Terms of Service

These Terms of Service (Terms) apply to all contracts between FDM Software GmbH (“FDM”) and its customers on the use of the web-based software-as-a-service platform Entgelt-Transparenz.at (“Platform”), including all modules, add-ons, interfaces, documentation and support services.

The Platform is aimed exclusively at entrepreneurs within the meaning of § 1 of the Austrian Consumer Protection Act (KSchG) and at legal entities under public law (“Customer”). Contracts with consumers within the meaning of the KSchG are excluded. On registration, the Customer confirms that it acts as an entrepreneur. FDM is entitled to request evidence of entrepreneur status (in particular a company register extract or VAT number). If it turns out that the Customer is a consumer, FDM is entitled to withdraw from the contract.

General terms and conditions of business or purchase of the Customer do not become part of the contract, even if FDM does not expressly object to them. Deviating agreements require text form (email is sufficient).

In case of contradictions, the following order of precedence applies: (1) expressly agreed individual agreements or enterprise contract, (2) in data protection matters the data processing agreement under Art. 28 GDPR (“AVV”), unless an expressly deviating individual data protection agreement has been concluded, (3) these Terms, (4) service description and methodology notes (Annex 1), (5) documentation and manual.

FDM provides the Platform to the Customer for use via the internet for the term of the contract. The feature scope results from the booked plan, the service description or order page applicable at the time the contract is concluded and – for individually agreed services – the respective offer.

The Platform is a tool for organisation, calculation and documentation. It is not a legal, tax or auditing service and does not replace such advice. FDM does not carry out any legal review of the Customer’s data, classifications, evaluations or Results and does not owe any particular legal, economic or regulatory outcome (in particular not the fulfilment of the Customer’s statutory reporting, information or transparency obligations).

What is owed is the provision of the agreed feature scope in its respective current version. Calculation methods, technical explanations and technical notes may be described in the product documentation. Unless expressly agreed otherwise, consulting, training, data cleansing, setup, individual adaptations and integrations are not part of the contract and are offered separately.

Legal status. The Platform takes into account the legal bases designated in it as of the legal status stated in each case. Statutory requirements, official specifications and their interpretation may change. The Customer is obliged to review the Results, or have them reviewed, against the law applicable to it before using them in a legally binding manner.

Methodology. Calculations and analyses are based on the data, allocations, evaluations and configurations provided by the Customer and on the calculation parameters used in the Platform. Where parameters are configurable, the Customer is responsible for selecting them appropriately. Statistical notes, root-cause analyses and justification notes of the Platform do not constitute a legal assessment.

Responsibility for data. The accuracy, completeness, timeliness, lawfulness and admissibility of the Customer data lies exclusively with the Customer. Results are only as reliable as the underlying Customer data and settings. Errors in import files, allocations to jobs and categories, full-time equivalents, pay components, gender information or reference dates lead to incorrect Results, for which FDM is not responsible.

Duty to review and release. The Customer is obliged to review all Results technically and legally before using them vis-à-vis third parties (in particular authorities, monitoring bodies, employees, applicants, workers’ representatives, courts, the public), to complete the release and review steps provided for in the Platform and to take responsibility for the Results as its own statement. Results are drafts and working aids of the Customer, not statements of FDM.

Decisions. All decisions on job evaluations, comparison groups, justification grounds, pay adjustments, remedial measures, report contents, responses to information requests, job advertisements and the involvement of workers’ representatives are taken and answered for exclusively by the Customer.

No assurance of legal compliance. Statements in the Platform, in the documentation or in marketing such as “compliant”, “directive-compliant”, “fulfilled” or similar status information are the result of a technical check according to stored rules and do not constitute an assurance of legal compliance.

The contract is concluded by online registration and booking of a plan, by acceptance of an offer from FDM or by activation of an account by FDM.

Trial phase. FDM may grant a free trial phase of fourteen (14) days with the feature scope of the Professional plan. The trial phase ends automatically; no payment obligation arises unless the Customer actively books a paid plan. Personal data may only be processed during the trial phase if the data processing agreement has been concluded beforehand; otherwise only anonymised or synthetic test data may be used.

Plan limits. Usage limits may apply to individual plans. They result from the plan description, order page or individual offer applicable at the time the contract is concluded. FDM is entitled to enforce compliance with these limits by technical means.

Add-ons. Where FDM offers additional modules, these are booked and invoiced separately in accordance with the applicable price list or the individual offer and may, unless agreed otherwise, be terminated independently of the main plan.

The Customer ensures that it is entitled to process the Customer data in the Platform, in particular that a legal basis under data protection law exists, that employees have been informed in accordance with Art. 13/14 GDPR and that – where required – workers’ representatives have been involved (e.g. under the Austrian Labour Constitution Act (ArbVG), in particular §§ 96, 96a ArbVG for systems that analyse employee data).

The Customer assigns user roles and permissions exclusively on a need-to-know basis, manages the onboarding and offboarding of users itself and bears responsibility for all actions carried out under its user accounts. Access credentials must be kept confidential; any suspicion of misuse must be reported to FDM without delay.

The Customer uses the Platform only within the scope of the booked plan and of the law, in particular not for discrimination, for the inadmissible disclosure of individual pay, to circumvent the protective mechanisms (e.g. minimum group sizes) or to process third-party data without authorisation.

The Customer is itself responsible for retaining its final reports, evidence and other Results outside the Platform as required by law or by its business.

The Customer is responsible for compliance with the requirements of the Directive and of the national law applicable to it within its company, in particular for deadlines, reporting duties, information duties, requirements for job advertisements and – in Austria – compliance with the Equal Treatment Act and the Labour Constitution Act and – in Germany – the Pay Transparency Act (Entgelttransparenzgesetz) and the respective national law implementing the Directive.

For the term of the contract, the Customer receives a non-exclusive, non-transferable, non-sublicensable right to use the Platform for its own internal business purposes to the contractually agreed extent. Group companies may only be included on the basis of a corresponding plan agreement (multi-entity).

In particular, the following are not permitted: use for third parties (service bureau, consulting services for third parties without FDM’s consent), reverse engineering, automated extraction, passing on of access credentials and use for the development of a competing product, in each case unless mandatory law – in particular mandatory statutory rights to establish interoperability – provides otherwise.

All rights to the Platform, its software, methodology, rule sets, knowledge content and documentation remain with FDM. The Customer remains the owner of the Customer data. FDM may use Customer data exclusively for the performance of the contract. In addition, FDM may use strictly anonymised, aggregated data without any possibility of re-identifying the Customer or individual persons in order to improve the Platform. Such anonymised aggregate data is not personal data.

The amount of the fees results from the price list or order page applicable at the time the contract is concluded or, for individually agreed services, from the respective offer. All prices are net prices plus statutory VAT.

The fees are due in advance for the respective agreed billing period, unless otherwise agreed in the individual offer.

In the event of late payment, the Customer owes default interest under § 456 of the Austrian Business Enterprise Code (UGB) and reminder costs under § 458 UGB. If payment is not made despite a reminder and a grace period of fourteen (14) days, FDM may block access; the payment obligation remains in place. Before blocking access, FDM will point out the consequences. After sixty (60) days of uninterrupted blocking, FDM may terminate the contract for cause.

An upgrade to a higher plan takes effect immediately and is charged on a pro-rata basis; a downgrade takes effect at the end of the current billing period.

The agreed recurring fees are index-linked. FDM is entitled to adjust the fees once a year with effect from 1 January of a calendar year in line with the change in the consumer price index published by Statistik Austria or an index replacing it.

FDM is entitled to change the prices for individual plans or services generally with effect for future billing periods. FDM informs affected customers in text form at least three (3) months before a price increase takes effect. In the event of a price increase, the Customer may terminate the contract as of the time it takes effect. Billing periods already paid in advance remain unaffected.

FDM provides the Platform within the scope of its technical and operational possibilities. Temporary restrictions or interruptions may occur in particular due to maintenance work, security measures, technical faults, force majeure and disruptions of telecommunications, hosting or other upstream services. As far as possible, FDM will carry out plannable maintenance work in such a way that use of the Platform is impaired as little as possible.

Support requests can be sent to kontakt@entgelt-transparenz.at. Specific response, processing or resolution times are owed only if they have been expressly agreed.

FDM may further develop the Platform and change, replace or discontinue functions, provided that the essential contractually agreed purpose of use is retained. Changes based on legal, regulatory, security-related or technical requirements may also be made at short notice.

FDM takes appropriate measures to back up the Platform data and ensure that it can be restored. Details result from the AVV and the technical and organisational measures described therein.

Where FDM processes personal Customer data on behalf of the Customer, the data processing agreement concluded between the parties under Art. 28 GDPR (“AVV”) applies and forms part of the contract.

For data that FDM processes as its own controller (in particular contract and billing data as well as its own website and communication data), the privacy policy applies.

Details of the processing of personal Customer data, of the further processors used, processing locations and any transfers to third countries result from the data processing agreement and its annexes.

Taking into account the state of the art, the nature and scope of the processing and the associated risks, FDM takes appropriate technical and organisational measures to protect personal Customer data. The measures applicable in each case are described in the data processing agreement and its annexes and may be developed further while maintaining an appropriate level of protection.

FDM may use the Customer’s company name in a reference customer list. The Customer may object to this use at any time with effect for the future. The use of logos, trademarks, testimonials, case studies or further advertising statements about the Customer requires the Customer’s prior consent.

FDM warrants that the Platform substantially has the agreed feature scope during the term of the contract. For software it cannot be warranted that it runs without interruption and free of errors in every conceivable combination of applications.

The Customer must report defects without delay and in a comprehensible manner. FDM remedies reproducible defects within a reasonable period by rectification, workaround or update. If the remedy of a significant defect repeatedly fails despite a reasonable grace period, the Customer may reduce the fee for the affected period appropriately or terminate the contract for cause.

FDM is liable for damage only in the event of intent or gross negligence. Liability for slight negligence is excluded to the extent permitted by law, except for personal injury. Mandatory statutory liability provisions remain unaffected.

To the extent permitted by law, FDM’s liability in the event of gross negligence and in all other cases in which FDM is liable under this clause is limited, per event of damage and in total per contract year, to the amount of the net fees actually paid by the Customer in the twelve (12) months before the damaging event, but no more than EUR 25,000 per contract year. The lower of these two limits applies.

For the loss of data, FDM is liable – to the extent permitted by law – only in the amount of the typical and reasonable effort required to restore the data. The liability cap under clause 12.3 remains unaffected.

The limitations and exclusions of liability in this clause 12 also apply, to the extent permitted by law, for the benefit of the managing directors, employees, corporate bodies, agents and vicarious agents of FDM.

Claims for damages by the Customer must be asserted in court within two (2) years of becoming aware of the damage and the party causing it, but no later than three (3) years after the damaging event occurred, to the extent that such a shortening is permitted by law. Mandatory statutory limitation and preclusion periods remain unaffected.

The Customer indemnifies FDM against justified third-party claims, including reasonable costs of legal defence, to the extent that these claims are based on an unlawful or contract-breaching introduction or use of Customer data for which the Customer is responsible, on an inadmissible disclosure of data for which the Customer is responsible or on any other breach of clauses 4, 6 or 7 for which the Customer is responsible.

The indemnification does not apply to the extent that the claim was caused or contributed to by a breach of duty for which FDM is responsible. FDM informs the Customer without delay of claims asserted and gives it the opportunity, to the extent legally and factually possible, to participate in the legal defence.

The contract begins upon booking and runs for the selected billing period (one month or one year). It is extended by the same period in each case unless it is terminated with a notice period of one (1) month for monthly billing or three (3) months for annual billing as of the end of the term. Enterprise contracts have a minimum term according to the offer.

The right to extraordinary termination for cause remains unaffected. Cause exists for FDM in particular in the event of late payment under clause 8.3, in the event of a serious or repeated breach of clauses 6 or 7 or in the event of the Customer’s insolvency, to the extent permitted under the Insolvency Code.

Terminations are made via the Platform (subscription management) or in writing by email to office@fdm-software.at and/or kontakt@entgelt-transparenz.at.

After termination of the contract, the return, export and deletion of personal Customer data are governed by the data processing agreement (AVV).

Austrian law applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and the conflict-of-law rules of private international law.

The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Vienna. Subject-matter jurisdiction is determined by statutory provisions.

The place of performance is FDM’s registered seat.

Assignment of rights under this contract by the Customer requires FDM’s consent. FDM may transfer the contract to an affiliated company or a legal successor.

The Customer may only set off claims that are undisputed or have been established with final legal effect.

Should individual provisions be invalid, the remainder of the contract remains effective. The invalid provision is replaced by a valid provision that comes closest to its economic purpose.

The contract language is German. In case of translations, the German version prevails.