1. APPLICATION
1.1 Kwapso - hereinafter referred to as Kwapso - provides its services exclusively on the basis of these General Terms and Conditions. These also apply to all future business relationships, even if no express reference is made to them.
1.2 Collateral agreements, reservations, amendments or supplements to these General Terms and Conditions must be made in writing in order to be valid; this also applies to any deviation from the written form requirement.
1.3 Any terms and conditions of the contractual partner that conflict with or deviate from these terms and conditions shall only become effective if they are expressly recognized by Kwapso in writing, even if Kwapso is aware of them.
1.4 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the binding nature of the remaining provisions and the contracts concluded on the basis thereof. The invalid provision shall be replaced by a valid provision that comes as close as possible to the meaning and purpose of the invalid provision.
2. CONCLUSION OF CONTRACT
2.1 The basis for the conclusion of the contract is the respective offer from Kwapso or the customer's order, in which the scope of services and the remuneration are set out. Kwapso offers are subject to change and non-binding.
2.2 If the customer places an order, he is bound to it for two weeks from its receipt by Kwapso. The contract is concluded when Kwapso accepts the order. The acceptance must be made in writing (e.g. by order confirmation), unless Kwapso clearly indicates (e.g. by taking action on the basis of the order) that it accepts the order.
3. SCOPE OF SERVICES, ORDER PROCESSING AND CUSTOMER'S DUTY TO COOPERATE
3.1 The scope of the services to be provided shall be determined by the customer's order or the service description or the information in the contract. Subsequent changes to the content of the service must be made in writing.
3.2 All Kwapso services must be checked by the customer and released within three days. If they are not approved in good time, they shall be deemed to have been approved by the customer.
3.3 The customer shall immediately provide Kwapso with all information and documents required for the provision of the service. The customer shall inform Kwapso of all processes that are important for the execution of the order, even if these circumstances only become known during the execution of the order. The customer shall bear the costs incurred if work is delayed as a result of incorrect, incomplete or subsequently changed information provided by the customer.
3.4 The customer is also obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any existing copyrights, trademark rights or other rights of third parties. Kwapso is not liable for any infringement of such rights. If a claim is made against Kwapso due to such an infringement of rights, the customer shall indemnify and hold Kwapso harmless; the customer shall compensate Kwapso for all disadvantages incurred by Kwapso as a result of a third-party claim.
4. EXTERNAL SERVICES / COMMISSIONING OF THIRD PARTIES
4.1 Kwapso is entitled, at its own discretion, to perform the service itself, to use third parties in the provision of contractual services and / or to substitute such services (“agent”).
4.2 Procurement agents are commissioned either in their own name or in the name of the customer, but in any case for the account of the customer. The general terms and conditions of the commissioned subcontractors shall always apply - even if the processing work is to be charged to the customer via Kwapso. The full invoice amount must be paid on time, a reduction of the invoice amount is only permitted as soon as we have received a credit note from the supplier; if the invoice has already been transferred, we will refund the difference.
4.3 Kwapso shall carefully select procurement assistants and ensure that they have the necessary professional qualifications.
5. DATES
5.1 Agreements on deadlines and dates must be recorded or confirmed in writing. Kwapso shall endeavor to meet the agreed deadlines. However, failure to meet the deadlines shall only entitle the customer to assert the rights to which he is legally entitled if he has granted Kwapso a reasonable grace period of at least 14 days. This period begins with the receipt of a reminder letter to Kwapso.
5.2 If the grace period expires without result, the customer may withdraw from the contract. Kwapso is only obliged to pay compensation for damages due to delay in the event of intent or gross negligence on the part of Kwapso.
5.3 Unavoidable or unforeseeable events - in particular delays at Kwapso contractors - shall in any case release Kwapso from compliance with the agreed delivery date. The same applies if the customer is in default with his obligations necessary for the execution of the order (e.g. provision of documents or information). In this case, the agreed date shall be postponed at least to the extent of the delay.
6. WITHDRAWAL FROM THE CONTRACT
Kwapso is entitled to withdraw from the contract in particular if - the performance of the service is impossible for reasons for which the customer is responsible or is further delayed despite the setting of a grace period; - there are justified concerns regarding the customer's creditworthiness and the customer neither makes advance payments at Kwapso request nor provides suitable security before Kwapso performs.
7. HONORARY
7.1 Unless otherwise agreed, Kwapso fee claim arises for each individual service as soon as it has been provided. Kwapso is entitled to demand advance payments to cover its expenses.
7.2 All services provided by Kwapso that are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses incurred by Kwapso shall be reimbursed by the customer.
8. PAYMENT
8.1. Payments to Kwapso must be made exclusively via Stripe links provided by the contractor. Monthly payments are to be made in advance via credit card or SEPA direct debit. Multiple payment options are available (monthly or yearly). In the event of non-payment, access to the software will be blocked.
8.2. The customer agrees to bear all costs and expenses related to the collection of the debt, such as collection fees or other necessary costs for appropriate legal action.
8.3. In the event of the customer's payment default, Kwapso may immediately demand payment for all services and partial services provided under other contracts concluded with the customer.
8.4. The customer is not entitled to offset their claims against Kwapso claims unless the customer's claim has been acknowledged in writing by Kwapso or legally determined. The customer's right to retain is excluded.
8.5. Initial development costs are payable by invoice, either with a 50/50 split or a 20% deposit and 6 monthly installments.
9. LIABILITY
10.1 Kwapso shall only be liable for damages within the scope of the statutory provisions if it can be proven to have acted with intent or gross negligence. Liability for slight negligence is excluded. The existence of gross negligence must be proven by the injured party.
10.2 No guarantee of results - We understand the importance of successful outcomes for our clients. However, it is important to recognize that success is influenced by various external factors that are beyond our control. Although we strive to provide the best possible service, we cannot guarantee specific results or success. The success of our efforts is subject to circumstances and conditions that may vary.
10. WARRANTY AND COMPENSATION FOR DAMAGES
10.1 The customer must assert and substantiate any complaints in writing immediately, but in any case within three days of Kwapso performance. In the event of justified and timely complaints, the customer is only entitled to the right to improvement or replacement of the service by Kwapso.
10.2 If the complaint is justified, the defects will be rectified within a reasonable period of time, whereby the customer shall enable the group to take all measures necessary to investigate and rectify the defects. Kwapso is entitled to refuse to improve the service if this is impossible or involves disproportionately high costs for Kwapso.
10.3 The reversal of the burden of proof in accordance with § 924 ABGB at the expense of Kwapso is excluded. The existence of the defect at the time of delivery, the time of discovery of the defect and the timeliness of the notice of defect must be proven by the customer.
10.4 Claims for damages by the customer, in particular due to delay, impossibility of performance, positive breach of contract, culpa in contrahendo, defective or incomplete performance, consequential damage or tort are excluded, unless they are based on intent or gross negligence on the part of Kwapso. Lost profit or contribution margin cannot be claimed.
10.5 Any claim for damages can only be asserted within six months of knowledge of the damage.
10.6. Claims for damages are limited to the order value excluding taxes.
