GENERAL COMMERCIAL TERMS AND TERMS OF USE FOR THE SALE AND DELIVERY OF OPERATING LICENSES FOR THE WEB-APPLICATION “ATIPSO-SOCIALMEDIAMANAGER” AND THE CORRELATION OF THE PROVISION OF IT-SERVICES.
1. Recital clause
The N!N pro GmbH seated in 4910 Ried, Innkreis, Molkereistraße 4, (in the following shortly referred to as the agent) is the owner of all rights of creation utilization and copyrights in correlation with the web software “atipso-Socialmediamanager (in the following shortly referred to as “atipso”). The agent allocates the undermentioned terms for the rights of creation utilization aka copyrights for this software product. The contracting party and users of said software purchases the authorization of usage under the stipulation of the following terms. Only the relevant version of the following general terms of business apply for all business relationships between the N!N pro GmbH as agent and the user/client, of the represented software or other services of the agent, even when in individual cases during the conclusion of contract/laying claims to services or authorization of usage these terms have not been referred to explicitly. The terms of business only apply when they have been accepted in written form by the client.
2. Subject matter of contract and conclusion of an agreement
The agent enables the client to create individualized applications, content sites, raffles, voting modules (voting), the synchronization of shops or to create these and to integrate them in different ways through Facebook applications, iFrame or the URL of ones own internet presence, or within the framework of ones own internet presence, Facebook pages, websites, blogs, forums, URLs, online shops etc., by using the Web-Software “atipso”. Atipso enables a simplified creation and an automated creation of Facebook-applications as well as Drag&Drop Page builder for the individual content of the client. The contract award or the temporarily acquirement of authorization of usage comes in effect with the booking of atipso bundles. The conclusion of Contract or the booking of atipso bundles becomes effective on the part of the client with the activity of the “Sign up” Button. Thereby the Client grants a binding order for the delivery of the authorization of usage in consideration of the according software bundle including all necessary hosting services. Before the dispatchment of this binding order, the client is able to see and change the data at all times. The transfer of the order of the client to the agent only takes effect when the client has clicked the “Accept General Terms” button, and in thus accepted the terms as subject matter of their order and the completed contract. After the dispatching of the order, the client receives an automatic acknowledgement of receipt via Email from the agent, which shows the order once again in detail. Through the act of disposal or the activating of the ordered software bundle the agent accepts the order, and the contract comes about negotiated.
3. Prices, methods of payment and billing
- 3.1 All prices are in Euro without the sales tax.
- 3.2 The payment takes place according to the choice of the client by Credit card, PayPal, advance payment or direct debit, but the agent reserves the right to accept orders only against advance payment.
- 3.3 The billing takes places monthly in advance. The charged sums are fully and instantly payable after the receipt of the bill. For a delay, default interest will be charged at the dimension customary in banking, the enforcement of farther damage caused by default will be reserved. For a delayed payment the agent is legitimated to step back from the contract instantly and to inhibit the further usage of software bundles. The authorization of the client expires automatically in the case of a delayed payment.
- 3.4 The usage of the Software bundle “Free” is feasible without payment.
4. Duration and termination of contract
- 4.1 The booking of a Contract bundle takes places for the length of a month, starting with the booking date or the date of the conclusion of the contract. The contract is automatically extended itself for the length of a month, if the client does not abrogate the contract no later then 24 hours before the date of expiration via Email, sent to the address published by the agent.
- 4.2 The right to abrogate the contract without previous notice for important reasons of both contracting party remains intact. An important reason for the agent is one of the following cases: – Default of Payment – Continuously breach of contract despite Dissuasion – Infringement of the mutual trust caused by actions of the client, which make a contractual relationship unacceptable for the agent. Besides this, the agent is allowed to abrogate the contract ahead of schedule if the fundamental parameter of the value performance have changed and the client cannot be expected to continue the service under economic points.
- 4.3 with the termination of the contractual relationship the authorization of usage for the client ends. The Agent is, in cases like this, permitted to delete all served based data of the client. A transmission of the data or the website of the client, which were created with the software subject to the contract, to a third party server is not possible, therefore the client is responsible for a termination of the contract to ensure the saving and backup of the data in time. Accountability in any kind of the agent in this section is excluded.
- 4.4 The agent is also entitled to block all published data, content, sites and applications that were created with the software subject matter of the contract for a default of payment or in the case of the presentation of other circumstances that qualify to a dismissal for cause and to overlay an according indication on the published data.
5. Authorization of Usage and contractual secondary obligations of the client
- 5.1 Insofar as Software products are allocated to the client or the usage of software products are permitted to the client within the limits of the service by the agent, the Client has the constricted, not transfusible, not exclusive, not sub licensable right, to use the software during the time of the contract in a constant form.
- 5.2 for Software products of third parties that may possible be allocated to the client by the agent, the settlements and license stipulation of the according producer are prior-ranking to this point. 5.3 The agent will no pass on advanced rights to software products to the client unless other, special agreements were made. The rights of the Client according to the §§ 40 (d), 40(e) UrhG are not affected by this.
- 5.4 Every infringement of the copyright of the client will result in lawful damages, and full compensation has to be provided. All content kept available, storable or published within the conditions of the clients internet presence and that was created by the software subject matters of the contract the client is solely self responsible for. The agent is neither obligated nor entitled to monitor the content of the client for a possible illegality or a breach of the stipulations of the penal, the administrative and the civil law or to check for compliance with the terms of use of the various platform provider (for example Facebook). The client obligates themselves to mark content generated by themselves as their own content and to observe all lawful mandatory identification as well as the duty to inform. Also the client obligates themselves to avoid to create any content with atipso that demand a high processing power, need a lot of main memory or endanger the overloading of the servers like CGI-Scripts for example. Should the client offend these obligations, the agent is enabled to block the access of third parties to the internet presence of the client. In the case of such action taken, the client is instantly informed about the measures taken by the agent. All Files and data the client has the right of access to, the internet presence and everything generated with the help of atipso has to be regularly checked and sufficiently stored, the client is aware of this and obligated to. Particularly in regard to service or alteration work on the servers, that were announced in a timely manner the data have to be stored. The backup copies of the client is not allowed to be stored on the server of the agent.
6. Obligation and indemnification, access blocking
The client is obligated to adhere to all standards of Austria, the European Community as well as third party countries, with the claim of the contractually rights. The Stipulations of the media laws, the telecommunication acts and regulations, the copyright and the stipulation of the penal laws are especially indicated. Likewise the terms of usage and demands of third parties systems are to be adhered. The agent is obligated and indemnified by the client for all imaginable damage that may occur through the unlawful usage of the software subject matter of the contract. The agent reserves the right to block and/or erase all internet accesses or other services temporarily or finally as well as to erase all data without substitution if the client breaches the above given stipulations. This right always is granted to the agent if he gains knowledge about the created content being illegally in the above mentioned way or if there is a strong suspicion for their illegality. A strong suspicion is especially given in the case of the client becoming subject to a warning or is claimed against the illegality of published content. In such cases the client abdicates before the enforcement of any possible indemnity claims or an interference with possession. The right to erase apply for example especially then, if any of the following content is published: Discrimination of others because of their race, religion, ideology, sex etc., pornographic content or content that is morally alarming or content that has the danger of being subject of a criminal prosecution. In the case of an abusive usage if the software subject matters of the contract, the agent reserves the right of an enforcement of indemnification claims.
7. Hosting Services
The agent supplies storage space for the client within the agents server units, to host the content created by the user with the software subject matter of the contract. The client is permitted to use the assigned Storage space within the parameter of the contractual purpose. The agents strive to make corresponding functionality available, which matches the qualitative and quantitative services required by the client. For this purpose it is necessary that the computer system used by the client meets the following system and technical requirements: Browser atipso is operated through the browser and needs therefore no download or installation. It is recommended to use modern browser like Google Chrome, Firefox 4 or Internet Explorer 9. Older internet explorer models such as IE6 for example, can cause problems or the loading time is very long. This does not apply to the content created with atipso. JavaScript and Cookies JavaScript and cookies have to be activated in the browser to use atipso without problems. In case of these functions not being activated by default, the undermentioned links can supply you with information how the functions can be activated:
Because of the uses of JavaScript the computer should have a minimum capacity of 1 GHZ and 1 GB RAM. The Agent takes no responsibility for the impairment of performance if other system configurations are being used. The Agent indicates that due to a limited performance level and data signaling rate a failure-free access to the internet cannot be granted. Because of this, the agent accepts no obligation to ensure a constant connection to the internet or to confirm a certain data signaling rate at all hours. For disturbances of the usability of the internet presence during times in which the server is not accessible due to technical or other problems, which are not within the responsibility of the agent, (act of god, interference by third parties etc.), a responsibility of the agent is excluded. Solely the temporarily access disturbance within normal parameters are no breach of the liability of the agent. The agent is entitled to block temporarily the access to the internet presence of the user to carry out maintenance.
8. Defects liability, maintenance, alterations, responsibility
- 8.1 Letters of complaint are only effective if they refer to reproducible scarcities and if they were documented in writing within four weeks after the delivery of the agreed on service. In a warranty case amendment has the priority before price reduction or redhibitory action. In the case of a justified letter of complaint the deficiency will be remedied by the agent within an adequately time. For this, the client has to supply the agent with all necessary measures for the analysis and to remedy defects.
- 8.2 furthermore the agent takes no responsibility for Errors, disturbances or defects which is the result of incorrect operating, altered operating system configurations, gateways and parameters, usage of improper organizational means and data carrier as far as they are mandatory, abnormal operating systems and an act of god.
- 8.3 The agent is to adhere for defects within the parameter of the statutory provisions if he can be accounted for a deliberate act or gross negligence. The adherence for light negligence is excluded. The claim for compensation of subsequent and financial damage, unrealized profits or savings, loss of interest and of damaged third parties against the client is legal, but excluded. The standards of the law on product liability remain intact.
9. Data privacy
- 9.1 The agent will adhere to all measures necessary in the handling of all personal data that are required by the stipulations of the data protection and telecommunications act and will take all technical and organizational measures necessary for the data privacy in the area of accountability of the agent. The agent especially commits their staff members to obligate to the stipulations of the data privacy act.
- 9.2 The agent is not obligated to verify the lawfulness of the clients conducted data handling within the terms and stipulation of the data privacy act. The client has to ensure the lawfulness of the personal data relinquishment to the agent as well as the using up of such data.
- 9.3 The agent takes all reasonable measures to secure the stored data and information of the client at the various locations against the illegal access of third parties. However, the agent will not be responsible if third parties managed to gain illegally access to the data and information.
- 9.4 Because of technical need it is necessary to gather and store certain personal data for the web-application atipso. The transmission and storage of sensitive data in this correlation is of course carried out with an encryption (SSL-Encryption). In the case of necessary alterations of the data protection measure, the clients will be informed in advance via Email and are able to deny their acceptance of the planned alterations within 14 days. The client declares his acceptance of the fact that the information automatically collected and stored by the usage of the web-application subject matter of the contract, which are transmitted by the browser of the client, are temporarily stored for certain purposes (technical reasons, subsequent evidence in case of improper or illegal use, statistic anonymous analysis) and subsequently deleted. In this correlation the client declares his acceptance of the agent using Google Analytics function. The client accepts that for the agents solely own marketing purposes anonymous statistic analysis guest and user data are used. A transmission of the data to third parties is debarred, aside from nonfeasance against the agent. In that case data can be handed over to debt collector companies, Lawyers, Courts and public authorities. Eventually the client accepts, as far as it is necessary for an user friendly submission, that the agent uses cookies.
10. Right of withdrawal
If a client commercial transmission within the means of the ÖKSCHG (Austrian Consumer Protection Act) is existent, it is possible for the client to cancel the contract within 7 working days, where as the Saturday does not count as a working day. The 7 days begin with the day of the conclusion of the contract and the right of withdrawal has to be declared in writing. If however, an ordered service is carried out according to an agreement within 7 days from the conclusion of the contract, the right of withdrawal is impossible. Likewise there is no right of withdrawal for services that were made to order on specific demands by the client.
11. Miscellaneous
The rest of the contract is unaffected, should particular stipulations of this contract are already or become invalid. The contract partners will work in partnership to find a stipulation that comes as close as possible to the ineffective stipulations.
12. Final clause
If not agreed on otherwise, the legal stipulations among registered traders apply solely based on Austrian right, even if the mandate is carried out in a foreign country. For all eventually occurring business disputes the exclusive jurisdiction lays solely with the court responsible for the business location of the agent as arranged. For the disposal to consumers in the meaning of the consumer protection act, the stipulations only apply as far as the consumer protection act does not urgently allows for other stipulations. The application of Austrian law is agreed on. Place of execution and exclusive jurisdiction for all claims in coherence with the business connection is Ried at the Innkreis. Austrian domestic jurisdiction is explicitly agreed on.