Early release version
1. Introduction
1.1. These abilitate – Terms of Service (this “Agreement”) are entered into by tech2people GmbH, c/o Kerbler Holding Parkring 12/1/23, A-1010 Vienna (“Service Provider” or “t2p“) and you or the entity you represent (“User”) and govern User’s access to and use of the products and services as defined in this Agreement. T2p and the User are referred to in the following either together or singly as the “Parties“ and the “Party“.
1.2. This Agreement is applicable to commercial transactions and relationships with Users that are businesses (“Business-to-Business”) and transactions and relationships with other Users (e.g. Students). Basic subscription plan (Sec 4) is available to Users that are businesses and to other Users. Business subscription plans (Sec 5) are available only to Users that are businesses.
1.3. This Agreement is effective when the User registers and creates an User account (Sec 3), https://abilitate.at/ (“Effective Date“). If you are accepting on behalf of the User, you represent and warrant that (i) you have full legal authority to bind the User to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the User, to this Agreement.
1.4. The rights and obligations of the Parties with respect to the subject matter of this Agreement shall be determined by this Agreement and its Annexes; general terms and conditions of the Client shall not apply. In case of a discrepancy between the terms of this Agreement and the terms of its Annexes, the terms of this Agreement shall prevail. The Parties have not entered into any verbal supplemental agreements to this Agreement.
2. Description of abilitate – therapy companion
2.1 Abilitate – therapy companion. T2p provides a specialised software solution for therapists (“abilitate”).
2.2 Early release version. The version of abilitate released in September 2023 is an administration and documentation software that serves as a document filing system for therapists. This version will only be made available under the Basic subscription plan (Sec 4).
2.3 Web application. Abilitate will be made available to the User as a web application via the abilitate webpage, https://abilitate.at/. A web application is an application software that is accessed using a web browser. Web access is encrypted via HTTPS. T2p reserves the right to offer its products and services via commercial and non-commercial platforms.
2.4 Description of Services, Features and Contents. Detailed description of the service(s), features and content of abilitate is provided on the abilitate webpage, https://abilitate.at/ (“Services”). T2p may update these Services from time to time (Sec 17).
2.5 Medical device. You agree that abilitate and any Services (Sec 2.4) or Software (Sec 7.2) provided under this Agreement does not include, constitute, or otherwise consist of any medical device, product, or service.
3. User Account
3.1 Registration; Username and Passwords. In order to use abilitate, the User must first register with his or her name, e-mail address and a password of his or her choice. Registration is free of charge. T2p reserves the right to change and/or discontinue free registration at any time.
3.2 Prohibition on Sharing. The User may not share any login credentials or passwords with any other person. Nor may the User share, assign or transfer an account or any other User rights with any other person, unless otherwise stated in this Agreement.
3.3 Deletion. User account shall be deleted automatically after the termination of this Agreement (Sec 16). During the Term of this Agreement the User may request the deletion of its account at any time. The request will be sent to abilitate@tech2people.at (Sec 18).
4. Basic plan
4.1 Access. The User may access and use, under the terms of this Agreement, any version of abilitate that t2p expressly designates as a version available in basic subscription plan (“Basic Version”). T2p may revoke access to a Basic Version of abilitate or change what is available in connection with a Basic Version at any time and without notice.
4.2 Free of charge. Basic Version may be used free of charge. The User may use the Basic Version for any purpose, including commercial use.
4.3 Limitations. Basic Version may have limited features, functions, or other limitations of any kind (Sec 9.1).
5. Business Plans
5.1. Plans. All other versions of abilitate, exept the Basic Version (Sec 4), are available in a Pro Plan for single users and Enterprise Plan for groups for users.
5.2. Description of Plans and Pricing. Detailed description of the plans, Services (Sec 2.4) included in each plan, and pricing is provided on the abilitate webpage, https://abilitate.at/ (“Plans and Pricing”). Unless stated otherwise, all fees are monthly fees. The User may choose between monthly payment or annual payment of the fees, where offered by t2p. In this case, the amount payable may vary. T2p may make changes to these Plans and Pricing from time to time (Sec 17). For Invoicing, payment and taxes also see Sec 6.
5.3. Order. You may subscribe to a certain business plan through an online registration and checkout process on the abilitate webpage, https://abilitate.at/. Any order is subject to the terms of this Agreement.
6. Invoicing, payment and taxes
6.1. Invoice. T2p shall monthly provide the User with an invoice specifying the fees for the Services (Sec 2.4) provided in the previous month. If the User has chosen annual payment, the payment will be required in advance and the invoice provided yearly (Sec 5.2).
6.2. Due date. Unless otherwise agreed, the User shall pay all fees specified in the applicable invoice for the Services (Sec 2.4) within eight (8) days from the invoice date by bank transfer or credit card. The User shall pay a late charge of 8% per annum above the ECB base interest rate on all payments which are not paid when due.
6.3. VAT. All monthly fees and other charges in this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added, sales or other similar taxes, which will be added to those amounts and payable by the User to t2p.
6.4. Non-refundable. Orders placed by the User for any services will be non-cancellable and the fees paid are non-refundable, unless otherwise expressly stated in the Agreement.
7. Access and Use of abilitate
7.1. License to Access and Use. T2p hereby grants to the User a worldwide, non-exclusive, revocable licence to access and use the Services (Sec 2.4) during the applicable Term (Sec 16). The User must not sub-license or transfer its rights or permit any third party to access or use the Services (Sec 2.4).
7.2. Software License. If access to or use of any portion of the Services (Sec 2.4) requires or allows for you to download, use, or install software provided by t2p (“Software”), t2p grants you a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, and royalty-free license to use the Software in object code format on a compatible device for your internal use only, solely to access and use the Services (Sec 2.4) during the applicable Term (Sec 16).
8. Software Updates and Support
8.1 Disclaimer. T2p is under no obligation to provide any updates, maintenance or support in relation to the Services (Sec 2.4) and/or Software (Sec 7.2), unless otherwise stated in this Agreement.
8.2 Updates. From time to time (i.e. when necessary or expedient), t2p will provide a software release that fixes known bugs and malfunctions or updates the Services (Sec 2.4).
8.3 New Services and Features. Use of new services, features and content, e.g. enhanced functionality, may be subject to additional charges.
8.4 Support. T2p undertakes to provide support to the User to the best of its ability and in the spirit of good business cooperation. Service malfunctions and interruptions will be rectified as soon as possible. However, there are no fixed time frames. The User must report any malfunction or interruption immediately so that the necessary steps can be taken to remedy the situation.
9. No warranties
9.1. Basic Plan. The Basic Version (Sec 4) of abilitate is provided ‘AS IS’, with no warranty, maintainance or support provided (Sec 8).
9.2. Warranty Disclaimer. T2p will provide all Services (Sec 2.4) and Software (Sec 7.2) using reasonable care and skill. However, all Services (Sec 2.4) and Software (Sec 7.2) are provided “AS IS” and “AS AVAILABLE”, without any warranties of any kind, whether express, implied, or statutory, including any warranty of merchantability, fitness for a particular purpose, or non-infringement, unless otherwise stated in this Agreement (e.g. Sec 10).
10. Availability of Services and Server accessibility
10.1. Data Storage Location. The data will be stored exclusively on servers in the European Union. Any relocation to a third country that is not a part of the European Union or the European Economic Area shall be notified to the User in advance.
10.2. Availability. T2p guarantees that its Services (Sec 2.4) will be available ninety-nine point nine percent (99.9%) of the time in a given year. For the avoidance of doubt, downtime caused directly or indirectly by update, maintenance, support or force majeure (e.g. labour disputes in third party companies, measures taken by public authorities and natural disasters) will not be considered a breach of this Agreement.
10.3. Remedy. User’s sole and exclusive remedy for any failure of the performance is that t2p will credit the User’s account for 5% of the monthly fee for the affected Services (Sec 2.4) for each hour of downtime, up to 25% of the User’s yearly fee for the affected Services (Sec 2.4).
10.4. Hosting. Services (Sec 2.4) and Software (Sec 7.2) provided by T2p are hosted by Microsoft Azure. For more detailed information, please refer to the following link: https://azure.microsoft.com/en-us/.
11. IT Security
11.1 TOMs. T2p will implement and maintain reasonable and appropriate technical and organizational measures designed to help secure the hosted content against accidental or unlawful destruction, loss, alteration, unauthorized disclosure or access (“Security Measures”).
11.2 Detailed information. Security Measures include inter alia the measures to encrypt data. For more detailed information on such measures please refer to Sec 6 and Annex C of the the abilitate – Data Processing Agreement (Sec 13).
11.3 Changes. T2p may update the Security Measures from time to time provided that such updates do not result in the degradation of the overall security of the Services (Sec 2.4).
11.4 Hosting. For more detailed information on the latest state-of-the-art measures adopted by our hosting provider, please refer to the following link: https://azure.microsoft.com/en-us/explore/security.
12. Duty of Confidentiality
12.1 Obligation. T2p and the User agree to keep all confidential information, which becomes known to them during the performance of this Agreement strictly confidential, and only to use such information for the contractually agreed purposes. Confidential information for the purpose of this provision shall mean information, documents, details and data, which is marked as such or is to be seen as confidential because of its nature.
12.2 Survival. These rights and obligations shall not be affected by the termination of this Agreement (Sec 16).
13. Data Protection
13.1 Privacy. We collect certain data and information about the User and the use of the Services (Sec 2.4) or Software (Sec 7.2), including, but not limited to, their use to process personal data. T2p collects and uses all such data and information in accordance with the abilitate – Privacy Policy, available under the following link: https://abilitate.at/privacy-policy/, which you acknowledge.
13.2 Research and Development. T2p uses analytics techniques to better understand how the Services (Sec 2.4) and Software (Sec 7.2) are being used and to improve and further develop its services and software. For more information on these techniques and the type of data collected, please read the abilitate – Privacy Policy.
13.3 Employees. T2p requires its employees to comply with data protection regulations and to maintain confidentiality and data secrecy for an unlimited period of time, even beyond the duration of any employment relationship.
13.4 Outsourcing. T2p may outsource the storage and processing of data to a contracted company (inter alia Sec 10.4).
13.5 User responsibilities. If the User uses the Services (Sec 2.4) or Software (Sec 7.2) to process personal data, the User is solely responsible for assessing the permissibility of the data collection, data processing and data use, the information obligations in the event of data collection as well as for safeguarding the rights of the data subjects. This includes, but is not limited to, providing legally adequate privacy notices and, where appropriate, obtaining necessary consents for the processing of such data. The User hereby represents and warrants to t2p that personal data is processed in accordance with applicable law.
13.6 Data Processing Agreement. T2p shall process the personal data that the User generates or provides (e.g. by upload) (Sec 13.5) in accordance with the User’s instructions and the abilitate – Data Processing Agreement, available under the following link: https://abilitate.at/data-processing-agreement/.
14. Content and Data Usage
14.1. User Content. Data (personal and non-personal), content, files, documents, or other materials that the User generates or provides (e.g. by upload) in connection with the Services (Sec 2.4) or Software (Sec 7.2), together with any resulting transcripts, recordings, outputs, visual displays, or other content, are referred to as User Content.
14.2. Content License. T2p will only access, process or use User Content as required to perform its obligations and provide the Services (Sec 2.4) or Software (Sec 7.2) in accordance with this Agreement; as authorized or instructed by the User in this Agreement or otherwise; in accordance with the abilitate – Privacy Policy (Sec 13); as required by law; or for legal, safety or security purposes. The User grants t2p a perpetual, worldwide, non-exclusive, royalty-free, sublicensable, and transferable license and all other rights required or necessary for the outlined uses of User Content.
14.3. User responsibilities. The User is solely responsible for compliance with all laws and regulations pertaining to the User Content, including laws requiring you to obtain the permission of a third party to use, license or generate User Content and to provide appropriate notices of third party rights. The User hereby represents and warrants to t2p that User Content is used, licensed, and generated in accordance with applicable law.
14.4. Anonymized and Aggregated Data. T2p may obtain, aggregate and process data the User generates or provides (e.g. by upload) in connection with the Services (Sec 2.4) or Software (Sec 7.2) on a de-identified or anonymized basis (“Anonymous Data”). The Anonymous Data may be used and shared with third parties in accordance with applicable law, including to analyse, develop, improve, support, and operate the services and software provided by t2p to the User or other unrelated customers, during and after the applicable Term (Sec 16), including to generate research insights, industry benchmarks or best practices guidance, recommendations, or similar reports.
14.5. Service Generated Data. Telemetry data, services and product usage data, diagnostic data, and similar data that t2p collects or generates in connection with the Users use of the Services (Sec 2.4) or Software (Sec 7.2) are referred to as Service Generated Data. T2p owns all rights, title, and interest in and to Service Generated Data, and may use it in accordance with applicable law.
15. Liability
15.1 Limitation of Liability. T2p shall be liable without limitation in cases of intent and gross negligence, in cases of injuries to life, body or health, pursuant to the terms of the Product Liability Directive 85/374/EEC and national transposition law in the event of product liability, and under a guarantee explicitly given by t2p as such in writing. However, t2p shall not be liable to the User for slight negligence.
15.2 Consequential Damages Waiver. T2p shall not be liable to the User in respect of any loss of profits or anticipated savings, any loss of revenue or income, any loss of use or production, any loss of business, contracts or opportunities, any loss or corruption of any data, database or software, any special, indirect or consequential loss or damage, and any losses arising out of a force majeure event (e.g. labour disputes in third party companies, measures taken by public authorities and natural disasters).
15.3 Period. Any claim against t2p must be commenced within one year after the date on which the User first knew or reasonably should have known of the act, omission or default giving rise to the claim. No remedy shall be available for any claim not commenced within such time period.
15.4 Indemnification. To the extent that any third party shall (on whatever basis) raise any claims against t2p, its employees or agents, the User shall, upon first written demand, indemnify t2p against such damage compensation claims.
16. Term of the Agreement, Data Retention and Exit
16.1 Term. This Agreement shall become effective upon execution and shall remain until terminated by either of the Parties.
16.2 Termination. Party can terminate this Agreement at any time. Any termination notice shall be given in a written form. T2p will be notified per email to abilitate@tech2people.at (Sec 18).
16.3 Suspension of Services. T2p may suspend the provision of all Services (Sec 2.4) if any amount due to be paid by the User under this Agreement is overdue.
16.4 Retention period. T2p keeps the hosted data for another 60 days after the termination of the Agreement. Data is permanently deleted after the retention period.
16.5 Retransfer of Data. During the retention period, t2p will return all of the User’s data stored in databases to the User as backup files and its data stored in file systems as compressed files. The User shall request transfer of data per email to abilitate@tech2people.at (Sec 18).
17. Modification of the Services and the Agreement
17.1. Modification of the Services. T2p may make commercially reasonable updates to the Services (Sec 2.4), including, but not limited to, features, components and source code, from time to time. T2p will inform the User if it makes a material change to the Services (Sec 2.4) provided to that User that has a material impact on the User’s use of these Services (Sec 2.4) by sending an email to the User’s email address.
17.2. Modification of the Agreement. T2p may make changes to this Agreement, including applicable fees (and any linked documents) from time to time. T2p will provide at least 30 days’ advance notice for material changes to the Agreement by sending an email to the User’s email address. User’s continued use of the Services (Sec 2.4) after such material change will constitute User’s consent to such changes.
17.3. Discontinuing of Service. T2p will notify the User at least 90 days before discontinuing any Service (Sec 2.4) or associated material functionality, unless it replaces such discontinued service or functionality with a materially similar service or functionality, or significantly modifying a User-facing API in a backwards-incompatible manner.
18. Final provisions
18.1 Notifications. The User shall contact t2p using the following contact point: abilitate@tech2people.at.
18.2 Governing law. This Agreement shall be governed by and construed in accordance with the laws of the Republic of Austria without regard to the UN Convention on the International Sale of Goods (CISG).
18.3 Jurisdiction. The courts of Vienna, Republic of Austria, shall have exclusive jurisdiction over any dispute arising out of or in connection with this Agreement.
18.4 Written form. Amendments and additions to this Agreement, including amendments to or a waiver of this written form requirement shall be made in writing.
18.5 Severability. Should individual terms of this Agreement be or become invalid or unenforceable or in case this Agreement contains omissions, this shall not affect the validity of the remaining terms. Instead of the invalid, unenforceable or missing term, such valid and enforceable term shall be deemed to have been agreed upon between the Parties which the Parties would reasonably have agreed upon taking into account the economic purpose of this Agreement had they been aware at the conclusion of this Agreement that the relevant term was invalid, unenforceable or missing.
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