Terms and Conditions

1. Scope

1.1emergo technologies GmbH, Rans 10c, 6071 Aldrans (hereinafter referred to as the "Provider") is a manufacturer and provider of software-supported systems. In this context, the provider operates the software Easy-Voice (hereinafter "AI Telephone Assistant") and Nabu Med (hereinafter "Transcription Assistant") and the related services. Hereinafter, the term "software" is used. The software and its usage are the subject of these terms.

1.2These terms take precedence over the provider's general terms and conditions and supplement them in regard to the software. These terms apply exclusively to use by entrepreneurs as defined in § 1 para 2 KSchG and not to consumers. The customer confirms that they are an entrepreneur in this sense.

1.3The customer's general terms and conditions do not apply. This applies even if the customer refers to their general terms and conditions in the course of an order or in other documents and the provider does not expressly object. For the AI Telephone Assistant, a phone number is created for the customer, through which incoming calls can be received by an AI system according to the prompt settings. The Transcription Assistant can listen to a conversation via a microphone, transcribe it, and then summarize it through an AI system according to the prompt specifications; it is made available as a web application and can be used for a fee.

1.4The provider reserves the right to unilaterally adjust these terms and the prices. The provider will inform the customer of any adjustments at least two weeks before they take effect. The customer is entitled to object to the change within two weeks. If they do not, or expressly agree before the deadline expires, the adjustment is considered agreed.

2. Subject of the Contract

2.1The software is operated by the provider as Software-as-a-Service. The provider makes the software available to the customer in the current version for mere use and grants them the right to use the software during the term of this contract in accordance with these conditions.

2.2The provider will support the customer in operating the software during the term of the contract and will maintain, repair, and further develop the software at their own expense. Support is limited to general assistance and initial training at the start of the contractual relationship. The provider is not obligated to offer further support services, but will carry these out for an additional fee.

2.3The provider may further develop and change the software at any time. The customer acknowledges this as well as the fact that this may cause interruptions in the usability of the software. Should the customer incur such disadvantages that continuing the contract becomes unreasonable, for which they bear the burden of proof, they have an extraordinary right to terminate the contract for good cause. This must be exercised in writing within 14 days of the software changes, otherwise it is forfeited.

2.4Beyond the described basic functionality of the software, the customer has the option to license additional features for a fee. These conditions also apply to further features or license models.

3. Conclusion of Contract

3.1The customer must register on the provider's website by completing a registration form and creating an account. The customer must provide certain data and confirm that they are an entrepreneur within the meaning of the Consumer Protection Act. Alternatively, the contract is concluded upon signing the contract documents. The customer is obliged to provide truthful information.

3.2Upon registration or conclusion of the contract, the customer must specify a certain number of users for whom they wish to acquire access to the software. Acquiring licenses for third parties is not permitted. The customer can increase the number of licensed users during the term of the contract and grant additional individuals access to the software.

3.3Following registration, the provider presents different licensing models to the customer and invites the customer to place an order. This order is accepted by the provider when (a) a valid payment method is recorded, (b) the provider is authorized to charge the payment method, and (c) the provider actually activates the customer's access to the software or feature ("Conclusion of Contract"). The provider endeavors to grant the customer access to the software within 5 working days from conclusion of contract.

3.4If the customer does not fully utilize the licensed users, they do not have a claim to reimbursement, price reduction, or any other adjustment of the contract to reflect actual use.

4. Granting of Rights

4.1All rights to the software are exclusively held by the provider. The provider grants the customer the non-exclusive, non-transferable right, which is sublicensable according to the acquired user licenses, to use the software for the duration of the contract. The customer does not acquire any further rights to the software.

4.2The software is made available to the customer by the provider at the output of the server where the software is running. An internet connection between this point and the customer's IT systems is not part of the contract and is therefore not owed by the provider.

5. Duties of the Client

5.1The client receives access credentials from the provider. The client is obliged to keep these credentials secure and not to share them with third parties. The client ensures that this obligation is also adhered to by their employees or software.

5.2The client is not authorized to edit, alter, reverse engineer, decompile, disassemble the software or program code, or determine the source code in any other way, nor to create derivative works from the software. The mandatory, non-waivable provisions of Sections 40d and 40e of the Copyright Act (UrhG) remain unaffected.

5.3Permissible use of the software includes loading it into memory, displaying, and running the software as provided by the provider. Usage is only permitted for the client's own operational and professional purposes.

5.4In the event that the transcription assistant is used in the healthcare sector, the provider explicitly points out that it is not a medical device, and the software should only be used for documentation purposes, not for medical purposes.

5.5The use of the software by the client requires certain system requirements, about which the provider has informed the client. These may change at the provider's discretion and according to the state of the art. The provider bears no responsibility for disadvantages or limitations of usability that arise from non-compliance with the system requirements.

6. Prices and Payment

6.1The customer shall pay a fee for using the software according to the information provided on the website for the specified billing interval.

6.2Payments are made in advance and are due immediately upon invoicing. In the event of delayed payment, the customer shall pay default interest in accordance with Section 456 UGB.

6.3The fee owed by the customer, as well as any additional charges, are secured against inflation, using the Consumer Price Index 2020 published by Statistics Austria as the basis for calculation. The reference value is the index number published for January of each respective year.

6.4The provider is entitled to suspend and withhold the services due if the customer is in arrears with payment. This includes the provider's right to immediately block the access of the customer and licensed users.

7. Duration and Termination of the Contract

7.1The contract commences upon conclusion of the agreement and is established for an indefinite period.

7.2The customer and the provider are entitled to terminate the contract (or parts thereof, such as features or individual user licenses) with a notice period of four weeks to the end of any calendar month.

7.3The right to terminate for cause remains unaffected. Termination for cause without a notice period is particularly possible if (7.3.1) the customer is in arrears with the payment of the fee despite a written grace period of 14 days; (7.3.2) the provider or the customer breaches a material obligation of these terms and persists in this breach despite a written request and an appropriate grace period; (7.3.3) the customer's use of the software violates the law or infringes third-party rights.

7.4In the event of termination, the provider is entitled to delete the customer's account and any data stored therein after the contract period has expired. The customer can export their data stored in the software within a period of 3 months after the contract period has expired. If the customer fails to export within this period, the provider is instructed to completely delete the data. The provider is not subject to any retention obligation beyond this.

8. Warranty

8.1The provider guarantees that the software possesses the agreed-upon features according to the service description. The provider does not guarantee suitability for any particular purpose, error-free operation, quality, or any specific attribute beyond this.

8.2Since the AI phone assistant is freely configurable via the prompt, the provider cannot guarantee that calls will be answered as desired. It is the responsibility of the customer to verify whether an AI phone assistant implements the instructions in the prompt correctly.

8.3The provider is free to modify, limit, extend, or discontinue the functions and content of the software at any time, in whole or in part.

8.4The actual use of the software is the sole responsibility of the customer. The provider assumes no responsibility for the data entered or stored by the customer.

8.5In particular, the provider does not provide warranty for inappropriate or improper use, incorrect commissioning, changed operating system components, interfaces and parameters, use of unsuitable organizational aids and storage media, abnormal operating conditions, virus infection, or other external influences beyond the provider's control (e.g. fire, accidents, power failure), or subsequent alteration of the software by the customer or third parties.

8.6Similarly, the provider does not guarantee the functionality of third-party hardware and software or third-party services, nor a lack of interoperability with the customer's system architecture.

8.7The provider guarantees an average availability of the software of 95% within a calculation period of one calendar year ("Availability Level"). Continuous availability is not owed; times of maintenance, updates, or force majeure are not included.

8.8Any warranty claims are limited to the improvement of any potentially deficient performance by the provider. Defects will be rectified through updates within a reasonable timeframe.

8.9The customer shall inform the provider immediately of any defects or malfunctions with a comprehensible error description and assist in resolving them. Malfunctions do not entitle the customer to withhold payment or reduce the fee.

8.10The presumption of defectiveness according to § 924 ABGB is mutually excluded. Thus, the burden of proof of defectiveness lies with the customer. § 377 UGB is applicable.

8.11The software was not developed for applications requiring fail-safe performance or where failure could directly result in death, injury, severe property or environmental damage. Complete (100%) IT security is technically not possible; security incidents may occur.

8.12The provider will establish a ticket system for the electronic reporting of defects and will process these within 48 hours during service hours (Mon–Fri, 08:00–17:00). Until the ticket system is set up, support requests can be sent to office@emergo.dev.

9. Use of Artificial Intelligence

9.1The provider informs the customer that the software operates using artificial intelligence as well as the customer's inputs ("prompts"). Content generated by artificial intelligence is often incomplete, incorrect, biased, or erroneous. The provider does not guarantee that the software functions without errors. Similarly, summaries by the transcription assistant may result in "hallucinations" and other errors.

9.2The customer alone is responsible for ensuring that the use of the software complies with legal requirements.

9.3The customer is obliged not to use unlawful, offensive, or illegal prompts.

10. Liability

10.1Any liability of the provider for all consequential damages, indirect damages, atypical damages and the like, particularly damages due to data loss or corruption, loss of profit or revenue, or availability of the software, is – to the extent legally permissible – excluded. Likewise, any liability resulting from incorrect, false, or harmful responses from an AI system is excluded.

10.2The liability of the provider is also limited, in terms of amount, to the fee owed by the customer for the billing interval in which the liability-triggering event occurred.

10.3Furthermore, any liability for slight negligence is excluded.

10.4The customer is liable to the provider in the event that access data is used or misused by unauthorized third parties and shall indemnify and hold the provider harmless from third-party claims that fall within the customer's sphere.

10.5The reversal of the burden of proof as per Section 1298 ABGB is excluded. Claims for damages by the customer must be asserted in court within six months of discovery, otherwise they will be forfeited.

11. Data Protection

11.1The customer is the user of the software. As such, they assume the role of the data protection controller, while the provider acts as the customer's data processor. A separate data processing agreement will be concluded.

12. General Provisions

12.1For all legal relationships between the provider and the customer, exclusively Austrian law applies, excluding Austrian international private law and the UN Convention on Contracts for the International Sale of Goods.

12.2The contracting parties agree that the court with jurisdiction over the provider's registered office shall have authority for all disputes. However, the provider is also entitled to file a lawsuit at the customer's registered office.

12.3The customer may not transfer or assign the contractual relationship to third parties without the provider's written consent.

12.4Unless otherwise stipulated in this contract, all contractual notices must be in text form (e.g. email). Sending an email is sufficient to satisfy the requirement for written form.

12.5Any changes or additions to these provisions must be made in writing. This also applies to any waiver of the requirement for written form.

12.6The contracting parties shall inform each other immediately of any changes to the contact details. If the customer does not regularly update their contact details, they may not receive important information.

12.7Should individual provisions of these terms be ineffective, this shall not affect the validity of the remaining provisions. The ineffective provision is to be replaced by an effective one that most closely meets its meaning and purpose.