Terms & Conditions
SaaS Agreement - fonio.ai
General
SaaS contract. This SaaS agreement is entered into between fonio GmbH, Joanelligasse 5/16, 1060 Vienna, Austria, hereinafter referred to as "fonio", and governs the provision of an AI voice agent for interaction with humans (the “Service”) in SaaS form, as well as related Services provided by fonio.
fonio.ai Service. fonio provides the client with the fonio.ai service. fonio.ai is a Service for interacting with people via an AI voice assistant that was developed specifically for German-speaking countries (DACH). Among other things, it enables companies to create personalised assistants within minutes, answer incoming calls, schedule appointments, qualify leads and create transcripts.
SaaS – Software-as-a-Service. The fonio.ai Service is operated in the form of a "Software-as-a-Service" model. fonio provides the client with the server-side infrastructure. The client is responsible for the client-side infrastructure.
Validity
Contractual basis. fonio concludes contracts and provides Services exclusively on the basis of the written offers prepared by fonio, as well as the then-current version of any descriptions of Services included in the offer (e.g. individual documents or general brochures), price lists and this SaaS contract.
The descriptions of Services, price lists and the SaaS contract apply, insofar as they are not merely project-specific (e.g. individual documents), to all legal relationships between fonio and the client and thus automatically form the basis for all further contracts concluded between fonio and the respective client in their most current version from the first contract conclusion onwards, even if these price lists, product descriptions and the SaaS contract are no longer expressly referred to.
Future changes. Changes to the descriptions of Services, price lists and the SaaS contract of fonio will be communicated to the client in writing and shall be deemed agreed if the client does not object within two weeks. From the date of validity of the new agreement, the changes to the SaaS contract shall also apply to all other contracts still in force.
Supplementary agreements. All forms of supplementary agreements, both before conclusion of the contract and during the term of the contract, must be in writing to be valid. This also applies to any deviation from the written form requirement.
Contract components on the part of the client. Specifications regarding the content of Services provided by the client shall only become part of the contract, even if fonio is aware of them, if they are integrated into the offer by fonio or otherwise expressly accepted by fonio, for example by reference to these specifications.
Legal elements originating from the client, such as general terms and conditions or contractual clauses, shall only become effective, even if fonio is aware of them, if they are accepted by fonio with an additional note expressly covering these legal texts (e.g. "Terms and Conditions accepted"). Otherwise, fonio expressly objects to the inclusion of legally binding elements of the client, such as general terms and conditions or contract clauses.
The mere acceptance of specifications regarding the content of the client's Services by fonio therefore does not constitute acceptance of the client's legal texts, even if these specifications contain legally binding elements (such as "Our terms and conditions apply").
Procedure in the event of contradictions. In the event of contradictions between the offer, any descriptions of Services (project-specific documents, general documents), any price lists and fonio's SaaS contract, these shall apply in the order specified. The more individual components therefore automatically amend the more general components of the contract.
In the event of contradictions between fonio's contract elements and the client's contract elements, all of fonio's contract elements shall take precedence.
Procedure in the event of invalidity. Should individual provisions of the contract be invalid or unenforceable, the invalid provision shall be replaced by a valid provision that comes closest to the economic meaning and purpose of the invalid provision.
Conclusion of contract
Offer by fonio. Offers made by fonio to the client, e.g. in the form of an individual offer to the client or a non-individualised offer such as an order form, catalogue, app store or web shop, are subject to change and non-binding.
Offer by the client. If the client places an order on the basis of an offer or unsolicited, i.e. without a prior offer from fonio, e.g. in the case of additional orders in ongoing business relationships, the client is bound to this order for two weeks from its receipt by fonio.
Acceptance by fonio. The contract is therefore only concluded upon acceptance of the order by fonio.
Acceptance must always be in writing, e.g. by means of an order confirmation, unless fonio indicates that it accepts the order, e.g. by taking action on the order that is apparent to the client.
Mere confirmation of receipt of the order does not constitute acceptance of the order.
Receipt. If electronic means of communication or an electronic order management system to which both parties have access are used to submit and accept offers, declarations submitted on working days, i.e. Monday to Friday, except Austrian public holidays, between 8:00 a.m. and 4:00 p.m. (CET), shall be deemed to have been received by the other party on the same day; declarations submitted outside these times shall be deemed to have been received on the next working day at 8:00 a.m. (CET).
Information for concluding contracts. The information obligations of fonio specified in § 9 (1) Z 1-4 ECG are waived.
Scope of Services, Data processing and obligations of the client to cooperate
Place of performance. The place of performance is the registered office of fonio.
Scope of Services. The scope of the Services to be provided is set out in fonio's written Service description, which is based on all components of the contract.
Information from other sources (e.g. presentation documents, websites or catalogues) not included in the offer is not part of the Service description.
The client is obliged to check the Service description for compliance with its requirements and for completeness.
After the order has been placed, changes to the Service description are only possible by mutual agreement and may lead in particular to changes in prices, deadlines and dates.
Professional Service. Unless otherwise specified in the written Service description, fonio is obliged to perform the Service professionally in accordance with the offer as at its date.
Within the framework of the written Service description, fonio has freedom of design in the execution of the Services, provided that there are several professional options for execution.
Interchangeable Services. Provided this is in line with the objectives of the order, fonio is entitled to deviate from the Service description and replace Services with other equivalent Services.
Third-party Services/products. fonio is entitled to perform the Services itself or to use components, interfaces, data, rights and other Services or products of third parties (third-party Services/products) in the performance of the Services.
Agreed third-party Services/third-party products. If the Services provided by fonio include specifically defined components, interfaces, data, rights or other Services or products from third parties as agreed, then these components, interfaces, data, rights and other Services or products from third parties constitute agreed third-party Services/third-party products.
In this case, fonio's contractual obligation consists exclusively of the professional commissioning, coordination and processing, but not the professional execution of the agreed third-party Services/products.
The following are considered agreed third-party Service providers or third-party products in particular:
- Hetzner Online GmbH, Industriestr. 25, 91710 Gunzenhausen, Germany
- Twilio Ireland Limited, 25-28 North Wall Quay, D01 H104 Dublin, Ireland
Integration of Services, products, data and rights by the client. If, within the scope of hosting by fonio, the client processes or integrates components, interfaces, data, rights or other Services or products of the client or third parties, fonio is only the host provider with regard to these Services, products, data and rights.
Divisible Services. In the case of divisible Services, fonio is entitled to make partial deliveries.
Dates and deadlines. Dates or deadlines specified by fonio are non-binding unless they are expressly marked as binding.
Contract term. Contracts for an indefinite period may be terminated at any time subject to compliance with any minimum term.
Termination of the contractual relationship. Upon termination or expiry of the contractual relationship, fonio shall immediately terminate the client's access to the fonio.ai Service and the associated Services.
Termination of the contractual relationship for good cause. fonio is entitled to terminate the contractual relationship with the client and the client's access to the fonio.ai Service and associated Services at any time for good cause. The following breaches of contract and obligations in particular constitute good cause:
- Violation of contracts, guidelines and instructions from fonio
- Transfer of the fonio.ai Service or access to this Service to unauthorised third parties
- Use of the fonio.ai Service or the underlying infrastructure for unlawful, illegal or unauthorised purposes or in a manner not intended
- Causing disruptions to the fonio.ai Service or the underlying infrastructure
- Misconduct towards fonio employees
Unforeseeable or unavoidable events. Unforeseeable or unavoidable events – in particular, default by the client in fulfilling its obligations and delays at fonio or fonio's subcontractors that are unforeseeable and unavoidable for fonio – extend deadlines or postpone dates by the duration of the unforeseeable and unavoidable event plus the duration of the organisational measures necessary in such a case. fonio must inform the client of this in writing.
Client's obligations to cooperate. The client must provide fonio with all information in writing without delay, without being asked to do so and in a form that can be further processed and must provide all Services necessary for fonio to perform its Services.
This includes, in particular, the provision of a contact person for contract processing, the provision of documents, materials and equipment, coordination of order details and the acceptance (approval) of partial Services and Services.
If the need for the client to provide information or Services only becomes apparent during the provision of Services by fonio, the client must submit this information or provide these Services without delay.
The client must check the suitability, accuracy and legality of the information and Services provided by them.
In addition, the client must comply with the system requirements for the use of the fonio.ai Service provided by fonio.
The client shall be liable for all damages resulting from defective, delayed or omitted cooperation on the part of the client, and in particular for any additional expenses incurred by fonio as a result. If fonio is unable to perform the Services as agreed due to inadequate, delayed or omitted cooperation on the part of the client, fonio shall also be entitled, without prejudice to other rights, to interrupt performance of the Service, prioritise other client work, and resume performance for the client only after completion of such other Services, provided that the client has fulfilled its obligations to cooperate by that time, whereby all dates and deadlines shall be postponed.
If claims are made against fonio by third parties due to a legal violation in connection with information or Services provided by the client, the client shall also indemnify and hold fonio harmless and support fonio in defending against any claims by third parties.
If fonio receives a notification that the data provided by the client infringes the intellectual property rights of third parties, fonio reserves the right to immediately suspend the fonio.ai Service provided by fonio to the client and to take appropriate measures.
Scope of fonio's verification obligations. fonio shall perform the Services in such a way that the Services provided by fonio are not unlawful in themselves (e.g. use of a copyright-protected work without the consent of the author).
However, fonio is not obliged to legally review the Services provided by fonio for any infringement of third-party rights or for any legal violations that may arise from the type of use planned by the client (e.g. the use of a graphic as a logo).
Scope of the client's review obligations. The client must carry out legal reviews to ensure that fonio's Services meet all of the client's legal requirements, in particular with regard to administrative, criminal, competition, trademark, labelling, design protection, copyright, personal rights and data protection law, or have such reviews carried out by a suitably qualified legal expert.
Rights to the Services. In principle, all rights to the agreed Services are vested in fonio or fonio's licensors. The client shall be granted the right to use the Services to the extent agreed with fonio or predefined by the licensors after full payment of the agreed fee.
If the scope of the licence has not been agreed, it shall include non-exclusive use for the client's own purposes within the client's company, without the right to sublicense or pass on to third parties (or affiliated companies), whereby the right to edit shall be limited to the minimum required by law.
In the case of additional functions and modules created individually for the client that are related to the fonio.ai Service provided by fonio, the client receives a non-exclusive right to use the Service for their own use within the client's company during the term of the contract.
Third-party rights. The client is aware that fonio's Services are often based on works or Services of third parties with a wide variety of licence conditions. The client must comply with these licence conditions for Services or works of third parties that form part of fonio's Services or works.
Open source. Insofar as fonio's Services are based on open source licences that require works based on them to also be open source, fonio is entitled to publish the works created for the client as open source without consultation.
Right to the end product. The client only has the right to use the Service in the agreed form as an end product, but not to receive the basic materials, working aids, interim results, etc. necessary for the creation of the Services.
Unless otherwise agreed, fonio is also under no obligation to retain these basic materials, working aids, interim results, etc. after completion of the work.
Right of control. fonio is entitled to monitor compliance with the terms of use by means of technical measures.
Monitoring by technical means is permitted on an ongoing basis. In doing so, fonio is entitled to transfer the data necessary to monitor compliance with the licence, such as device data, user names or login data, to a fonio monitoring system.
fonio is obliged to maintain strict confidentiality in all cases. fonio is not entitled to use the data for other purposes and is obliged to delete the data immediately after the licence check, at the latest after one week.
Reference. fonio is entitled to refer to all Services created by fonio for the client on fonio and, if applicable, to another author and, subject to written revocation at any time, to use data such as the client's name and logo, project description, project images and similar as a reference or as an indication of the business relationship with the client, without the client being entitled to any remuneration for this.
Service level
Standard Service level. This Service level agreement defines fonio's standard Service level. Unless additional Service and maintenance Services or similar have been agreed, these are not owed.
Training/consulting. This Service level agreement does not cover the provision of training, i.e. more extensive or recurring explanations due to knowledge deficits on the part of the client, or individual consulting. However, these can be ordered separately from fonio for a fee.
Third-party applications/products. fonio does not offer support and/or consulting Services for third-party applications, e.g. integrated third-party products.
Communication and support
Help pages/documentation. fonio offers solutions to frequently asked questions about the fonio.ai Service provided by fonio at https://www.fonio.ai/blog-tags/guide-article. The client is obliged to use this form of support, especially for questions about functions (including call forwarding to the AI number, the perfect prompt) and other support options.
Communication. Communication with fonio takes place exclusively in writing via email at info@fonio.ai.
Service hours. fonio's Service hours are Monday to Thursday from 8 a.m. to 5 p.m. (CET) and Fridays from 8 a.m. to 12 p.m. (CET) (except on public holidays in Austria).
Languages. Communication with fonio can take place in both German and English.
Maintenance
Maintenance intervals. Maintenance intervals are required for regular scheduled and unscheduled maintenance work on the systems of fonio and its suppliers, which is necessary to ensure ongoing operation and to carry out updates or improvements. Updates by fonio are not carried out at regular or fixed maintenance intervals. As a rule, system maintenance that requires a temporary Service interruption is carried out by fonio at a time that has the least impact on clients, where possible.
Information and deployment. fonio will inform the client as soon as possible about the planned system maintenance, specifying the expected duration of the Service interruption and the time at which it will take place.
System maintenance and update tasks that do not require Service interruption can be carried out at any time, as they do not affect the availability and use of the system by the client.
Extraordinary maintenance. In urgent cases (troubleshooting, prevention of imminent attacks, etc.), fonio may carry out maintenance/deployment measures without prior notification to the client.
Further development and updates
Further development. The fonio.ai Service provided by fonio and the underlying infrastructure are subject to ongoing technical and content-related development.
In doing so, fonio is entitled to introduce new functions, formats and content as well as to change or discontinue existing functions, formats and content. fonio will inform the client of any significant changes or discontinuations to the Service offering at the earliest possible time.
Individual adjustments for individual clients are possible after consultation with and approval by fonio, provided that the client bears the development costs and additional infrastructure costs.
If suggestions from the client are taken up and implemented as part of the further development of the fonio.ai Service provided by fonio, the client shall transfer any associated rights of the client comprehensively, but not exclusively, to fonio so that fonio can make the result available to all clients of fonio.
Updates/upgrades. If fonio equips existing modules with new or modified functions or develops new modules, fonio is entitled, at its own discretion, to offer these modules as free or paid add-on options.
System requirements. In the course of further development and the introduction of new functions and modules, technical requirements may necessitate changes to the system requirements for using fonio's Services. The client can enquire about these changes at info@fonio.ai.
Troubleshooting and reporting
Error classes. The parties agree on the error classes listed below for the classification of errors and programming:
Class 1. Use of the fonio.ai Service is not possible or is unreasonably restricted. The error has a serious impact on essential functions and/or the security of the Service; the Service cannot continue to be used.
Class 2. The intended use of the fonio.ai Service is seriously restricted. The error has a significant impact on the functions and/or security of the fonio.ai Service but allows continued use of the Service.
Class 3. The intended use of the fonio.ai Service is slightly restricted. The error has an insignificant impact on the functionality and/or security of the fonio.ai Service and allows continued use of the Service with only minor restrictions.
Class 4. The intended use of the fonio.ai Service is possible without restriction. The error has no or only a negligible impact on the functionality and/or security of the fonio.ai Service. The use of the fonio.ai Service remains possible without restriction.
Reporting. If the client discovers faulty behaviour, this must be reported to fonio immediately via info@fonio.ai. The client's report must contain a description of the problem, including the operating system and version, the model name of the device, the time at which the error occurred, the components affected, the general conditions, the economic impact and, if possible, a screenshot and/or video of the malfunction.
Response and rectification time. A period of 24 hours for class 1 errors, 72 hours for class 2 errors, 4 weeks for class 3 errors and 8 weeks for class 4 errors is considered a reasonable response time until the start of error rectification or damage repair.
The times refer to fonio's Service hours at the time the contract was concluded or to Service hours that were later changed by mutual agreement.
Fault rectification or damage repair must be carried out using resources appropriate to the fault class that enable rapid processing and must be continued without unnecessary delay from the start of fault rectification or damage repair until completion.
Reliability
Guaranteed uptime. Insofar as fonio's Services include the hosting of applications, fonio owes 99% availability based on the calendar year.
Permissible unavailability. Periods during which the Services are unavailable in a month due to planned maintenance work and periods during which the Services are unavailable due to circumstances beyond fonio's reasonable control are considered permissible unavailability.
Scheduled maintenance work is defined as the longest maintenance work in a month, of which the client has been informed at least five days in advance. All other maintenance work counts as unavailability.
Circumstances beyond fonio's reasonable control include, in particular: force majeure, official measures, floods, fires, earthquakes, civil unrest, acts of terrorism, strikes or other industrial action, attacks, failures or delays in telecommunications, internet Service providers or hosting facilities related to hardware, software or power supply systems not owned by fonio.
Actual uptime. The basis for calculating actual uptime is therefore the total time minus the permissible downtime.
Shortfalls. In the event that the actual uptime percentage falls below the guaranteed uptime percentage, the client is entitled to request a credit note for twice the percentage amount of the actual shortfall. This percentage amount will be deducted from the monthly base fee.
Infrastructure monitoring
Monitoring. fonio has set up its own monitoring system to monitor its Services. The monitoring system sends notifications to fonio administrators 24/7 in the event of important infrastructure messages. fonio makes every effort to remedy any failures immediately.
Other security measures. In order to protect fonio's systems and stored data records from unauthorised access by third parties as best as possible, fonio takes appropriate precautions, which fonio can provide to the client upon request.
Data processing
GDPR. This data processing agreement sets out the conditions for the processing of personal data by fonio with the client's approval in accordance with the General Data Protection Regulation (GDPR). fonio acts as a processor within the meaning of the GDPR.
Nature, purpose, subject matter and legal basis of data processing. Fonio's Services are described in the relevant contracts or in the offers submitted by fonio to the client.
In the course of providing its Services, the client provides fonio with the personal data necessary for the provision of Services in a manner appropriate to the respective case. For example, by electronic or physical means, through discussions and analyses, the performance of other contractually regulated activities, verbally or via Service tools.
The processing of personal data may take place in particular through organisation, arrangement, storage and, if necessary, adaptation or modification, retrieval, linking, restriction, deletion, combination, copying, hiding, connection, analysis, reading, receiving, sending and updating, insofar as this is necessary for the provision of the agreed Services.
The purpose of the processing is to provide the contractually agreed Services to the client.
Personal data concerned and category of data subjects. Within the scope of the agreed Services, the personal data required for the provision of Services may be processed. In particular, this may include the following data:
- Audio voice data and associated personal data transmitted verbally
- Metadata
- Contact data
- Data relating to Service quality
The client acknowledges that fonio has no influence on the categories of personal data processed within the scope of Service provision. This applies in particular to the possible transmission of special categories of personal data (Art. 9 GDPR).
In principle, all categories of data subjects necessary for the provision of the agreed Services are covered by the processing. In particular, this includes the following categories of data subjects:
- Existing or potential clients of the client
In view of the nature of the agreed Services, the client acknowledges that fonio is largely unable to verify or maintain the above list of categories of data subjects. The client therefore undertakes to inform fonio of any necessary changes to the above list.
Fonio will process the client's personal data with regard to all data subjects listed above in accordance with the agreed Services. If changes to the list of categories of data subjects necessitate changes to the agreed processing, the client will issue fonio with additional instructions accordingly.
Conditions of data processing. Fonio undertakes to comply with all provisions of the GDPR throughout the entire provision of Services.
Fonio undertakes to process personal data only on written instruction in the form of a contract with the client. Any deviations from these instructions require the prior written consent of the client.
Fonio processes personal data in accordance with the principle of data minimisation pursuant to Art. 5 (1) (c) GDPR and therefore only to the extent necessary to provide the agreed Services.
Access to the client's personal data is granted exclusively to persons who require such access on the basis of contractual or legal provisions.
All persons on the part of fonio who have access to the client's personal data are obliged to maintain confidentiality. In particular, the confidentiality obligation of persons entrusted with data traffic remains in force even after the end of their employment and departure from fonio.
Fonio is obliged to take and maintain all appropriate and reasonable technical and organisational measures to ensure the availability, confidentiality and integrity of personal data for authorised persons. A list of the measures implemented by fonio can be requested from info@fonio.ai. The measures listed there are to be understood as a minimum requirement, which fonio may extend in order to further comply with the current state of the art.
Fonio supports the client in complying with its obligations under the GDPR, in particular with regard to the rights of data subjects.
Unless prohibited by law, fonio will immediately inform the client if it receives information or a notification from a data subject, the data protection supervisory authority or any other authority or third party, and this information or notification is directly or indirectly related to the processing of personal data within the scope of this data processing agreement.
Fonio shall support the client in complying with the GDPR with regard to Article 32 (security of processing) and Article 36 (consultation with the data protection authority prior to carrying out high-risk processing).
Fonio shall inform the client immediately, but no later than within 24 hours, if the personal data provided to it has been used unlawfully and/or if the data subject is at risk of harm. It shall provide the client with all necessary information so that the client can fulfil its reporting obligations to the data subjects in accordance with data protection laws.
In connection with the commissioned data processing, fonio shall support the client – to the extent required by law – in creating and updating the record of processing activities, in carrying out the data protection impact assessment and, where applicable, in prior consultations with the data protection supervisory authority within the meaning of Article 36 GDPR, and shall provide all necessary details and information. In addition, fonio will maintain its own processing directory and, where necessary, carry out data protection impact assessments and appoint a data protection officer.
Any transfer of personal data by fonio to a third country or an international organisation shall be carried out in accordance with Union or national law and must, in particular, comply with the provisions of the GDPR.
Sub-processors. Depending on the contractually agreed Service provision, various sub-processors are involved in Data processing.
The use of sub-processors may result in data being transferred to third countries. Fonio ensures that data transfers to third countries are always possible in accordance with the GDPR. The client shall check whether the transfer of personal data to third countries in accordance with Articles 44-49 GDPR is feasible in compliance with the GDPR in the course of the individual use of the Services offered by fonio.
A list of the sub-processors approved by the client upon conclusion of the agreement is included in Appendix 1.
A contract in accordance with Art. 28 (4) GDPR must be concluded between fonio and the sub-processor. The sub-contract must take into account the data protection provisions to the same extent as agreed between the client and fonio in this agreement, and data processing may only be carried out for the purpose specified in the separately commissioned Service.
Fonio must regularly check that the sub-processors comply with the (data protection) obligations under this data processing agreement. If, in the course of this review, fonio becomes aware that the sub-processor is not fulfilling or is insufficiently fulfilling the data protection obligations incumbent upon it under this data processing agreement, it shall inform the client of this immediately and without being asked to do so.
Fonio shall inform the client of any planned changes to the list of sub-processors commissioned to provide the Service by email to an email address specified by the client. If the client does not provide such an address, the email address of the person at the client with whom the main agreement was negotiated shall be used. If this address is no longer available, fonio shall use the email address published by the client on its website for general contact purposes. The client may object to the change in writing, whereby an email also fulfils the written form requirement. If the client has not objected to the sub-processor within 14 calendar days of the information being sent, the sub-processor shall be deemed to have been approved. In the event of an objection, the client and fonio shall contact each other to resolve the conflict, whereby an extraordinary right of termination of the main agreement shall be agreed for both parties in the event that the conflict cannot be resolved.
Audit and compliance. Fonio shall allow the client or its designated representatives to carry out audits and inspections to verify compliance with the provisions of this data processing agreement. Such audits shall be carried out with reasonable advance notice and shall not unreasonably interfere with fonio's operations. The client is aware that any inspections of sub-processors must be coordinated directly with these sub-processors and that fonio has no influence on the provisions applied in this context.
Fonio shall provide the Client with all necessary information and cooperate with the Client to demonstrate compliance with the GDPR.
Term and termination of data processing. This data processing agreement shall remain in force for the duration of the data processing activities and shall end upon completion of the Service provision or as otherwise agreed by the parties.
Upon termination of the data processing agreement (or at any time prior to this upon request by the client), fonio shall, at the client's discretion, either destroy the processed personal data (including any copies) itself or transfer it in its entirety to the client, provided that this does not conflict with any legal or contractual obligation to retain it. Until the data is deleted or returned, the processor shall continue to ensure compliance with these clauses. If the client does not comment on the procedure, fonio shall destroy the data six months after termination of the agreement, subject to any legal or contractual obligations to retain it.
Fonio is equally obliged to ensure that any sub-processors destroy or transfer the data.
Data protection information relating to this agreement
Data from this contract. Within the scope of providing the fonio.ai Service made available by fonio, any licence control and product optimisation (development of new products and improvement of existing products), fonio collects data from the client and its employees in the form of information about data usage, system statistics, computer and network data in accordance with Art. 6 (1) (b) GDPR. In addition, the client's personal data is processed for the purpose of fulfilling legal obligations in accordance with Art. 6 (1) lit. c GDPR (e.g. invoicing). In accordance with Art. 6 (1) lit. f GDPR, fonio processes the client's personal data for the purpose of documenting the business relationship.
Mandatory provision of data / consequences of non-provision. There is no legal or contractual obligation to provide the client's personal data. However, if the client does not provide fonio with the personal data required for the performance of the contract before the contract is concluded, this will result in fonio being unable to submit an offer to the client or in the contract between fonio and the client not being concluded.
Storage period. The client's personal data will be stored for at least seven years for the purpose of fulfilling legal obligations in accordance with Section 132 (1) of the Federal Tax Code (BAO). In addition, the client's personal data will be stored for up to a maximum of ten years after completion of the orders for the purposes of product development, documentation and the fulfilment of legal obligations.
If no contract is concluded between fonio and the client, the client's personal data will be stored for an estimated twelve months for the purpose of documenting the business relationship.
Disclosure. All data is subject to the agreed or statutory obligation of confidentiality and the protection of personal data. The client's data will be disclosed in particular to typical business recipients such as banks, tax advisors, lawyers, etc., or only on a legal basis or in consultation with the client.
Data will only be disclosed to other recipients on a legal basis or in consultation with the client.
Global processing. Where possible, fonio processes the client's personal data exclusively within the European Union.
The client's personal data will only be processed or transferred to third countries
- if this is necessary for the performance of the contract between fonio and the client (Art. 49 (1) (b) GDPR), or
- if this is necessary for the implementation of pre-contractual measures at the request of the client (Art. 49 (1) (b) GDPR), or
- after informing the client of the possible risks of data processing by fonio in the third countries where data processing is planned and with the client's express consent in accordance with Article 49(1)(a) GDPR.
Right to object. The client has the right to object to the processing of their personal data in accordance with Art. 6(1)(f) GDPR. In the event of an objection, their personal data will no longer be processed for the purpose of direct marketing.
Rights of data subjects. The client has the right to access, rectify and erase their personal data, the right to restrict data processing, the right to data portability and the right to lodge a complaint with the data protection authority.
Duties of loyalty & non-solicitation
Duties of loyalty. The contracting parties are obliged to promote the reputation of the other contracting party and, in particular, not to criticise the other contracting party to third parties. This obligation shall continue to apply beyond the end of the contract.
Trade secrets. A trade secret is information that
- is secret because it is not generally known or readily accessible to persons within the circles that usually deal with this type of information, either in its entirety or in the precise arrangement and composition of its components,
- is of commercial value because it is secret, and
- is subject to reasonable confidentiality measures appropriate to the circumstances by the person who exercises lawful control over this information.
Trade secrets include, in particular, fonio's business ideas and strategies and their implementation, the details of the contracts concluded between the contracting parties and their subject matter, and, in the case of fonio's Services, in particular their architecture, source code, developer and administration documentation, as well as all other data from which the function of the software or relevant parts of the software can be derived, and security-related data.
The client is obliged to ensure the confidentiality of trade secrets by means of technical and organisational measures and to prevent these trade secrets from being acquired, used or disclosed without authorisation.
Use by the client is only permitted to the extent agreed.
Non-solicitation clause. The client undertakes not to solicit any fonio employees. This obligation shall remain in force for three years after the end of any contract. In the event of a breach of these obligations, the client shall pay a contractual penalty equal to the gross annual salary of the solicited employee.
Remuneration
Prices. All prices are quoted in euros plus VAT from fonio's place of business or office for contracts with entrepreneurs.
Billing method. Services are generally only provided after full payment has been made.
Flat-rate billing. In the case of flat-rate billing, this covers all Services necessary for the performance of the agreed Services. This does not include the costs of unforeseeable events, additional costs due to the client's non-contractual cooperation, or additional costs due to hidden defects in the Services provided.
Billing based on actual expenditure. In the case of billing based on actual expenditure, billing is based on actual expenditure. Billing based on actual expenditure applies if the expected expenditure is stated as approximate, probable or estimated.
Billing within the framework of an hourly pool. If an hourly pool is agreed for a specific period, this serves to ensure a minimum availability of fonio for the client during the respective period.
In the event of unused hours, these hours are therefore not transferable to subsequent periods, but expire without triggering any entitlement to a price reduction.
If the hourly quota is insufficient, fonio must notify the client as soon as possible. Exceeding the hourly quota is only permitted with the client's consent, unless the excess is necessary to take urgent measures to prevent damage to the client and it is not possible to obtain the client's consent in good time.
Additional Services. All Services provided by fonio that are not expressly covered by the agreed fee, such as additional Services agreed at a later date, shall be remunerated separately.
Partial Services. In addition, fonio is entitled to charge for partial Services. The individual items in the Service description are considered partial Services in any case.
Advance payment of costs. In addition, fonio is entitled to demand advance payments from new clients to cover its own expenses in the full amount of the next partial Services to be rendered in the event of invoicing agreed third-party Services, in the event of apparent economic problems, in the event of past payment defaults and in the event of apparent unwillingness to pay on the part of the client.
Credits in the event of guaranteed availability not being met. If the client wishes to receive a credit in the event of guaranteed availability not being met, they must request this via the support email address within 60 days of becoming aware of fonio's failure to meet the guaranteed operating time, otherwise the claim will lapse, and declare that it will be offset against the basic fee on the next invoice. Any other use of the credit note is excluded.
Price adjustment. In the case of contracts for an indefinite period and contracts with automatic renewal of the contract term, fonio is entitled to make an appropriate annual price adjustment taking into account the consumer price index.
Fonio is also entitled to make an appropriate price adjustment after conclusion of the contract if the costs of the Services increase by more than 3% without fonio being able to influence this. Fonio must provide evidence of the cost increase and demonstrate that it was unable to influence it.
Unjustified withdrawal. In the event that the client withdraws from their order in whole or in part without gross negligence or wilful misconduct on the part of fonio, fonio shall nevertheless be entitled to the agreed fee. In this case, fonio shall only be required to offset savings from purchases not yet made. The same applies if fonio withdraws from the contract for an important reason within the client's sphere of influence.
Payment
Due date. fonio's invoices are due without any deductions from the invoice date. Services are generally only provided after full payment has been made.
Payability. fonio invoices are payable within 7 days of receipt.
Payability for online transactions. For online transactions, fonio invoices are payable upon placement of the order.
Bank transfer. Payment must always be made by bank transfer to the bank account. Cash payments are not accepted.
Other payment methods. The client is also entitled to use all other payment methods offered by fonio. The amount will be debited at the time of payment by the client.
Agreed third-party Services. fonio is entitled to commission the third-party Service at its own discretion, either in its own name or in the name of the client, and either for its own account or for the account of the client.
If fonio concludes the contract in its own name and/or on its own account, this is done exclusively in the interest of the client for the purpose of simplified contract and payment processing.
Retention of title. Until full payment has been made by the client, retention of title in favour of fonio to the goods delivered by fonio shall be deemed to have been agreed until the purchase price and all associated interest and costs have been paid in full. In the event of default, fonio shall be entitled to assert rights arising from the retention of title. In this case, the client agrees to the collection of the goods by fonio. The assertion of retention of title by fonio does not result in withdrawal from the contract, unless fonio expressly declares its withdrawal from the contract.
In the event of resale of the goods by the client, the client assigns its claim against the buyer to fonio for the purpose of security. fonio is entitled to notify the buyer of this assignment.
Prohibition of offsetting and retention. Even in the case of related claims, the client is not entitled to offset its own claims against claims of fonio, unless the client's claim has been recognised in writing by fonio or established by a court of law. A right of retention in favour of the client is excluded.
Default of payment. In the event of late payment, the statutory interest rates applicable between entrepreneurs shall be payable, but at least 9% per annum. The client shall bear all costs and expenses associated with the collection of the claim, in particular collection fees or other costs necessary for appropriate legal action.
Continued default of payment. After unsuccessful reminder of the client with a grace period of at least 7 days, fonio is entitled to immediately invoice and demand payment for all Services and partial Services already rendered, including those rendered under other contracts concluded with the client, and to temporarily suspend the provision of unpaid Services until all outstanding fee claims have been paid in full.
After another unsuccessful reminder sent directly to the client's management and setting a grace period of at least 7 days, fonio is entitled to withdraw from all contracts and demand compensation for lost profits. This also entitles fonio to refrain from performing or to suspend Services that have already been paid for.
Irrespective of these options, fonio may, of course, also take legal action immediately after the due date.
Payment by instalments. If fonio and the client conclude an instalment payment agreement, default shall be deemed to have occurred if even one instalment is not paid on time.
Expiration of credits. The client is entitled to use the Services purchased from fonio, in particular credits, within 24 months of the purchase date. After this period, unused Services expire without replacement.
Restrictions on use and responsibility of the client
Prohibition of cold calling
The client is prohibited from using the fonio.ai Service provided by fonio or the infrastructure provided by fonio (including telephone numbers) to carry out cold calling (unsolicited advertising calls).
Restrictions on the use of telephone numbers
If fonio provides the client with a telephone number, this may only be used for incoming (inbound) calls.
Outgoing calls via numbers provided by fonio are only permitted if the necessary data (in particular complete company or personal data) has been transmitted to fonio in advance and the phone number has been registered to this data.
Permitted use of AI.
The use of the fonio.ai Service, including all AI instances configured or used by the client, is only permitted for purposes that are carried out in the course of normal business activities and in accordance with applicable legal provisions.
Liability for AI content.
The client is solely responsible for all content generated, distributed or processed through their use of the fonio.ai Service and is fully liable to third parties and fonio.
Responsibility for sensitive data.
The client is aware that when using the fonio.ai Service, they must take care to consider what information they transmit to the AI.
In the case of sensitive processes (e.g. querying order data, access data or other security-relevant information), the client is obliged to incorporate appropriate security measures such as security queries or multiple authentications into the dialogue flow.
Additional terms and conditions for partners.
For clients who use the fonio.ai Service within the framework of a partnership, the respective agreed partner terms and conditions apply in addition.
Liability
Classic contract for work and Services. In the case of classic work performance, fonio is liable for the achievement of objectives.
Purchase of resources. In the case of the mere purchase of resources such as working time, the client is responsible for achieving the objectives. fonio is only liable for the orderly execution of the specific Services commissioned.
Interference by the client. If the client interferes with fonio's Services in an unauthorised manner or makes undocumented changes that are no longer easily traceable by fonio, they shall be liable for the additional expenses incurred by fonio as a result, e.g. for completion, review, documentation, defect identification, defect assignment, defect rectification.
Obligation to give notice of defects. After fonio has requested interim acceptance, after handover and after the start of live operation, the client must accept ("approve") the Services handed over or to be accepted in writing within 8 days at the latest or give written notice of any defects or damage.
In the case of an interim acceptance, fonio may only continue its work after the interim acceptance/“approval” has been granted. If acceptance or notification of defects is not made in good time, the Services shall automatically be deemed to have been accepted by the client.
Hidden defects or damage that only become apparent after 8 days, but within the open guarantee, warranty or compensation periods, must also be reported by the client within 8 days of becoming apparent.
The obligation to give notice of defects applies to all defects or damage which the client should have detected with the diligence of a prudent businessman during appropriate inspections. Due to the particular importance of interim acceptance for the avoidance of defects which then extend through all further performance steps, the inspection must correspond to a final, detailed and particularly careful inspection. Upon handover, the inspection must correspond to an initial but nevertheless thorough inspection. Upon commencement of live operation, the inspection must again correspond to a final, detailed and particularly careful inspection due to the special importance of the commencement of live operation in order to avoid damage during operation.
The client's complaint must describe the defect or damage in detail and in a comprehensible manner. In the case of defects or damage that do not occur continuously, the exact times and conditions under which the defects or damage occur must be stated. The client must enable fonio to take all measures necessary to investigate and remedy the defects or damage. If the client does not report the defects in good time, the client shall be excluded from asserting warranty, guarantee and damage claims as well as claims based on other liability regulations, in particular recourse claims.
Guarantee. If parts of fonio's Services are covered by a guarantee provided by a third party, this guarantee must be asserted directly with the third party (e.g. manufacturer's guarantee).
In the event of a guarantee commitment by fonio, the period for asserting the guarantee claim shall commence upon delivery. The guarantee claim shall expire six months after the client becomes aware of the occurrence of the guarantee case, but no later than the expiry of the guarantee period. If the content of the guarantee is not specified in the guarantee commitment, fonio shall be liable for the characteristics normally expected.
Warranty. For Services concluded on the basis of this SaaS contract, the client has a right to rectification of defects in accordance with the Service level implemented in this contract. For Services that were not concluded on the basis of this SaaS contract or for Services that fonio provides for the client after termination of this SaaS contract, the right to warranty and the right to warranty recourse shall be limited to six months from delivery.
The client is entitled to improvement or replacement or, in the case of minor defects, to a price reduction or, in the case of major defects, to rescission at fonio's discretion. The rectification of the defect does not extend the warranty period nor does it restart the warranty period for the part of the Service affected by the rectification of the defect.
Obligation to update. The obligation to update pursuant to Section 7 VGG is excluded.
Error, reduction by more than half. The right to contest on the grounds of error and reduction by more than half is excluded.
Damages and other claims. Claims for damages and claims based on other liability provisions, in particular recourse claims, by the client are excluded, unless they are based on gross negligence or intent on the part of fonio.
Such claims shall expire six months after knowledge of the damage and the party responsible for the damage; in any case, however, after three years from the date of the infringing act.
Claims based on personal injury and other non-discretionary liability provisions are excluded from this exclusion of liability.
Liability in the event of non-compliance with the guaranteed operating time. Liability in the event of non-compliance with the guaranteed operating time is limited to the issuance of a credit note in the agreed form and amount, unless this is based on intent or gross negligence.
Liability for agreed third-party Services. Third parties who provide the agreed third-party Services are not vicarious agents of fonio, do not act in pursuit of fonio's interests and are therefore not included in fonio's area of risk.
For the agreed external Services themselves, but not for the professional commissioning, coordination and processing thereof, any fault-based liability on the part of fonio is thus additionally reduced to negligence in selection, and any no-fault liability on the part of fonio is excluded.
If the third-party Services are used on the instructions of the client, i.e. selected by the client, then any liability on the part of fonio is excluded.
Liability for the integration of third-party Services by the client. fonio accepts no liability for third-party Services that have been integrated by the client. However, if fonio is informed of the illegality of these third-party Services, fonio is entitled and legally obliged to deactivate or delete these third-party Services or to terminate the contract with the client for good cause. The client shall indemnify and hold fonio harmless with regard to these third-party Services.
Liability for the use of third-party Services and components. Insofar as fonio builds on third-party Services and components as agreed, any no-fault liability on the part of fonio for the Services and components of these third parties is excluded and any fault-based liability is additionally reduced to negligence in selection.
Liability for the integration of Services, products, data and rights by the client. fonio accepts no liability for components, interfaces, data, rights or other Services or products of the client or third parties that are processed or integrated by the client. However, if fonio is informed of the illegality of the components, interfaces, data, rights or other Services or products of the client or third parties, fonio is entitled and legally obliged to deactivate or delete these components, interfaces, data, rights or other Services or products of the client or third parties or to terminate the contract with the client for good cause. The client shall indemnify and hold fonio harmless in this regard.
Liability for free Services. Insofar as fonio provides Services or parts of Services free of charge, any liability for these parts of the Service is excluded.
Protective effect in favour of third parties. It is expressly agreed that this contract does not have any protective effect in favour of third parties.
Burden of proof. A reversal of the burden of proof to the detriment of fonio is excluded. In particular, the existence of the defect at the time of delivery, the time of discovery of the defect, the timeliness of the notice of defect and the existence and degree of fault must be proven by the client.
Grace period. In the event of non-performance of the contract in accordance with the agreement, the client shall only be entitled to assert claims if it has granted fonio a reasonable grace period of at least fourteen days in writing. This also applies to the termination of the contract for good cause.
Withdrawal from the contract. Withdrawal from the contract by the client must be declared in writing by registered letter.
Final provisions
Applicable law. All legal relationships and matters between the client and fonio shall be governed exclusively by Austrian law, excluding international referral rules.
Place of jurisdiction. The place of jurisdiction for all disputes between fonio and the client shall be the competent Austrian court for Vienna. However, fonio shall also be entitled to bring legal action at the general place of jurisdiction of fonio and the client.