General Terms & Conditions
(translation of german AGBs)
1. General
1.1. These GTC apply exclusively in their current version to contracts for the provision of services in information technology as well as the provision and licensing of digital services, including the website https://www.augedo.com (hereinafter "Website") and the web app https://app.augedo.com/ (hereinafter "Web-App" or together with the Website "Digital Services") by ceed digital innovation GmbH (the "Contractor") to private individuals, associations, or entrepreneurs according to § 1 Abs. 1 Z1 KSchG (the "Client").
1.2. "Digital Services" within the meaning of these GTC are computer programs that are either standardly distributed by the Contractor or individually developed or adapted for the Client in accordance with § 40a of the Austrian Copyright Act.
1.4. These GTC apply to digital services with free access via the web, an agreed test phase ("Proof of Concept Phase"), as well as in operational regular operation ("License Phase").
1.5. The Client can view the current version of the GTC on the website www.augedo.com/agb.
1.6. The Contractor reserves the right to amend these GTC if necessary for important reasons, particularly due to technical changes and developments as well as a changed legal situation. Any changes will be communicated to the Client by email. The Client has the opportunity to agree to the change of these GTC within 14 days after receiving the email. If timely consent is not given, the Contractor is entitled to extraordinary termination in accordance with point 13.5 of these GTC.
2. Subject of the Contract
2.1. The Contractor provides IT services for the Client and makes digital services available to the Client for use from the agreed date in accordance with the provisions of these GTC and provides any additional services (the "SaaS Services") depending on the individually agreed service packages. Specifications of the SaaS services are to be agreed in writing between the contracting parties.
2.2. It is expressly pointed out that a barrier-free design according to the Federal Act on the Equal Treatment of Persons with Disabilities (Federal Disability Equality Act – BGStG) is not offered by the Contractor unless it has been separately/individually requested by the Client. If the barrier-free design has not been expressly agreed, it is the responsibility of the Client to check the SaaS services for their admissibility with regard to the Federal Disability Equality Act.
3. Conclusion of Agreements
3.1. The scope of services to be provided by the Contractor is to be agreed individually by acceptance of the Contractor's offer by the Client (the "individual contractual agreement").
3.2. In his order request, the Client must specify how many users are to participate in the Proof of Concept Phase (if one is agreed) and how many users are to participate in the operational regular operation.
3.3. The Client's order requests to the Contractor or a representative of the Contractor are non-binding invitations to the Contractor to submit an offer.
3.4. The Contractor is free to send an offer to the Client and determine the conditions. The Contractor is only obliged to the extent specified in the offer.
3.5. The offer is sent in writing by email or by postal letter. The individual contractual agreement is legally binding only upon acceptance of the offer by the Client, which must be sent to the Contractor by email or postal letter within the period specified in the offer.
3.6. According to the individual contractual agreement, the Contractor's SaaS services are provided in accordance with point 8. The Contractor assumes no warranty or liability for successful operational use or for achieving the proof of concept.
4. Client's Duties to Cooperate
4.1. The Client is responsible and obliged to:
a) not misuse the SaaS services and not introduce any data into the Contractor's system that contains harmful software programs and impairs the availability of the system for the Contractor and its customers;
b) unless expressly included in the scope of services by the Contractor in the individual contractual agreement - to ensure at his own expense and risk a sufficient network connection (Internet) for the use of the SaaS services and an up-to-date software version on the Client's device;
c) provide the Contractor with all information required to determine the specifications of the Digital Services;
d) treat the access data (passwords, login data, etc.) required for the use of the Contractor's SaaS services confidentially and prevent unauthorized access by third parties to the SaaS services through appropriate measures;
e) appropriately reference content generated within the SaaS services with artificial intelligence and comply with legal principles in dealing with artificial intelligence;
f) obtain and comply with any official approval conditions for the use of the SaaS services; and
g) bear any tax liabilities arising from the individual contractual agreement, such as transaction fees or withholding taxes, and hold the Contractor harmless and indemnified.
4.2. The Client is liable to the Contractor for any breach of the obligations assumed in point 4.1 and holds the Contractor harmless and indemnified against any claims by third parties.
5. Support
5.1. The Contractor provides technical and professional support services for the Client and its employees who use the SaaS services during its business hours (weekdays from 10:00 to 18:00) and can be reached at support@augedo.com.
5.2. The support services are provided free of charge by the Contractor to the usual extent unless otherwise agreed individually. If a support requirement arises that goes beyond the usual scope and is not caused by a defect within the meaning of point 9.4, the Contractor may demand a fee of EUR 180,- net per started working hour per employee after prior notification to the Client.
6. Granting of Rights
6.1. The Client receives the non-transferable, non-exclusive, non-sublicensable right, limited to the term of the individual contractual agreement, to use the SaaS services in unaltered form (the "Usage Right").
6.2. The Usage Right ends automatically (a) with the expiration of the Proof-of-Concept Phase, unless a License Phase has been agreed between the Contractor and the Client, or (b) with the termination of the License Phase in accordance with point 13.4.
6.3. The use of the SaaS services is only permitted for the number of users defined in the contract. For simultaneous use, a separate usage right is required for each simultaneous user.
6.4. All other rights to the SaaS services are reserved by the Contractor. Without its prior written consent, the Client is not entitled, notwithstanding the provisions of §§ 40d and 40e of the Austrian Copyright Act, to reproduce, modify, make available to third parties, or use them on hardware components other than those defined in the individual contract.
6.5. All offer and project documents may also not be reproduced or modified without the Contractor's consent, nor made available to third parties. They must be returned to the Contractor immediately upon request or demonstrably destroyed if a contract between the Contractor and the Client regarding the subject matter does not come into effect or is terminated in accordance with point 13 of these GTC.
6.6 The Contractor receives the non-transferable, non-exclusive, non-sublicensable right to use all data arising from the use of the digital services (including interaction data, text data, and rating data) in an anonymized manner to improve the digital services. This includes both optimizations of the user experience of the digital services and the training of algorithms (e.g., artificial intelligence models). Data that is manually uploaded by the Client into the system is explicitly excluded from this. In particular, persona descriptions and entire texts that serve as examples.
7. Usage Fee
7.1. When providing the contractual products during the Proof of Concept Phase, a one-time usage fee is charged, with 50% of the usage fee to be reimbursed within 14 days after acceptance of the Contractor's offer and 50% at the start of the Proof of Concept Phase.
7.2. During the License Phase, the Contractor is entitled to payment of an ongoing usage fee by the Client.
7.3. The amount of the one-time and/or ongoing usage fee is to be agreed individually. All amounts stated in advertising materials, on the website, or the like regarding the usage fee to be paid by the Client are non-binding.
7.4. The value stability of the ongoing usage fee is expressly agreed. The measure for calculating the value stability is the consumer price index 2023 (base year 2023) published monthly by Statistics Austria or a successor index. The reference value for the contract agreed between the Client and the Contractor is the index number calculated for the month of the contract conclusion (acceptance of the offer by the Client). All change rates are to be calculated to one decimal place.
7.5. When providing the contractual products in the License Phase, an annual usage fee ("Annual Usage Fee") is charged for all granted usage rights (depending on the individual contractual agreement). Unless otherwise agreed individually, one-time usage fees are charged after the service is provided, and ongoing usage fees are charged annually in advance.
7.6. The Contractor has the right to send the invoice electronically to the email address provided by the Client.
7.7. The invoices issued by the Contractor, including VAT, are payable without any deduction and free of charge within 14 days of receipt of the invoice. The payment terms set for the overall order apply analogously to partial invoices.
7.8. If the Client is in default of payment, the Contractor is entitled to charge default interest at the statutory rate according to § 456 UGB and to claim any higher default damage. In the event of the Client's payment default, the Client must bear the costs for reminder and collection expenses. The Contractor is also entitled to make the usage fee for all services already provided due immediately, regardless of any separately agreed payment terms.
7.9. In the event of the Client's payment default, the Contractor is also entitled to transmit the name, (company) address, profession (industry), gender (business form), the outstanding balance, and the reminder data of the Client, in accordance with Art 6 Abs 1 lit f of the General Data Protection Regulation (GDPR), to collection agencies authorized to collect claims.
8. Provision and Implementation of SaaS Services
8.1. The Contractor owes the availability of the SaaS services from the individually agreed date on the agreed website (the "Provision").
8.2. The Client's access to the SaaS services is browser-based via the Internet. For access and use of the SaaS services, the Contractor will provide the Client with the necessary access data (passwords, login data, etc.) required for access to the service.
8.3. If the provision of the SaaS services is delayed due to a circumstance that has occurred at the Contractor for reasons of force majeure, an appropriate extension of the provision period will be granted. Force majeure includes strikes, lockouts, official interventions, energy and raw material shortages, pandemics, unintentional transport bottlenecks, unintentional operational disruptions such as fire, water, and machine damage, and all other unforeseen obstacles that have not been culpably caused by the Contractor from an objective point of view.
9. Warranty
9.1. The Contractor warrants compliance with the specifications agreed upon at the time of contract conclusion, provided that the SaaS services are used under the applicable conditions of use. No warranty claims can be derived from information in catalogs, brochures, advertising materials, and written or oral statements that have not been included in the individual contractual agreement, nor can liabilities be established.
9.2. Unless otherwise agreed individually, the statutory warranty period of two years from provision applies, which is the time of activation of the SaaS services for the Client's production system or the conversion from the test system to the production system by the Client.
9.3. The existence of defects must be proven by the Client. The applicability of § 924 ABGB is excluded.
9.4. A prerequisite for asserting warranty claims is an immediate inspection or examination of the SaaS services by the Client upon acceptance and an immediate written notice of defects in the sense of §§ 377 and 378 of the Commercial Code (UGB), in which the Client must provide the best possible description of the deviation from the specification, the operating steps that led to the defect, and the error message of the SaaS services.
9.5. Defects are functionally disruptive deviations from the individually agreed SaaS services. Prerequisites for any defect rectification are that
a) it is a functionally disruptive deviation;
b) the Client has installed any new versions and updates offered free of charge within the warranty period;
c) the Contractor receives all necessary documents and information from the Client for defect rectification;
9.6. Furthermore, a change in the originally configured hardware configuration by the Client or third parties also leads to the expiration of the warranty.
9.7. The Contractor also assumes no warranty
a) for third-party software that is not part of the contract;
b) for the cooperation of the SaaS services with other software programs used or planned by the Client; or
c) for merely short-term, software-typical functional interruptions or disturbances.
9.8. Improper handling or errors in the operation or use of the SaaS services by the Client or third parties also lead to an exclusion of the warranty.
9.9. Further claims based on the defectiveness of the SaaS services are excluded, except for those under this point 9.
10. Liability for Damages - Limitation of Liability
10.1. Apart from personal injuries, the Contractor is liable for property damage, particularly for data loss or damage to software or hardware, to the Client only for intent or gross negligence.
10.2. The Contractor's liability expires 6 (six) months from the Client's knowledge of the damage and the injuring party, but in any case, 3 (three) years after the provision of the SaaS services.
10.3. The Contractor's total liability in cases of gross negligence is limited to the amount of the annual usage fee to be paid by the Client for the year in which the damage occurred, or to EUR 5,000, whichever is lower. Per damage event, the Contractor's liability is limited to 20% of the amount of the annual usage fee to be paid by the Client for the year in which the damage occurred, or to EUR 1,000, whichever is lower.
10.4. The Contractor is not liable
a) in the cases mentioned in points 9.6 to 9.8;
b) for damages resulting from incorrect installation or use, misuse, negligence, or other reasons than the normal use of the SaaS services;
c) for the replacement of consequential damages, pure financial losses, indirect damages, production downtimes, financing costs, costs for replacement energy, loss of energy, data or information, lost profits, unrealized savings, interest losses, and damages from claims by third parties against the Client;
d) for minor deviations from the agreed specifications or for only minor restrictions on the applicability of the ordered SaaS services, without a functional disruption;
e) for damages directly or indirectly attributable to instructions or communicated specifications of the Client, improper handling, intentional damage, negligence, abnormal working conditions, or unauthorized changes to the SaaS services by the Client;
f) for non-compliance with any conditions for implementation and use (as contained in operating instructions) or official approval conditions;
g) damages to the Client's customers, or
h) for unauthorized access to partner or customer data by third parties.
10.5. The provisions of this point 10 apply conclusively to all claims of the Client against the Contractor, regardless of the legal basis and title, and are also effective for all employees, subcontractors, and sub-suppliers of the Contractor.
11. Set-off, Retention
11.1. The Client's right to set off counterclaims against the Contractor is excluded, except in the following cases:
a) the Contractor is insolvent; or
b) the Client's counterclaim is legally related to the Client's obligation and has been acknowledged or judicially determined by the Contractor.
11.2. A right of retention for the Client is excluded.
12. Defense of Industrial Property and Copyrights
12.1. The Client will support the Contractor in defending against all claims based on the fact that the SaaS services used in accordance with the contract infringe an effective industrial property right or copyright of third parties under Austrian law. The Client will notify the Contractor in writing without delay if such claims are made against him and, in the event of a legal dispute, will issue a notice of dispute to give him the opportunity to join the proceedings.
12.2. If claims are made for the infringement of property rights for which the Contractor is responsible, the Contractor may, at its own expense, change, replace, or obtain a usage right for the SaaS services. If this is not possible with reasonable effort, the Client must return all access data to the SaaS services, including any provided documents, to the Contractor upon request, against reimbursement of the fee. This conclusively regulates all claims of the Client regarding the infringement of industrial property rights and copyright, excluding any further obligations of the Contractor.
12.3. For software programs for which the Contractor only has a derived usage right (the "Third-Party Software"), the usage conditions agreed between the Contractor and its licensor apply additionally and take precedence over the present conditions, insofar as they affect the Client (such as the End User License Agreement). The Contractor will point this out and make them available to the Client upon request.
12.4. The Client is responsible for safeguarding all rights of the Contractor (such as industrial property rights, copyright, including the right to a copyright notice) to the SaaS services and for safeguarding the Contractor's claims to confidentiality of business and trade secrets, even by employees and agents of the Client or third parties; this also applies if the SaaS services have been changed and/or combined with other programs with the prior written consent of the Contractor. This obligation remains in effect even after the termination of the contract.
13. Duration and Termination of the Contract
13.1. The contract term begins with the acceptance of the offer and ends automatically (a) with the expiration of the Proof-of-Concept Phase unless a License Phase has been agreed between the Contractor and the Client or (b) with the termination of the License Phase.
13.2. Unless otherwise agreed individually, the Proof of Concept Phase begins no later than 4 weeks from the start of the contract and ends no later than 8 weeks after the start of the Proof-of-Concept Phase.
13.3. The License Phase begins at the earlier of either
(a) the individually agreed start of the License Phase or
(b) the time of provision of the SaaS services.
13.4. The License Phase is concluded as an annual package with a term of one year. Ordinary termination of the individual contractual agreement during the License Phase is possible with a notice period of at least three months before the end of the term. The termination must be sent in writing by email or postal letter. If the contract is not terminated in time, it is automatically extended by one year.
13.5. The contracting parties have the right to terminate the individual contractual agreements at any time and without notice for important reasons if one of the contracting parties violates essential provisions of the individual contractual agreement (including these GTC) and does not remedy this violation (if it is remediable) within 14 days after a corresponding request by the other contracting party. The Contractor may particularly refuse further performance and terminate the individual contractual agreements with immediate effect if:
a) the Client violates or disputes its duties to cooperate according to point 4 or point 12 and/or a payment obligation to the Contractor;
b) insolvency proceedings are opened over the Client's assets, or an application for the opening of such proceedings is rejected due to lack of cost-covering assets, or the conditions for the opening of such proceedings or the rejection of such an application exist;
c) if there is a justified suspicion based on information from courts, authorities, and/or other third parties that the data stored by the Client in the Contractor's digital services is illegal and/or infringes the rights of third parties.
13.6. The Client is liable for all damages (e.g., downtimes, etc.) incurred by the Contractor due to a violation of the essential provisions of the individual contractual agreements (including these GTC).
14. Data Protection
14.1. The Contractor will comply with the provisions of the Data Protection Act (DSG), the General Data Protection Regulation (GDPR), and the Telecommunications Act (TKG) when handling personal data and will take the necessary technical and organizational measures for data protection within the Contractor's area of responsibility.
14.2. The Contractor obliges its employees to comply with the provisions of § 6 of the Data Protection Act.
14.3. To ensure the protection of the Client, all communication with the Contractor will be encrypted via the HTTPS protocol.
14.4. The privacy policy according to Art 13 and 14 GDPR is visible on the website (augedo.com), and the data processing agreement according to Art 28 Abs 3 GDPR can be requested at privacy@augedo.com.
14.5. The Contractor will take appropriate measures against data loss and to prevent unauthorized access by third parties to the Client's data. Even after the termination of the individual contractual agreement, the Contractor will store the data for the duration of the tax and commercial law retention periods.
15. Marketing Activities
15.1. The Client agrees until revoked that the Contractor is entitled to list the Client as a customer reference on its own website and in marketing materials with an image, company name, and content of the collaboration.
15.2. The Contractor is entitled to report on the contract conclusion and collaboration with the Client, including the mention of the Client's name and use of a company profile, in the context of marketing activities, including announcements to the press and on common social media platforms.
15.3. The Contractor is entitled to list the Client as a reference on its website and marketing materials.
15.4. Furthermore, the Contractor is entitled to use a link with automatic connection to the Client's website in marketing materials, the website, and on the Contractor's social media pages.
15.5. The contracting parties will strive to professionally present the collaboration in all marketing activities.
16. Confidentiality
16.1. The contracting parties undertake, unless a separate written agreement is made, to treat all trade secrets brought to their attention in connection with the individual contractual agreement and its execution, as well as all documents, data, and other information received in this context, regardless of how and in what form they are received, as strictly confidential and not to exploit them. This confidentiality obligation does not apply to information that
a) is generally known or was already known to the recipient without an obligation of confidentiality,
b) is communicated or provided to the recipient by a third party without an obligation of confidentiality,
c) has been independently developed by the recipient, or
d) must be disclosed due to a legally binding official or judicial decision.
16.2. This confidentiality obligation does not apply to information that is already publicly known at the time of the conclusion of this contract or later becomes publicly known without the respective contracting party being responsible for it or is later known to the contracting party without violating confidentiality obligations.
16.3. The confidentiality obligation does not apply to authorities, legally obligated advisors of the contracting parties, or subcontractors associated with the Contractor, provided they are also subject to a confidentiality obligation in accordance with this point 16.
17. Applicable Law; Jurisdiction
17.1. The contract is subject to Austrian law, excluding the conflict of law rules.
17.2. The exclusive place of jurisdiction for all disputes arising from and in connection with this contract is the court responsible for commercial matters for Vienna Inner City.
18. Mediation
18.1. In the event of disputes arising from this contract that cannot be resolved amicably, the contracting parties agree to involve registered mediators (ZivMediatG) with a focus on business mediation from the list of the Ministry of Justice for the out-of-court settlement of the conflict. If no agreement can be reached on the selection of business mediators or on the content within a period of no more than one month, each contracting party is entitled to initiate legal proceedings regarding this dispute.
18.2. In the event of a failed or aborted mediation, Austrian law applies in any court proceedings that may be initiated.
18.3. All necessary expenses incurred due to prior mediation, including those for a legal advisor, can be claimed as "pre-litigation costs" in a court or arbitration proceeding by agreement.
19. Succession Clause
19.1. The transfer of rights and obligations from these GTC or an individual contractual agreement to third parties requires the prior express written consent of the respective other contracting party.
19.2. However, the Contractor is entitled, without the Client's consent, to transfer all rights and obligations from these GTC and the individual contractual agreements with discharging effect to a company affiliated with the group; this also applies in the form of a contribution, conversion, or new formation or other legally permissible form of transfer.
20. Final Provisions
20.1. Should any provision of these GTC be wholly or partially invalid or unenforceable, this does not affect the validity or enforceability of the remaining provisions. The invalid or unenforceable provision will be replaced by a valid or enforceable provision that comes as close as possible to the economic content of the invalid or unenforceable provision. The same applies accordingly to any gaps in this contract.
20.2. Changes or additions to these GTC require a written agreement signed by all contracting parties to be effective. This also applies to the waiver of the written form requirement.
20.3. References to legal provisions refer - unless expressly stated otherwise - to Austrian legal provisions in the version valid at the time of signing this contract.
20.4. These GTC are valid from 01.11.2023
