General Terms and Conditions of Service
Campaigning Software GmbH

1. Scope, General

1.1. These General Terms and Conditions (GTC) apply to legal transactions between Campaigning Software GmbH ("Campaigning Software") and the client for consulting and conceptual services, design services (conception, design and graphic implementation), programming and development services and for services in connection with campaign and project management through Campaigning Software.

1.2. The provision of services by Campaigning Software takes place exclusively in accordance with these General Terms and Conditions and the service descriptions on which the offer is based. Terms and conditions of the customer, to which the customer refers in his order forms or otherwise, do not apply unless Campaigning Software expressly agrees to their applicability in writing. The absence of a reservation by Campaigning Software regarding the applicability of any terms and conditions of the client cannot be assumed to mean that Campaigning Software has given its consent.

1.3. These General Terms and Conditions only apply to legal transactions between companies.

1.4. The license costs for the SaaS solution CamBuildr are excluded from these terms and conditions and are dealt with separately in a corresponding license agreement.

2. Offers, conclusion of contract and contract changes

2.1. Offers from Campaigning Software are non-binding.

2.2. The contract is considered concluded when Campaigning Software has sent a written order confirmation after receiving the order from the customer or has started to fulfill the commissioned services. An email is sufficient for this.

2.3. Subsequent changes or additions to the contract must be made in writing to be valid. The same applies to a waiver of the written form requirement. Oral subsidiary agreements are excluded.

3. Scope of Services

3.1. Scope of services and subsequent changes: The scope of the contractual services results from the service descriptions contained in the Campaigning Software's offer. If possible, Campaigning Software will take into account subsequent changes to the service object requested by the client. Such changes lead to an adjustment of prices and service dates.

3.2. The client will provide Campaigning Software with all documents and information necessary for the fulfillment of the order (such as text, data, graphics or photos) in a timely manner and will inform Campaigning Software of all processes and circumstances that are important for the execution of the order.

3.3. Services not included: In addition to the services excluded in the service descriptions of the offer, the following services are expressly not included in the scope of services:

management and/or hosting of email addresses;

Registration, management and/or redirection of the client's domains (domain pointing);

Provision or procurement of the documents and information required for the provision of services (such as in particular texts, data, graphics, videos, sounds or photos);

individual program adjustments or reprogramming at the request of the client;

Costs for travel, stay and travel time for the employees of Campaigning Software involved in the execution of the services;

any changes or further developments to the services as well as ongoing maintenance after handover.

3.4. These services are only provided after a separate agreement against additional remuneration according to Campaigning Software's valid hourly rates or charged to the client as third-party costs.

3.5. Client's domain: Campaigning Software is not obliged to register the domain (registration and management) on behalf of the customer. The contractual relationship for the creation and management of the domain exists exclusively between the client and the respective registry. At the request of the client, Campaigning Software will only check whether the domain requested by the client is available. Campaigning Software is not obliged to check the legal admissibility of the domain requested by the customer (in particular with regard to names, trademarks or competition law).

3.6. Source code: The source code of a development service handed over to the client remains with Campaigning Software.

3.7. Commissioned further developments (features) to CamBuildr are handed over in a certain state and go over into the range of functions of the SaaS solution.

4. Prices and Payment

4.1. The prices for the services of Campaigning Software result from the offer and the service descriptions contained therein. All specified fees are exclusive of sales tax and any third-party costs, such as in particular for the acquisition of rights to photos, videos, sounds, etc.

4.2. Depending on the agreement, the fee for one-off services consists either of the one-off amount specified in the offer and in the service description or billing is based on the actual effort according to Campaigning Software's applicable hourly rates. In the case of billing based on actual expenditure, the offer only contains non-binding cost estimates.

4.3. For recurring services that are provided within the framework of ongoing obligations, the fee consists of a monthly fixed amount, depending on the client's choice, or billing is based on actual expenditure according to Campaigning Software's applicable hourly rates. If billing takes place with a monthly fixed amount, all services of Campaigning Software are compensated within the framework of the hourly quota specified in the service description of the offer. If the hourly quota is exceeded, the additional services will be charged additionally according to Campaigning Software's applicable hourly rates. Hours are rounded up to the nearest quarter of an hour.

4.4. Unless otherwise stated in the offer, the following terms of payment apply: All invoices are due for payment immediately upon receipt without any deductions and free of charges. In the case of continuing obligations, the settlement is made monthly in advance.

4.5. The prices for long-term obligations are value-secured. The prices for continuing obligations follow the changes in the 2010 consumer price index of Statistics Austria or an index that replaces it. The month in which the contract was concluded serves as the base month. Changes in the index numbers up and down by up to 3% are not taken into account. This margin must be recalculated each time it is exceeded or fallen below, whereby the index number of that month is always relevant for the further calculation of the change margin in which the 3% limit was exceeded or fallen below for the first time. Late and/or non-indexing is not to be considered a waiver and can lead to subsequent billing at any time.

4.6. If the client is in default of payment, Campaigning Software is entitled - without prejudice to other rights - to withhold services and deliveries while observing the outstanding delivery period and/or to withdraw from the contract after a reasonable grace period has expired. In the event of a delay in payment, interest on arrears will be charged at the statutory rate. Campaigning Software is entitled to charge the client for all costs that arise from late payment (such as reminder fees or legal fees).

4.7. The customer is not entitled to withhold or offset payments due to warranty claims or other claims.

5. Term and Termination

5.1. In the case of one-off services (projects), the contract generally ends with the provision of the service (with the completion of the project).

5.2. Depending on the agreement, recurring services within the framework of a continuing obligation are provided for a limited or unlimited period with the possibility of termination on a monthly basis.

5.3. In the event of a time limit, the contractual relationship with regard to the respective part of the service ends after the period specified in the service description of the offer has expired, without the need for a separate termination. Unless otherwise agreed in individual cases, unlimited contractual relationships can be terminated at the end of each month with one month's notice. The cancellation must be made in writing.

6. Content and Use

6.1. The services provided by Campaigning Software are protected by copyright. Campaigning Software or its licensors are entitled to all copyrights to the services and works created by Campaigning Software (in particular offers, service descriptions, reports, analyses, organization charts, drawings, software, documentation, etc.). The services, including any preparatory work, may not be changed without the consent of Campaigning Software. The client receives the right to use the services after payment of the agreed fee exclusively for its own purposes, only for the hardware specified in the contract and to the extent of the licenses purchased. A paid or free transfer of individual or all rights of use requires the consent of the Campaigning Software.

6.2. All rights to ideas, drafts, programs, program parts, source codes, designs and concepts brought in, realized or not realized by Campaigning Software remain exclusively with Campaigning Software; these represent confidential business and trade secrets.

6.3. Rights to works commissioned by the client: If Campaigning Software produces works individually and for the account and at the expense of the client, the client is granted the right to use the work for all types of exploitation. Should Campaigning Software bring in its own images, graphics, videos, sounds and other materials that are processed in the work, the right to use the work only extends to the extent that Campaigning Software has rights. The contractual partner undertakes to indemnify Campaigning Software.

6.4. Campaigning Software is granted the right to electronically archive a copy in its own database. In addition, the client grants Campaigning Software an irrevocable, non-exclusive, royalty-free and transferable license to use the work and the right to issue further licenses to use the work, whereby this license to use the work relates to the reproduction, processing, improvement, exploitation and distribution of the ideas, concepts, structures and content of such commissioned works. However, Campaigning Software does not use confidential information.

6.5. The customer is solely responsible for the content of his websites, social media presence, campaigns and other appearances and assures that his appearance does not infringe the rights of third parties (such as in particular trademark, name, copyright or other property rights) or existing statutory rights provisions is violated. In particular, the customer will not publish or refer to any immoral or illegal content. The client is expressly referred to the provisions of the Pornography Act, the Prohibition Act and the relevant provisions of the Criminal Code, according to which the transmission, distribution and exhibition of certain content is subject to legal restrictions. The same applies to third-party content to which the client refers through hyperlinks or otherwise.

6.6. The client is obliged to provide the information, documents, data, texts, images, videos, sounds and other materials required for the provision of the services. The customer is responsible for this and assures that he has all the necessary rights in this regard, in particular the right to use the data on the Internet. The client will indemnify and hold harmless Campaigning Software from all consequences of any violations of the law. Campaigning Software is not obliged to check the information, data, documents, texts, images, videos, sounds or other materials provided for compliance with applicable legal provisions or for possible violations of property rights of third parties.

6.7. Campaigning Software assumes no responsibility for the content and completeness of the imprint, data protection information and all information and information to be provided on the website or in other appearances of the client in accordance with the statutory provisions (e.g. according to ECG, UGB, GewO, MedienG, KSchG, DSGVO, DSG, FernFinG etc.). The client is obliged to name a person responsible for such content.

6.8. In the event that Campaigning Software is commissioned by the client to design a corporate identity design (e.g. logos, lettering, etc.), the client is solely responsible for ensuring that neither the rights of third parties (such as brands, names, copyrights or other property rights) are infringed nor are existing statutory provisions violated. In particular, the customer is responsible for ensuring that he has all the necessary rights in this regard. The client is recommended to carry out a trademark similarity search or other research into possible rights of third parties with regard to these services. The client will indemnify and hold harmless Campaigning Software from all consequences of any violations of the law.

7. Warranty and Liability

7.1. Warranty: In compliance with the agreed terms of payment, Campaigning Software is obliged to remedy any defect affecting the functionality that exists at the time the service is handed over to the client in accordance with the following provisions.

7.2. The warranty period is 12 months after the respective service has been rendered. The warranty claim presupposes that the client has immediately reported the defects that have occurred in writing and that the notification has been received by Campaigning Software, otherwise the services of Campaigning Software are deemed to have been accepted. The customer must immediately prove the existence of the defect. If the customer does not report the defect immediately, he also loses the right to compensation for consequential damage. If there is a defect covered by the warranty, Campaigning Software has the choice of either improving the defective part of the service or making an appropriate price reduction.

7.3. The prerequisite for any correction of defects by Campaigning Software is that it is a malfunctioning error that is reproducible and that Campaigning Software has received all the documents and information required for error correction from the client.

7.5. Liability. Campaigning Software is only liable for damages - with the exception of personal injury - outside the scope of the Product Liability Act within the framework of the statutory provisions if intent or gross negligence can be proven. Liability for slight negligence, compensation for consequential damage, pure financial loss, loss of profit, savings not achieved, loss of interest and damage from third-party claims against the client are excluded.

7.6. Campaigning Software excludes any liability and warranty for subsequent changes and/or further developments made or initiated by the client to the services of Campaigning Software and the resulting consequences. Campaigning Software assumes no warranty and assumes no liability for a lack of knowledge on the part of the client.

8. Data protection and data security

8.1. Campaigning Software will only use data in compliance with the applicable data protection regulations. In particular, Campaigning Software will use data exclusively within the scope of the client's orders and will take all necessary data security measures. Campaigning Software will only employ those employees who have committed themselves to the Campaigning Software to maintain data secrecy or are subject to a statutory duty of confidentiality.

8.2. The client is responsible for backing up data and other materials that are provided to Campaigning Software to provide the services. Campaigning Software is not obliged to make backup copies. Campaigning Software accepts no liability for any loss of data.

8.3. If Campaigning Software acts as a data protection processor for the client as the data protection officer, the parties regarding the processing of personal data as order processing in accordance with Art. 28 GDPR make the agreements in accordance with the "Agreement on order processing in accordance with Art. 28" provided by Campaigning Software GDPR”.

9. General

9.1. The client declares that he concludes this contract as part of the operation of his company.

9.2. The client gives his express consent to be named as a customer (reference) of the campaigning software and to be included in the publicly accessible reference list of the campaigning software with a logo to be provided by the client.

9.3. Transfer of rights and obligations: Campaigning Software is entitled to transfer the rights and obligations arising from the contract to third parties. The client may not assign or transfer its rights and obligations under this contract without the prior written consent of Campaigning Software. Campaigning Software is entitled to have the transferred services rendered in whole or in part by third parties.

9.4. Confidential information: Confidential technical and commercial information provided by a contractual party may not be passed on to third parties without the prior written consent of the party providing it and may only be copied and used to the extent permitted. The information contained in the documents is the property of the providing party and must be returned to them upon request and, in principle, at the end of the contract. Campaigning Software undertakes to maintain absolute secrecy about all matters that come to its knowledge, in particular business and trade secrets. Campaigning Software will maintain secrecy about the content of the transferred services and all information and circumstances that Campaigning Software received in connection with the provision of the services. However, Campaigning Software is released from the duty of confidentiality towards any assistants and representatives that it uses. The confidentiality obligation also extends beyond the end of the contractual relationship.

9.5. All offer and project documents may not be reproduced or made accessible to third parties without the consent of Campaigning Software. They are to be returned to Campaigning Software immediately or demonstrably destroyed upon request if the customer does not order the services offered from Campaigning Software. All rights to the design of the website, the campaigns and other appearances proposed by Campaigning Software to the client remain with CampaigningSoftware. The design may not be used or implemented or passed on to third parties for implementation without the consent of Campaigning Software.

9.6. Place of jurisdiction and applicable law: For any disputes arising from the contract between CampaigningSoftware The exclusive jurisdiction of the competent court in commercial matters in the district of the district court of the inner city of Vienna is agreed upon with the client. Austrian law applies to the exclusion of the referral norms. The application of the United Nations UNCITRAL Convention on Contracts for the International Sale of Goods is excluded.

9.7. Effectiveness. In the event that individual provisions of these GTC should be ineffective, illegal or unenforceable, the validity and enforceability of the remaining provisions shall remain unaffected. The invalid provision is to be replaced by a valid provision that comes as close as possible to the intended purpose.

 

Status: 05/2023