GENERAL TERMS AND CONDITIONS OF USE OF PROJECT K GMBH, FN 486142 S WITH SEAT IN 6020 INNSBRUCK (HEREINAFTER REFERENCE TO THE PROJECT K)
1.APPLICATION, CONCLUSION OF CONTRACT
Project K concludes contracts with its contractual partners - even without reference in individual cases - solely on the basis of these General Terms and Conditions of Use (hereinafter referred to as "GTC"). Deviating terms and conditions of a contract partner are only valid with a separate written agreement. If such a delivery of conditions of the contractor, this waives the resulting legal effects. The terms and conditions remain valid even in case of any invalidity of individual provisions otherwise.
1.2 Project K provides its contracting party with a push service in the form of a code, which can be incorporated by registered contractual partners on its website and used for the transmission of messages to the contracting party (hereinafter referred to as "services"). These terms and conditions also apply to all other services offered on the website PushPanda.io as well as on the subdomains, even if not expressly referenced. It is expressly stated that these terms and conditions apply exclusively to contracting parties who are entrepreneurs. As far as the contracting party is to be regarded as a consumer within the meaning of § 1 KSchG [Consumer Protection Act], these terms and conditions [GTC] do not apply.
1.3 Any cancellation, complement or amendment of the GTC or of contracts between Project K and contractual partners must be in writing in order to be valid. This also applies to the departure from the written form requirement. Project K reserves the right to change these terms and conditions at any time with effect even within the existing contractual relationships. Such changes will be communicated to Project K at least 30 calendar days prior to the planned entry into force of the changes. If the contractual partner does not object within 30 days of receipt of the notification and continues to use the services even after expiry of the opposition period, the changes shall be deemed to have been validly agreed as of the expiry of the deadline.
1.4 These terms and conditions also apply to all future business, as far as the contracting parties do not explicitly and in writing agree otherwise. On the use of the services, the terms and conditions in the currently valid version apply; the current version is available on the website PushPanda.io.
1.5 The contractor acknowledges that Project K attributable persons are not authorized to make any statements that depart from these terms and conditions or other statements of Project K.
1.6 Verbal statements are only effective insofar as they are confirmed by the company Project K in writing.
2. CONCLUSION OF CONTRACT / PRICE DESIGN / CASE REPRESENTATION
2.1 Quotations from Project K are generally non-binding and can be modified or revoked for Project K even after the opinion of the contracting party has been received. All information in brochures, circulars, catalogues, advertisements, price lists, etc. are also not binding.
2.2 All prices quoted by Project K are exclusive of VAT, unless otherwise noted.
2.3 A condition for the use of the services is a registration of the contracting party. The completion and submission of the registration form constitutes an offer by the contracting party to sign a contract with Project K. Tenders submitted to Project K by its contractors will only be accepted by Project K through written declarations of acceptance or fulfilment. The contracting party is bound to his offer from receipt for four weeks. Project K is entitled at any time not to accept the offer of contractual partners without giving reasons. Contracting parties who have websites in the field of adult entertainment, pornography, in the area of radical political or religious sentiment or in any other area that offend common decency (spam sites etc.) or those that violate child protection regulations, data protection laws and / or other laws in no case can contracts be terminated with Project K.
2.4 The contracting party undertakes to provide complete and correct information that is to be given in the registration form. Contractual partners, which are partnerships or legal persons, must additionally indicate the natural person who is entitled to represent.
2.5 After checking the details of the contracting party and acceptance of the offer by Project K, the contracting party will receive an e-mail with a link through which he can download the code of the chosen service. The e-mail is deemed to be an acceptance of the offer and the contracting party is entitled to implement the service on its web page within the scope of the contractual agreement and these terms and conditions.
2.6 If an order is accepted by Project K without prior offer or if services are performed which were not expressly included in the order, Project K may claim the fee which corresponds to its currently valid price list o-its usual rate.
2.7 The scope of a specific order is contractually agreed in individual cases. Subsequent changes to the service content of the order require the written confirmation of Project K. Within the framework specified by the contracting party, there is freedom of design of Project K. in fulfilling the order.
2.8 Project K is entitled to have all or part of its duties performed by third parties. The payment of the third party is made exclusively by Project K itself. There will be no direct contractual relationship of any kind between the third party and the contracting party.
2.9 The contracting party undertakes not to enter into any business relationship with any person or company during which Project K will fulfill its contractual obligations during and for a period of three years after termination of this contract.
3. CONTRACTUAL PROCESSING, OBLIGATIONEN OF ENLIGHTENMENT OF PROJECT K / COMPLETE STATEMENT
3.1 All services of Project K, in particular all electronic files, etc., must be reviewed by the contracting party and released by him within three working days from receipt by the contracting party. In the absence of timely feedback, these are considered approved.
3.2 The contractor will provide Project K with timely and complete access to all information and documents necessary for the provision of the service and services. He will inform you of all circumstances that are important for the execution of the contract or the services, even if they become known only during the execution of the contract or the services. The contracting party shall bear the expenses resulting from the fact that work must be repeated or delayed as a result of its incorrect, incomplete or subsequently changed information from Project K.
3.3 The contracting party is further obliged to check the documents (photos, logos, etc.) provided for the execution of the order or the services for any copyright, trademark, trademark rights or other rights of third parties (rights clearing) and guarantees that the documents are free from the rights of third parties and can therefore be used for the intended purpose. In case of mere negligence or fulfilment of its obligation to warn - at least in the internal relationship with the contracting party - Project K is not liable for infringement of such rights of third parties by means of documents made available. If Project K is claimed by a third party for such an infringement of rights, the contracting party shall indemnify and hold Project K harmless and to assist in defending against possible claims of third parties. The contractual partner shall provide Project K with all documents without being requested to do so.
4. DESCRIPTION OF SERVICES
4.1 Prerequisite for the use of the services by the contracting party is the registration with a user ID and a password ("Account" for short).
4.2 The data for the access authorization must be handled confidentially by the contracting party and not be passed on to third parties. Should these data be misused due to the fault of the contracting partner, the latter is liable for any damages incurred. If it is to be feared that unauthorized third parties will be aware of or gain access to the access data, Project K must be informed immediately.
4.3 The contractual partner is obliged to keep his data up to date (including the contact details). If a change in the specified data occurs during the contract period, the contracting party must correct the information immediately in his personal settings. If this is not possible, the contracting party must inform the changed data immediately by e-mail.
4.4 With the registration or other use of the information thus provided by the contracting party, the terms and conditions are expressly and bindingly acknowledged by the contracting party.
4.5 The contracting party is not entitled to permanent access to the server of Project K; Project K is free to temporarily shut down the server and change, delete or expand the contents stored there.. Project K strives to provide 99% availability on a monthly average basis for all services in its area of responsibility, without any legal entitlement. In any case, the regular maintenance windows of the service and the website, which are between 0:00 and 6:00 every Sunday, are not included in the calculation of availability. Incidentally, the use of the services offered is limited to the technical and operational possibilities of Project K. For temporary restrictions or interruptions due to technical faults (such as interruption of power supply, hardware and software faults, technical problems in the In any case, data lines are not liable.
4.6 Project K provides different services for use. Project K offers a choice between a free ("startup") and different paid models ("Premium", "Business" and "Enterprise"). The content and scope of the services are governed by the respective contractual agreements, moreover according to the functionalities currently available on the website PushPanda.io. Project K may at any time change the services provided free of charge on the website, provide new services free of charge or against payment and / or cease the provision of free services.
4.7 Registration and use within a possibly agreed test phase is free of charge.
5. LIABILITY OF THE CONTRACTUAL PARTNERS
5.1 The required internet browser software must be procured by the contracting party itself. The contracting party bears the costs incurred for down- and uploading to provider and telecommunication fees, even.
5.2 Each contractual partner bears the full, in particular content-related, responsibility for the contributions, information and data of any kind written and / or published via his / her account as well as for all other publications within the framework of Push-Panda.io.
5.4 The fulfillment of the contract by Project K is subject to the condition that there are no impediments to compliance as a result of applicable legal norms. The Affiliate agrees and expressly warrants that, in connection with the use of the Services, all applicable laws and regulations must be observed and are to be kept.
5.5 The contracting party holds Project K, in particular in the context mentioned here, in case of any claim by third parties, in particular for violation of provisions of these terms and conditions, legal requirements and prohibitions completely harmless and without complaint. This also applies to costs of legal defence on the part of Project K.
6. CONSIDERATION (FEE)
6.1 The amount of the consideration for the use of the services or for the fulfilment of the agreed order corresponds in each case to the agreement between the contracting party and Project K or the respectively current price list of Project K. The fee is payable in each case with accounting by Project K.
6.2 Project K will issue an invoice entitling to input tax deduction with all legally required characteristics.
6.3 Expenses incurred in cash, expenses, etc. shall be additionally reimbursed by the contracting party against invoicing by Project K.
6.4 If the execution of the agreed service or order for reasons that lie on the part of the contractor, or due to a justified premature termination of the contract by Project K, Project K reserves the right to payment of the entire agreed consideration less any expenses saved. If an hourly fee is agreed, the fee is to be paid for the number of hours expected for the entire agreed order less the expenses saved.
7. DURATION OF THE CONTRACT
7.1 This contract ends with the conclusion of the contract or the agreed term. In the absence of such agreement, an indefinite contract is concluded.
7.2 A contract concluded for an indefinite period can be terminated with a notice period of 14 days to the end of the month. Termination shall be effected by the corresponding deregistration in the account area of the contracting party or in writing or by e-mail.
7.3 The contract may nevertheless be resolved at any time for important reasons from each site without observing a notice period. An important reason in particular is to be considered,
7.3.1 if a contracting party violates material contractual obligations or
7.3.2 if insolvency proceedings are opened via a contractual part or the bankruptcy petition is rejected for lack of assets covering costs.
7.4 Project K is further entitled to terminate the contract without notice and to suspend the account and / or the services temporarily or permanently, if
7.4.1 there are concrete indications that the other party has violated or has violated applicable law, or
7.4.2 Project K has any other legitimate interest in the blocking (for example, in the event of rejection of credit card, late payment / returned direct debits, etc.).
7.5 In the event of a temporary suspension, Project K will reactivate the services at the end of the suspension period and notify the other party by e-mail. A permanently locked usage permission can not be restored. Permanently suspended contractors are permanently excluded from using Project K's services and may not re-register.
7.6 A possibly agreed test phase ends automatically, without the need for termination. The test phase is not automatically extended and can be extended in exceptional cases.
7.7 Upon termination of the contract, the contracting party - even if it were still technically possible - no longer has the right to use his account and the service. Project K is entitled to terminate the user name and password after termination of the contract.
8. CONCEPT AND IDEAS PROTECTION, PROTECTION OF INTELLECTUAL PROPERTY
8.1 Unless expressly granted usage rights to the provided coding, such do not exist.
8.2 Project K grants the contracting party - provided that the contractually owed fee has been paid in full - the non-exclusive, temporally limited to the term of this contract and non-transferable right to use the provided code in its agreed version. The right to use always applies only to the latest version of the code provided; When the code is updated, the rights to use the code in the previously provided version expire.
8.3 Copying, processing, free or paid transfer, publication or decompilation of the provided codes is only permitted within the framework of the legal regulations and with the prior written consent of Project K.
8.4 The contracting party shall be liable to Project K for any unlawful use in duplicate of the fees (considerations) payable for such use.
9. PERFORMANCE AND DELAY
9.1 Place of fulfillment for all obligations to be fulfilled by Project K and its contractual partners is A-6020 Innsbruck / Austria.
9.2 If a performance is delayed by a circumstance beyond the control of Project K, the performance period shall be extended appropriately without separate declarations, without Project K having any legal consequences whatsoever, even if Project K itself is already in default with other obligations; in the event of unreasonable difficulty in executing the order, Project K is entitled to withdraw from the contract, excluding any claims for damages.
9.3 If Project K, in case of culpably default, the contracting party may, after expiry of a reasonable additional period of at least four weeks in writing, indicating the legal consequences, either demand fulfilment or declare withdrawal.
9.4 Project K can in any case - without triggering consequences for default - make their performance dependent on the receipt of conditioned down payments, on the fulfilment of all other contractual obligations as well as on the timely payment of other claims.
9.5 To the extent legally permissible, claims for damages - at least in case of slight negligence - are excluded due to a delay on Project K's part.
9.6 In case of impossibility of performance all contractual obligations expire. If the impossibility - but also a delay in performance - caused by contractors of Project K, In any case, the contracting party is not entitled to any claim for damages.
9.7 Project K is entitled to carry out partial services and also to issue partial invoices.
9.8 If the contractual partner does not accept the contractual service at the right place or at the right time, Project K may withdraw from the contract even after setting a grace period of 14 days.
10. PAYMENT, PAYMENT OF PAYMENT DELAY AND SET-OFF
10.1 Unless the contract provides otherwise, the entire fee is due without deduction from the invoice date; a discount deduction is inadmissible. Discounts of any kind granted in individual cases, including discounts, do not constitute a claim of the contracting party for the future grant of same. The contractual partner may not offset against claims of Project K with his claims. Payments Project K can - regardless of its dedication - count on their outstanding claims.
10.2 The agreed fee shall be charged to the contracting party as part of the registration or use of the service specified credit card. Project K uses the service provider Stripe Inc. to process the payments. The contractual partner receives a monthly invoice of the services used by e-mail and / or can retrieve them in his log-in area.
10.3 In the case of non-payment of a due claim by the contracting party, all other claims without an explicit due date are due immediately. The same applies in the event of a substantial deterioration in the financial circumstances of the contracting partner or in the execution of his assets.
10.4 The default of payment occurs automatically without separate declaration. Interest on late payments in the amount of 8% p.a. agreed; any higher damage is to be replaced.
10.5 In the event of default, the contracting party shall be obliged to reimburse all expenses incurred by Project K, including the costs of a lawyer or collection agency, insofar as they are necessary for proper legal prosecution.
11. WARRANTY AND LIABILITY
11.1 Unless special arrangements are made, the statutory warranty period applies.
11.2 Defects must be reported to Project K within eight days by registered letter - with immediate cessation of any processing -; this period expires in the case of open defects from the provision of services and in the case of concealed services. Upon acceptance, obvious defects must be reported immediately.
11.3 The Project K, which has been legally notified of a defect, can fulfill its warranty obligation at its discretion as follows:
11.3.1 Addendum to the missing;
Project K does not undertake any other obligations under the warranty - as far as legally permissible.
11.4 It is the contracting party's responsibility to review the services for their legal, in particular competition, trademark, copyright and administrative admissibility. Project K is only required to conduct a rough review of legal admissibility. In the case of slight negligence or after fulfillment of any warning obligation towards the contracting party, Project K is not liable for the legal admissibility of contents if these have been specified or approved by the contracting party.
11.5 The right to recourse to Project K in accordance with § 933b para 1 ABGB expires one year after delivery / service. The contracting party is not entitled to withhold payments due to complaints. The presumption rule of § 924 ABGB is excluded.
11.6 The operator accepts no liability and guarantee of any kind whatsoever for the timeliness, completeness, punctuality, availability, accuracy or correctness of the data provided on PushPanda.io or on the relevant subdomains or additional websites, also by the contracting parties Information.
11.7 For errors in hardware and software as well as their malfunctions or missing functions, which arise during the online application of the services of Project K, or for other damages, especially those that arise in the use of third parties for storage, Project K takes over no liability.
12. DAMAGES AND PRODUCT LIABILITY
12.1 In case of damages Project K is only liable for intent or gross negligence. Liability for slight negligence is excluded; as well as the replacement of consequential and pecuniary losses, interest losses as well as damages from claims of third parties against the contracting party.
12.2 Any liability of Project K for any claims made against the other party for services or services of any kind by Project K shall be expressly excluded if Project K has fulfilled its obligation to notify or if such is not recognizable to it was, whereby slight negligence does not hurt. In particular, Project K is not liable for litigation costs, the attorney's own legal fees of the contracting party or the costs of publishing judgments as well as for any claims for damages or other claims of third parties; the contracting party shall indemnify and hold Project K harmless.
12.3 Claims for damages of the contracting party expire in six months from the knowledge of the damage; but in any case after three years from the infringing act of Project K.
12.4 In the case of gross negligence, the liability for damages is also limited to the net amount of one month.
13. DATA PROTECTION AND DATA PROCESSING
13.1 The personal data of the contracting party relevant to the business relationship (name, commercial register number, VAT number, address, e-mail address, name of the contact person, account data, etc.) shall be used by Project K pursuant to Art. 6 para 1 lit. contract fulfilment, in particular for communication, for accounting, for the execution of bookings, etc., stored and processed. To process any warranty and damage claims, the data will be stored for 40 months from the date of the respective contract and then deleted.
13.2 Furthermore, Project K reserves the right, in accordance with Section 107 (3) of the Telecommunications Act (TKG) and Article 6 (1) (f) DSGVO, to permanently store the aforementioned personal data for its own advertising purposes and to send out interesting offers and information to use services and offers of Project K by mail or e-mail. The contracting party may object to the processing of his data for this purpose at their collection and at any time thereafter by an e-mail to [email protected].
13.3 Unless this is not necessary for the execution of the contract, the data of the contracting party shall not be disclosed to third parties. In particular, the transfer of data to Stripe Inc. is required for the execution of the contract. Further, the transfer to a collection agency or a lawyer may be required.
13.4 The contracting party has a right to information about personal data concerning him / her, to data portability, to correction or deletion of personal data as well as to restriction or opposition to the processing of his / her personal data. The contractor can exercise these rights by sending an e-mail to [email protected].
14. INTEGRATION OF THIRD PARTIES
14.1 Project K is entitled to commission third parties, in particular with the provision of its maintenance and support of parts or the entire range of services of its services, within the framework of the Internet platform, in particular PushPanda.io.
14.2 The data protection (see point 1.) remains unaffected.
15. ELECTRONIC ATTACKS
15.1 Electronic attacks of whatever nature, on the platform, the database, the network or any related data of Project K or the data of individual contractors are strictly prohibited.
15.2 Any electronic attack leads to an immediate exclusion of the contracting party and will in any case be prosecuted under civil and criminal law.
16. OTHER PROVISIONS
16.1 Insofar as natural terms in this GTC are used only in male form, they refer to women and men in the same way. When applying the name to certain natural persons, the gender-specific form must be used.
16.2 Should provisions of these GTC and / or the agreement reached not be or become legally valid or should there be a loophole in the regulations, the remaining provisions remain valid. Instead of the ineffective provision or to fill the gap, a reasonable provision shall be deemed to have been agreed, which comes closest to the hypothetical will of the contracting parties or would have been agreed according to the purpose of the agreement, if the point had been considered.
16.3 Project K may transfer all or part of its rights and obligations to third parties at any time; a transfer by the contracting party is only permitted with the consent of Project K.
16.4 The legal remedy of cancellation of the contract due to error is excluded.
16.5 Unless the contracting party is a consumer within the meaning of the Consumer Protection Act, all disputes arising out of and in connection with these terms and conditions, the contract, the use of the services and / or the website PushPanda.io and the sub-domains shall be dealt with - by the factual for A-6020 Innsbruck competent court decided; In this case, Project K may also use the contractor at any other legal court.
16.6 Austrian law is expressly agreed with the exception of Austrian international private law and the provisions of the UN Sales Convention; the statutory provisions restricting the choice of law and the applicability of mandatory regulations, in particular of the state in which the customer as a consumer has his habitual residence, remain unaffected.
16.7 The European Commission's online consumer dispute resolution (OS) platform is available at http://ec.europa.eu/consumers/odr/; However, Project K already states that it is neither willing nor obliged to participate in a dispute settlement procedure before a consumer arbitration board.