification of Service and price reduction is excluded.

5.6 Fluidtime does not warrant that all Customer expectations in connection with Service functionalities can be fulfilled with components provided by the Customer.

5.7 Fluidtime may be held liable in cases of intent and gross negligence, unless agreed differently in the Agreement. Fluidtime’s liability is excluded in cases of financial loss, interruption in operations, indirect and consequential loss, loss or change of data, and missed or expected profit. In addition, Fluidtime 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 Fluidtime shall not be liable for any direct or indirect damage to goods belonging to the Customer, to third parties or to goods of third parties, caused by activities carried out under the Agreement. The Customer shall indemnify Fluidtime against any claims from third parties due to such damage.

5.9 Limitations to warranty shall remain in force beyond the contractual term of the Agreement.

5.10 In cases of force majeure, warranty or liability is excluded, including enforcement of compensation as well. In cases of, and for the duration of, force majeure, Fluidtime is not obligated to fulfil its contractual obligations under the Agreement.

5.11 In each and every case, the Customer is liable for all damagse suffered by Fluidtime due to the Customer´s acting or failing to act in a way that violates the provisions of the Agreement or these General Terms and Conditions. Furthermore, the Customer shall indemnify Fluidtime against all claims from third parties for compensation for damages that these third parties could recover in any way from Fluidtime, insofar as these claims are based on the use of Services by the Customer. The liability of the Customer shall extend to cases prescribed by law.

6.1 The Customer and Fluidtime agree to handle the technical, commercial and personal affairs of the other party confidentially and not to pass any information to third parties, unless required by law, by the Agreement, or the General Terms and Conditions.

6.2 Fluidtime is entitled to store basic user data for settlement and servicing the Customer. Basic 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 they must be deleted pursuant to regulations under Austrianlaws.

6.3 The personal data acquired by Fluidtime will only be used for the purposes as laid down in the Agreement or these General Terms and Conditions.

6.4 Fluidtime shall process the personal data in accordance with the law and in a proper and careful manner. Personal data shall only be kept for as long as is necessary to achieve the purposes of the Agreement. The personal data collected by Fluidtime shall not be processed in a manner that is incompatible with the purposes for which it was obtained. This data shall be used in order to calculate prices or subscription or licensing fees, 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, Fluidtime.

6.5 Fluidtime shall take all technical and organisational precautions to protect the personal data of Customers against loss and any form of unlawful use. In cases where a third party in some way nevertheless gains access to and disposal of, or utilises data stored by Fluidtime, Fluidtime´s liability is excluded.

6.6 The Customer consents to inform Fluidtime on any changes in the Customer´s data without any delay. The Customer shall be liable for all consequences resulting from the failure to inform Fluidtime of a change of the personal data in time. If the Customer is a legal entity, the Customer shall also inform Fluidtime in writing of any relevant change in the company (e.g. name, address, or legal form).

6.7 The Customer consents to have queries performed regarding the person or legal entity in any credit protection institution. The Customer furthermore gives consent to Fluidtime 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 Fluidtime.

7.1 Fluidtime may put the entire Fluidtime System, or part of it, out of operation for maintenance. Fluidtime shall announce this in good time and in advance, unless it concerns a short or limited interruption only.

7.2 Malfunctions, if any, will be investigated by Fluidtime as quickly as possible. Fluidtime shall make every effort to solve the malfunctions as quickly as possible.

7.3 Fluidtime is authorised to alter the technical characteristics of the Services and/or the Fluidtime System. Fluidtime shall not temporarily restrict or shut down the Services provided without adequate or urgent cause.

8.1 Information providers are persons or organisations making available data or information for their processing in the Fluidtime System or by Services. The information and data provided by the information provider is transferred to Fluidtime via interfaces and in a format set by Fluidtime.

8.2 Information providers are engaged to regularly verify the correctness and up-to-datedness of information and data provided to Fluidtime and to provide only correct and up-to-date information and data to Fluidtime.

8.3 Fluidtime 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 Fluidtime does not break any legal regulations and does not affect the rights of third parties (e.g. copyrights). In cases where the information provider breaches this obligation, the information provider is fully liable for all damages and disadvantages arising hereof and all damages, costs and expenses caused shall be borne by the information provider.

9.1 The terms of termination of the Agreement shall be agreed between the Customer and Fluidtime in the Agreement. However, termination notices shall 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 the Customer might have against Fluidtime lapse.

10.1 Unless otherwise agreed, information between the parties 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 The transferring rights and obligations under the General Terms and Conditions as well as the Agreement to third parties requires the written consent of the other party. Waiving rights may not originate from one act or the omission of one contractual party, unless a separate statement has been made to this effect.

10.3 The Customer is acting in his own name, on his own responsibility and at his own risk.

10.4 These General Terms and Conditions shall be construed and enforced in all respects exclusively under the laws of Austria, without reference to its 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.

These General Terms and Conditions together with the Trademark Policy is part of the Fluidtime legal notice.

Copyright © 2005 Fluidtime Data Services GmbH. All rights reserved.
Any rights not expressly granted herein are reserved.