General Terms & Conditions of Use

1. Subject of the contract

1.1

XBuild GmbH, Eduard-Bodem-Gasse 8, A – 6020 Innsbruck (hereinafter “XBuild”), provides the contracting party (hereinafter the “user”) within the framework of these terms of use with the software application “XBuild” operated by XBuild (hereinafter the “software”) for the purpose of web-based use (“software-as-a-service – SaaS”).

1.2

The software serves the creation and management of projects (project management). Further properties or functionalities of the software beyond those expressly warranted by XBuild in announcements concerning the software, in particular on the website accessible on the internet under the domain myxbuild.com and other domains (hereinafter the “website”), are not deemed contractually agreed.

1.3

XBuild provides the user with the software exclusively for web-based use by means of computer programs for displaying web pages in the World Wide Web (hereinafter “browser”) and by means of an application for mobile devices (hereinafter “app”).

1.4

For the purpose of providing the software to the user, XBuild makes use of the services of third parties (hereinafter “service providers”). Both the software and the data stored by the user in the course of using the software are processed on the systems of the service provider. XBuild warrants to the user that the data processing regarding data stored by the user takes place exclusively on systems located within the European Union.

Likewise, the invoicing of the remuneration and the execution of payments by the user take place with the help of third-party services.

No separate contractual relationship arises between the user and the service providers engaged by XBuild to render the services in the context of providing the software. This does not affect contractual relationships of the user with such service providers the user makes use of in the course of using the software and fulfilling their obligations, e.g. contracts of the user with payment service providers.

2. Use of the software

2.1

To be able to use the software, registration as a user on the website or via the app is required. This applies to all types of use of the software, irrespective of whether the user uses the software for remuneration or free of charge.

2.2

The contract between XBuild and the user is concluded electronically by registration on the website or in the app. Upon completion of the initial registration process by the user and simultaneous consent of the user to the validity of these terms of use, a usage contract between XBuild and the user regarding the use of the software comes into effect.

2.3

The usage contract between XBuild and the user comes into effect regardless of whether the user uses the software for remuneration or free of charge, for example within a free trial or as a participant in a project created by other users in the course of using the software.

2.4

Only these terms of use apply to the usage contract. Any terms and conditions of the user do not apply, irrespective of whether XBuild has expressly rejected them in a particular case or not.

2.5

XBuild reserves the right to amend these terms of use at any time without stating reasons. XBuild notifies users of amendments to the terms of use in the app and/or by email at least four weeks before they take effect. XBuild’s notification of the amended terms of use contains a link to the amended version. If the user does not raise objections within four weeks of receipt of the notification, the amended terms of use are deemed accepted by the user. XBuild expressly draws attention to the possibility of objection and the significance of the four-week period in the notification to users. In the event of an objection, however, XBuild reserves the right to terminate the contractual relationship with the user with a notice period of four weeks.

3. Granting of rights to the software and to content provided by the user

3.1

XBuild grants the user, for the duration of the usage contract, a simple right of use of the software limited to the purposes stated in point 1.2 of the terms of use. The right of use only covers those types of use of the software that are strictly necessary for its use for the aforementioned purposes. XBuild expressly reserves all further rights with respect to the software.

3.2

Within a project the user has created using the software or in which the user participates, the user grants all other users, with respect to the content the user has provided in the project, all rights necessary for the use of this content by the other users within the respective project. The same applies to the forwarding of content the user has provided in the project by other project participants to third parties (“external access function”).

3.3

The user acknowledges and agrees that XBuild does not monitor the adding and use of content by the users, in particular the downloading of content and its forwarding to third parties, and accordingly assumes no liability or legal responsibility for resulting infringements. If the user wishes to restrict the use of the content they have provided, they must make provision themselves through suitable measures such as password protection and the like.

3.4

The software contains parts that are subject to the MIT licence. Only with respect to these parts of the software do the following conditions apply:

Permission is hereby granted, free of charge, to any person obtaining a copy of the parts of the software subject to the MIT licence and associated documentation files, to deal in them without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense and/or sell copies, and to permit persons to whom these parts of the software are furnished to do so.

4. User obligations

4.1

Use of the software for purposes that violate the Austrian legal system or common decency is prohibited to the user.

4.2

The user warrants that, with respect to all content they provide, in particular store or share, in the course of using the software regarding a project, they hold the rights required for all conceivable types of use of the content. If the user does not hold the rights required for all conceivable types of use with respect to the content, they must either refrain from providing it or take effective precautions to rule out infringing use.

4.3

The user warrants that all information given during registration is complete and truthful.

4.4

The usage contract between XBuild and the user entitles only the user themselves to use the software. Use of the software by third parties is not permitted to the user.

4.5

The user is prohibited from passing on their access credentials to third parties. They must also protect their access credentials against unauthorized access by third parties through appropriate, effective measures. If the user becomes aware of unauthorized access by third parties, they must notify XBuild immediately.

4.6

The user is responsible to XBuild for every action on the software platform performed via their access. Excepted are only such actions that are based on unauthorized access by third parties, provided the user additionally proves that they took appropriate, effective measures to protect against unauthorized third-party access.

4.7

The user shall indemnify and hold harmless XBuild, its representatives, employees and vicarious agents against any losses, damages, expenses, costs, lawsuits, claims, court proceedings, legal disputes, actions and liability claims asserted by third parties against XBuild due to acts or omissions of the user committed within the software application or for which the user is responsible pursuant to point 4.6 of these terms of use.

4.8

If such third-party claims are pursued, the user shall provide XBuild with all available information useful for examining the claim and mounting a corresponding defence. The user shall provide this information immediately, truthfully and completely.

5. Contract term

5.1

The usage contract is concluded for a fixed duration with a monthly or annual term, whereby the usage contract is extended upon expiry of the agreed contract term.

5.2

If the usage contract was concluded for an annual term, the user must terminate the contract vis-à-vis XBuild 3 months before expiry of the contract term, otherwise the usage contract is extended by 1 year in accordance with point 5.1.

5.3

If the usage contract was concluded for a monthly term, the user must terminate the contract vis-à-vis XBuild 2 weeks before expiry of the contract term, otherwise the usage contract is extended by 1 month in accordance with point 5.1.

5.4

Termination by the user can take place by entry in XBuild’s system or by notification to XBuild’s email address.

5.5

XBuild is entitled to terminate the usage contract without stating reasons by ordinary termination with a notice period of 14 days by electronic mail, to be sent to the email address stored by the user in their user data.

5.6

If the user is at least 7 calendar days in default with the timely payment of the remuneration owed for the use of the software, XBuild is entitled, even without prior reminder, to terminate the contract with immediate effect and to block the user’s access to the software.

5.7

In the event of serious violations of these terms of use, in particular of point 4, XBuild is entitled to block the user’s access to the software and to end the usage contract with immediate effect. Remuneration for the use of the software already paid by the user for the original remaining contract term is forfeited and is not to be refunded by XBuild.

5.8

After termination of the usage contract, these terms of use remain in force insofar as they concern after-effects arising after termination of the usage contract, in particular with regard to point 9.

6. Remuneration

6.1

The remuneration for the use of the software is calculated on the basis of the licensed users multiplied by the respective licence costs per user and is invoiced monthly or annually depending on the arrangement chosen pursuant to point 5.1.

6.2

The amount of the remuneration owed by the user is determined by the respective offer on the website chosen by the user in the course of project creation.

6.3

The remuneration owed by the users is to be paid index-linked, whereby the consumer price index 2020 published by Statistik Austria or an index replacing it is to be used as the measure of calculation. The reference value is the index figure most recently published at the time of conclusion of the contract.

6.4

XBuild reserves the right to subsequently change the prices, also with effect for existing usage contracts, with the consent of the users.

6.5

The remuneration falls due for payment in advance at the beginning of the billing interval. The billing interval depends on the offer chosen by the user on the website and is due either monthly or annually. In the event of a project ending during a running billing interval, the user has no claim to reimbursement of the remuneration attributable to the remaining part of the billing interval.

6.6

Payment of the remuneration by the user must take place exclusively via those payment services offered by XBuild on the website.

7. Support / updates

7.1

XBuild will offer the user support in operating the software for the duration of the usage contract. Support is limited to the provision of general assistance such as, in particular, FAQs or tutorials on the website. XBuild expressly reserves the answering of enquiries about operating the software by electronic mail. Support by telephone is not granted by XBuild. XBuild is not obliged to provide support services beyond this.

8. Warranty

8.1

The error-free usability of the software is warranted by XBuild only insofar as the user uses those browsers whose compatibility with the software has been confirmed by XBuild and/or the user uses the app.

8.2

The user acknowledges and agrees that continuous availability of the software is neither owed nor warranted. This covers not only unforeseen interruptions of the availability of the software, but also planned maintenance work; these constitute neither a defect nor any other performance disruption. XBuild is not obliged to inform the user in advance of planned maintenance work and associated interruptions of the availability of the software.

8.3

XBuild excludes, to the extent legally permissible, any warranty for the software with respect to its suitability for a particular purpose, freedom from errors, quality or particular characteristics, unless such characteristics were expressly warranted. With respect to errors of the software, XBuild warrants only insofar as the intended use of the software is not merely insignificantly impaired by them.

8.4

All warranty claims of the user are limited to improvement of any defective performance by XBuild. The user acknowledges and agrees that the remediation of any defects of the software takes place within general updates of the software, whereby the time of delivery of updates remains at XBuild’s discretion. Defects of the software which make the intended use of the software impossible are, deviating from this, remedied by XBuild within a reasonable period.

9. Liability

9.1

Any liability of XBuild for all consequential damages, indirect damages, atypical damages and the like which accrue to the user from or in connection with the usage contract, in particular, but not limited to, damages due to data loss or damage, loss of profit or revenue, or availability of the software, is — to the extent legally permissible — excluded.

9.2

XBuild’s liability is furthermore limited in amount to the remuneration owed by the user for the billing interval in which the event giving rise to liability occurred.

9.3

Notwithstanding the above limitations of liability, any liability for slight negligence is furthermore excluded.

9.4

Insofar as software components are subject to other licence conditions, the liability provisions and exclusions made in these provisions take precedence.

10. Miscellaneous provisions

10.1

These terms of use of XBuild are conclusively regulated and replace, within the scope of the subject of the contract, all agreements and arrangements made between the parties at the time of signing the usage contract.

10.2

The user may only assign or transfer their rights and obligations arising from this agreement to third parties with the prior written consent of XBuild.

10.3

For all disputes between the user and XBuild arising from or in connection with the usage contract, the exclusive jurisdiction of the materially competent court in Innsbruck is agreed.

10.4

Exclusively Austrian law applies, to the exclusion of the conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods.

10.5

Should any provision of these terms of use prove to be wholly or partially invalid, ineffective or unenforceable, the validity and enforceability of the remaining provisions shall not be affected.