Software License Agreement
1. Preamble
"All In One Media OG", Am Stadtpark 1, 1030 Vienna, Austria, company register number: 565103i (hereinafter "LICENSER"), offers the software solution "FunnelConsole" (hereinafter the "SOFTWARE"). The SOFTWARE is intended to support the CUSTOMER in establishing a Customer Relationship Management ("CRM"), as well as digital sales and marketing channels.
This license agreement is based on the assumption that the CUSTOMER is an entrepreneur within the meaning of § 1 para 1 no 1 KSchG.
For the purpose of better readability, no gender-specific differentiation is made. This is done without any intention of discrimination. All genders are addressed equally.
This License Agreement governs the acquisition, use and exploitation of the SOFTWARE and the related business and administrative activities.
Business and contractual language is German.
These license terms may be permanently stored on the CUSTOMER's computer and/or printed out by the CUSTOMER for the purpose of online ordering.
2. Usage requirements
The CUSTOMER is obliged to provide true and complete information in the course of the business relationship and to keep his data up to date at all times. He must treat his data confidentially (this applies in particular to any log-in data or passwords). Should the CUSTOMER suspect misuse by third parties, he must inform the LICENSER immediately.
The CUSTOMER shall refrain from any action that could jeopardize or impair the technical provision of the SOFTWARE by the LICENSER (including cyber attacks).
The CUSTOMER has to take appropriate precautions to protect the SOFTWARE from unauthorized access by third parties. The CUSTOMER shall inform its employees or persons similar to employees and end users that the making of copies beyond the contractual scope is not permitted.
It is the CUSTOMER's responsibility to create the necessary infrastructure for the operation of the SOFTWARE. The LICENSER shall have no further obligations to provide information or advice in this regard.
It is the CUSTOMER's responsibility to check the compatibility (i.e. the ability to interact with the CUSTOMER's existing software and hardware infrastructure) and the functional scope of the SOFTWARE before using it against payment. The LICENSER shall have no obligation to provide information, training or installation. The delivery of a manual is expressly not owed.
3. Offer and conclusion of contract
After entering the required data in the web mask provided for this purpose, the CUSTOMER places a binding order with the LICENSER by clicking the corresponding button.
Before finally submitting an order, the CUSTOMER has one more opportunity to check it for any errors and correct it if necessary.
The contract with the LICENSER shall only be concluded if the LICENSER expressly accepts the order ("Order Confirmation") or if the access/password to the SOFTWARE is activated.
The scope of services, the duration of SOFTWARE use and the number of licenses allowed are determined by the CUSTOMER's selected package.
4. Payment modalities
The amount of the remuneration results in each case from the offer of the LICENSER. The prices listed are in EUR. In case of doubt, the value added tax is not yet included. The amounts stated at the time of the order shall apply in each case.
The fee for the use of the SOFTWARE shall be paid in advance.
Notwithstanding the foregoing, claims of the LICENSER shall become due upon invoicing and shall be paid within 10 days without discount.
In the event of a delay in payment of more than 30 days, the LICENSER shall be entitled to withhold its performance vis-à-vis the CLIENT and to block and/or delete the user account for the SOFTWARE without separate notice. Any damage incurred by the CLIENT or its end customer or third parties as a result thereof cannot be claimed at the expense of the LICENSER.
If the receivables are not paid within ten days, the LICENSER shall charge the legally permissible interest on arrears within the meaning of Section 456 of the Austrian Commercial Code (UGB) as of the due date. For reminders, an expense allowance of EUR 40.00 per (§ 458 UGB) reminder can be charged.
5. Permission for use of works
The LICENSER grants the CUSTOMER a non-exclusive license to use the SOFTWARE, limited in content, time and place for the purposes of the business relationship (in the sense of § 24 para 1 first sentence UrhG).
Unless expressly agreed otherwise, the period of use shall be 1 year from the date of conclusion of the contract.
The exclusive right to use the SOFTWARE (within the meaning of Section 24 (1) second sentence UrhG) shall in any case remain with the LICENSER.
The rights of use agreed within the meaning of this contract shall only be granted to the CUSTOMER after full payment of all fees to the LICENSER.
Sublicensing or further licensing is only permitted with the express consent of the LICENSER.
The right to decompile the SOFTWARE is excluded to the extent permitted by law. The CUSTOMER may not make any changes to the SOFTWARE without the consent of the LICENSER. A use of works in the sense of § 40d UrhG remains thereby unaffected.
Markings of the SOFTWARE, especially copyright notices, trademarks, serial numbers or similar may not be removed, changed or made unrecognizable.
The release of the source code of the SOFTWARE is not owed. Neither is a user manual owed, nor the performance of training.
6. Audit clause
The LICENSER has the possibility to check the compliance of the license-compliant use of the SOFTWARE. Irrespective of this, the LICENSER may demand proof from the CUSTOMER that the SOFTWARE is used in a license-compliant manner. Inquiries in connection with the license-compliant use of the SOFTWARE must be answered truthfully.
The LICENSER shall be entitled to check the CUSTOMER's compliance with the legally compliant use of the SOFTWARE on site at any time after giving at least 14 days' notice (license audit). The LICENSER may use the services of an auditor or lawyer bound to secrecy for this purpose. In doing so, the LICENSER shall respect the CLIENT's business and trade secrets and data protection interests to the best of its ability. The audit shall be carried out during regular business hours, sparing the CUSTOMER's operational activities. The costs incurred in this connection shall be borne by each party. The CLIENT is obliged to provide the LICENSOR with the information required for these purposes and to cooperate with the LICENSOR in the course of the license audit. Otherwise, the LICENSOR shall be entitled to withhold its services. This shall be without prejudice to any further legal claims.
7. Maintenance and support
Unless expressly agreed otherwise, no maintenance or support services are owed.
8. Change requests
The CUSTOMER is entitled to suggest changes to the SOFTWARE. The LICENSER is not obligated to comply with these change requests.
The LICENSER shall be entitled to charge a separate fee for the implementation of the change requests. In this case, the LICENSER shall send the CLIENT a corresponding offer for the implementation of the change requests in advance.
In this case, as is generally the case for services not already covered by the flat rate, an hourly rate of EUR 300.00 plus VAT shall apply. This also applies to any maintenance services.
The LICENSOR shall be solely and exclusively entitled to the copyright exploitation rights to these modifications, unless expressly agreed otherwise. However, the LICENSOR shall grant the CLIENT a license to use these modifications for the duration of the contractual relationship within the meaning of Section 24 (1) first sentence UrhG.
The exclusive right to use the work (within the meaning of Section 24 Αbs 1 second sentence UrhG) for modifications within the meaning of this paragraph shall in any case remain with the LICENSER.
9. Cooperation obligations
The CUSTOMER is obliged to cooperate to the extent required for the use of the SOFTWARE. The LICENSER shall not suffer any disadvantages if the CUSTOMER fails to comply with this obligation to cooperate.
10. Service disruptions
If the LICENSER is temporarily unable to provide the SOFTWARE for reasons beyond its control (e.g. power failure, force majeure, cyber attacks, epidemics, problems with third-party software), the CUSTOMER's (full) payment obligations shall remain unaffected.
11. Liability for damages and warranty
The LICENSOR's liability for slight negligence is excluded. The liability is limited to the amount of the annual order value, but in any case to usually foreseeable damages.
The liability of the LICENSER for loss of profit of the CLIENT is excluded.
Warranty claims expire within twelve months from acceptance of the SOFTWARE. Obligations to give notice of defects in the sense of § 377 UGB (Austrian Commercial Code) shall be complied with. The time of acceptance of the SOFTWARE shall be the time of conclusion of the contract.
The LICENSER is not liable for third-party software, open source elements and software elements (plug-ins, library files) that have not been released by the LICENSER. Likewise, the LICENSER shall not be liable for software elements (plug-ins) programmed by the CUSTOMER himself.
The LICENSER shall not be liable for any unlawful (in particular, but not exclusively, in the sense of the GDPR) implementation and/or use of the SOFTWARE in the relationship of the CUSTOMER towards the end user.
The agreed limitations of liability shall also apply to subcontractors engaged by the LICENSER.
In case of using a free variant, all warranty claims are excluded.
12. Indemnity and hold harmless
In the event that a claim is made against the LICENSER by a third party due to the unlawful use of the SOFTWARE by the CUSTOMER, the CUSTOMER agrees to indemnify and hold the LICENSER harmless.
13. Involvement of subcontractors
LICENSOR may use subcontractors to perform its obligations under this Agreement.
14. Changes to the license agreement
The LICENSER is entitled to amend this License Agreement at any time. The LICENSER shall inform the CUSTOMER of such amendments by sending the amended license agreement to the contact details last notified to it. The CUSTOMER shall have the right to object to this amendment. If the CUSTOMER does not object within 14 days of this amendment being sent, implied consent to the amendment of the license agreement shall be assumed.
15. Data protection and protection of business and trade secrets
The disclosure of data and information to the respective required business partners is permitted to the extent necessary for the fulfillment of the contractual relationship and by law (Art 6 para 1 lit b and c DSGVO). Otherwise, the LICENSER and the CUSTOMER shall be mutually obliged to maintain secrecy with regard to the circumstances and data relating to the other party of which they become aware as a result of the present business relationship and, in particular, to observe data secrecy. These obligations regarding data and business secrecy shall also apply beyond the contractual relationship. The LICENSER and the CUSTOMER further undertake to instruct and instruct their employees and vicarious agents in this sense.
The contracting parties further undertake to protect mutually disclosed business and trade secrets appropriately within the meaning of 26b para. 1 no. 3 UWG.
It is pointed out that the source code programmed by the LICENSER constitutes a trade and business secret in the sense of § 26b UWG. Any publication of the source code therefore requires the express consent of the LICENSER.
The LICENSER informs that data of the CLIENT may be processed for advertising purposes based on legitimate interests (Art 6 para 1 lit f DSGVO). The CUSTOMER is entitled to object to the processing of his data for advertising purposes (Art 21 para 2 DSGVO).
If the LICENSER processes personal data of the CLIENT on behalf of the CLIENT, the contracting parties shall conclude a contract processing agreement pursuant to Art. 28 DSGVO. In this case, the order processing agreement shown in Annex 1 shall be deemed to have been agreed.
16. Reference clause
The LICENSER shall be entitled to indicate the fact of the business relationship with the CLIENT by a reference on its homepage or in business papers. In this context, the LICENSER is entitled to use the logo of the CLIENT. This right to reference also extends beyond the contractual relationship.
17. Duration of the contractual relationship
The duration of the contractual relationship shall be based on what the contracting parties have agreed. If a fixed contract term has been agreed, ordinary termination shall be excluded for this term. If the contract is not terminated in writing within a notice period of one month to the end of the contract period, the contractual relationship shall be extended again by the originally agreed contract period. This shall apply mutatis mutandis to the following contract periods.
If no fixed contract term has been agreed, the following shall apply: The contractual relationship is concluded for an indefinite period. Ordinary termination is possible with 14 days' notice to 31.3., 30.6., 30.9 or 31.12.
18. Blocking access to the SOFTWARE
If the LICENSER has reasonable grounds to believe that the CUSTOMER is using the SOFTWARE in an unlawful manner, the LICENSER shall be entitled to block access to the SOFTWARE immediately and without prior notice. This shall be without prejudice to the possibility of further legal remedies.
19. Jurisdiction and applicable law
This contractual relationship shall be governed by and construed in accordance with Austrian law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and of conflict-of-law rules is excluded.
The exclusive place of jurisdiction is the competent court in Vienna, Austria.
20. Miscellaneous
If any part of this license agreement should be invalid, the validity of the remaining provisions shall not be affected thereby. The invalid provision shall be replaced by a valid provision that comes as close as possible to the economic intent of both parties as discernible from the agreement.
The LICENSER recommends the CUSTOMER to save this license agreement permanently.
