LEADBACKER GENERAL TERMS AND CONDITIONS ("GTC")
- The following General Terms and Conditions ("GTC") shall apply to all business and contractual transactions of Leadbacker GmbH, FN 492771p, Lindengasse 56/2, 1070 Vienna, e-mail: firstname.lastname@example.org, UID number ATU 73487149, ("Leadbacker") with a client, insofar as they concern the granting of licenses or rights of use to the Leadbacker application including associated documentation (the "Leadbacker Products") by Leadbacker to clients. Leadbacker application including associated documentation (the "Leadbacker Products") by Leadbacker to clients.
- Unless otherwise agreed in writing in individual cases and subject to point 1.4, these General Terms and Conditions govern the entire contractual relationship between Leadbacker and the Client, cancel any deviating contractual conditions previously in force with regard to the respective contractual relationship of the parties without replacement and apply to the entire business relationship between the contractual parties.
- Conflicting general terms and conditions of the client are expressly rejected so that they do not become part of the contract. This also applies if Leadbacker performs the service to the client without reservation in knowledge of the client's general terms and conditions and/or the client refers to deviating general terms and conditions in its contractual declaration.
- Should a special framework agreement be concluded between Leadbacker and the Client in addition to these GTC, this shall take precedence over these GTC.
- Offers from Leadbacker are to be understood as a mere invitation to the Client to submit a legally binding offer (invitatio ad offerendum). Illustrations, drawings and brand information in Leadbacker's offers are non-binding. Only the Client submits a binding offer for the provision of the desired services by signing the written offer submitted by Leadbacker (i.e. Leadbacker's invitatio ad offerendum) in the space provided for this purpose and sending it to Leadbacker (e-mail or fax is sufficient)
- The legally binding offer submitted by the Client shall only be deemed to have been effectively accepted by Leadbacker when the Client's offer is confirmed by Leadbacker in writing (e-mail or fax is sufficient) or Leadbacker countersigns the Client's offer or Leadbacker actually begins to provide the service, depending on which event occurs earlier. Offers of the Client shall remain valid for 14 days from submission and can be accepted by Leadbacker within this period.
- A contract between Leadbacker and the Client is also concluded upon the signing of a corresponding contract by both parties.
- Leadbacker is not obliged to contract.
- Verbal ancillary agreements to written offers of the Client or to validly concluded contracts shall only be valid if and as soon as their validity is confirmed by Leadbacker in the form of a commercial letter of confirmation.
- Unless expressly agreed otherwise in writing, any cost estimates shall be deemed non-binding. § Section 1170a para. 2 ABGB (Austrian Civil Code) is expressly excluded, so that the limits of cost overruns stipulated therein shall not apply to non-binding cost estimates.
- The Leadbacker products are protected by copyright. Leadbacker grants the Client a non-exclusive, non-transferable right of use (permission to use the work) to the Leadbacker products at its office locations (hereinafter referred to as the "contract area"), which is limited in time to the duration of the contract. The Client is entitled to use the Leadbacker products within the scope of this right of use for the purpose of his company, limited to the agreed license model and limited to the contractual area. The Client is also entitled to activate the Leadbacker products in the company's internal network for an unlimited number of workstations, to load the software onto mobile end devices and to use them around the clock.
- The Client is not entitled to grant (sub-)licenses to the Leadbacker products to third parties or to make them accessible in any other way. "Third party" is any natural person or legal entity that is different from the Client, its bodies or employees, even if it has a legal relationship with the Client.
- The Client is exclusively entitled to use the Leadbacker products within the contractual territory for internal company purposes. The client is prohibited from passing on (distributing) the Leadbacker products to third parties against payment and/or free of charge or making them available to third parties in any other way, for example by way of rental.
- The Client is not entitled to reproduce the Leadbacker products or parts thereof or to make them available to third parties. Processing of the Leadbacker products is prohibited. The intended use of the Leadbacker products in accordance with the contractual agreement only requires the activation of users by means of a master data upload, which is carried out by key users of the client.
- Any use of Leadbacker products that goes beyond the contractual provisions requires the prior written consent of Leadbacker. The Client is obligated to notify Leadbacker in writing in advance of any change affecting its authorization to use and/or the remuneration and to obtain Leadbacker's written consen.
PRICES AND TERMS OF PAYMENT
- Unless otherwise agreed in individual cases, our current prices shown in the tariff sheet (Annex #2) at the time of conclusion of the contract shall apply, plus statutory value-added tax and other charges and fees prescribed by law or regulation.
- Leadbacker is entitled to unilaterally adjust the agreed prices if a change in the circumstances on which the calculation of the prices was based occurs up to the time of delivery or other service provision. This applies in particular to the subsequent introduction or increase of taxes, customs duties, public charges, freight and other ancillary charges which directly or indirectly affect Leadbacker's deliveries or services. Leadbacker shall under no circumstances be obliged to reduce prices retrospectively.
- Unless otherwise agreed, the respective base rate shall be paid in full in advance; the user fee for Leadbacker (executives) shall be charged monthly in arrears depending on the number of users.
- Unless other payment terms are granted in individual cases, payment within 10 (ten) working days to the following Leadbacker account is agreed as the payment term: Erste Bank, IBAN: AT33 2011 1838 7988 5300, BIC: GIBAATWWXXX.
- If the payment deadline is exceeded, default interest in the amount of 8% p.a. shall be agreed upon.
- If payment by installments is agreed, the entire outstanding amount shall become due in the event of non-payment or default on even one installment. Incoming payments will be credited first to costs, then to interest and then to capital by agreement of both parties to the contract. Leadbacker is, however, free to choose to credit the oldest debt item in each case. Deviating payment dedications of the client are inadmissible and will not be taken into account.
- The Client shall only be entitled to rights of set-off or retention if its claim has been legally established or is undisputed. Furthermore, the right of retention shall only exist if it arises from the same contractual relationship.
DELIVERY AND DELAY
- In the absence of a written commitment, delivery dates and delivery periods are subject to change and may be adjusted (i.e. extended or postponed) by Leadbacker if necessary, provided this is not unreasonable for the Client.
- Delays in delivery of up to 4 weeks shall not entitle the client to withdraw from the contract or to assert claims for damages on the grounds of default in performance. This shall apply even if fixed delivery periods have been expressly agreed.
- Force majeure, riots, epidemics or pandemics, official measures or other unavoidable events, in particular also default by subcontractors or sub-suppliers, shall release Leadbacker from the contractually agreed performance obligations for the duration of the disruption and to the extent of its effect. In such cases, the procurement risk lies with the client within the scope of their duration and scope, so that Leadbacker is not obligated to make covering purchases.
- The client is obligated to accept Leadbacker products delivered in accordance with the contract. The client must compensate Leadbacker for all damages and disadvantages arising from the failure to accept Leadbacker products properly.
- In the event that the client refuses to accept the Leadbacker products in breach of the contract, Leadbacker shall also have the right to withdraw from the respective contract without notice or deadline, to sell the Leadbacker products elsewhere and to fully recourse against the client for all damages and disadvantages arising from this withdrawal from the contract.
TERM AND CANCELLATION
- Pilot subscription
A term of 3 (three) months is agreed for the granting of licenses or rights of use in connection with Leadbacker products under the Pilot Subscription. After expiry of the term in accordance with point 0, the contractual relationship shall automatically be transferred to the Dialog License in accordance with point 6.2.
- Dialog License
The operating phase is 12 (twelve) months; it is automatically extended by a further 12 (twelve) months unless notice of termination is given in accordance with Item 0. A different duration of the operating phase can be agreed in writing between Leadbacker and the Client. In this case, point 0 sentence 1 applies accordingly. In the operating phase, the contractual relationship can be terminated in writing by Leadbacker and by the Client in compliance with a notice period of three months to the quarter.
- Good cause for extraordinary termination exists in particular in the event of:
i) use of the Leadbacker product by the client in breach of the contract;
ii) breach of confidentiality obligations;
iii) Default of payment by the Client for a period of more than 2 (two) months;
iv) opening of insolvency proceedings against the client;
v) any other breach of a contractual or legal obligation that makes it impossible for a contracting party to continue the license agreement.
- After termination of the contractual relationship for Leadbacker products, the Client must return all Leadbacker products and documentation to Leadbacker (data carriers, physical doc-uments and records) and/or demonstrably destroy them.
- Leadbacker is liable for the contractually agreed performance within the scope of the statutory provisions, unless otherwise stipulated below.
- The warranty period for Leadbacker products supplied by Leadbacker is six months from the respective handover (or from the agreed handover if the client refuses acceptance in breach of contract). The existence of the defect must be proven by the client. After the expiration of the six-month period, all warranty claims are forfeited and the assertion of claims for damages due to defects in accordance with § 933a ABGB is also excluded. Recourse by the client to Leadbacker in accordance with § 933b ABGB is excluded in any case. During the warranty period, the client must prove the existence of the defect already at the time of handover of the item, as well as that this was not caused by improper use on the part of the client. In the event of a defect relevant under warranty law, Leadbacker shall, at its discretion, improve or replace the item or grant rescission or a price reduction.
- Claims for damages, warranty claims and other claims of the Client referred to in Section 377 (2) of the Austrian Commercial Code (UGB) shall expire if defects which are identifiable upon proper inspection in accordance with Section 377 (1) of the UGB are not reported in writing and by registered letter without delay, but at the latest within 7 days of (agreed) handover/acceptance of the goods or services to/by the Client or to/by an authorized third party named by the Client or after execution of the order. The receipt of the written notice of defects by Leadbacker is decisive for the timeliness of the notice. It is merely clarified that any warranty claims (including claims for damages in accordance with § 933a ABGB) are also excluded if the client or third parties authorized by the client carry out changes, interventions or repair attempts of any kind on the respective Leadbacker product on their own authority and without a corresponding prior written declaration of consent by Leadbacker, from which the defectiveness results.
- Leadbacker shall be liable exclusively for the breach of main contractual obligations, insofar as this breach was caused intentionally or by gross negligence; in the case of personal injury, Leadbacker shall also be liable for slight negligence. This also applies to the breach of contractual ancillary obligations (in particular protective obligations).
- Liability for force majeure, loss of profit, loss of savings, loss of interest, indirect and consequential damages, non-material damages, as well as damages from third-party claims is excluded.
- Leadbacker is not liable for information provided by telephone or verbal statements or declarations made by its employees, unless these have subsequently been confirmed in writing.
- Leadbacker's liability is limited to the amount of the consideration to be paid by the client to Leadbacker under the contractual relationship.
- All claims for damages by the client arising from and/or in connection with the respective contractual relationship shall become statute-barred within one year of knowledge of the damage and the damaging party. The provisions of Section 7.2 concerning the assertion of claims for damages pursuant to § 933a ABGB shall remain unaffected thereby.
- The Client acknowledges that Leadbacker accepts no liability for any consequences whatsoever in relation to the Client's managers, which are (even abstractly) in connection with feedback obtained via Leadbacker products. The client shall indemnify and hold Leadbacker completely harmless in this respect.
INTANGIBLE PROPERTY RIGHTS
- The Client acknowledges that it has no rights of use to the Leadbacker products other than the limited rights of use described in Section 3 and that all intellectual property rights, in particular the copyright and all rights of exploitation and disposal to the Leadbacker products as well as any trademark rights, belong exclusively to Leadbacker. The Client is not granted any right to modify (even for the purpose of correcting errors), adapt or translate the software, to recompile, reverse engineer or develop derivative works. Leadbacker products may only be reproduced and decompiled within the framework of the mandatory legal provisions of §§ 40d and 40e UrhG. No provision of the GTC can be interpreted to mean that the client has a claim to handover of the source code of the Leadbacker products.
- Since Leadbacker processes personal data in connection with the provision of services, it shall act as the Client's order processor. With regard to the details, reference is made to the Data Protection Addendum (Annex./5).
- Leadbacker and the Client undertake to comply with their respective obligations in accordance with the data protection-related laws in force, in particular the DSGVO.
- The Client is obligated to keep the know-how underlying the Leadbacker products (e.g. content, programming, coding, formulas, etc.) secret and to only pass it on (including internally) to those persons who absolutely need the corresponding knowledge in order to be able to use the Leadbacker products in accordance with the contractual provisions (need-to-know principle). If necessary, this confidentiality obligation must be passed on to all employees involved and shall continue to apply indefinitely even after termination of the contractual relationship.
PLACE OF PERFORMANCE AND APPLICABLE LAW
- Unless otherwise agreed, the place of performance for the obligations resulting from the respective contractual relationship shall be Vienna.
- The place of jurisdiction for all disputes arising out of and/or in connection with the respective contractual relationship shall be the competent court in Vienna – “Innere Stadt” (inner city).
- The mutual business relationship shall be governed by Austrian law, excluding its conflict of law rules and the provisions of the UN Convention on Contracts for the International Sale of Goods.
- If individual provisions of these General Terms and Conditions should be invalid or if these General Terms and Conditions contain gaps, the validity of the remaining provisions shall not be affected. The invalid provision shall then be replaced by a valid provision that comes as close as possible to the economic purpose of the invalid provision. The same shall apply in the event of a loophole.