General Terms and Conditions for the White Label Solution “SEM”

  1. Scope of application
    1. These General Terms and Conditions (hereinafter: GTC) apply to the use of the white label solution SEM (hereinafter: SEM) offered by seminargo GmbH (hereinafter: seminargo) as Software as a Service (hereinafter: SaaS).
    2. Upon conclusion of the contract for the use of SEM, the contractual partner confirms its agreement with the following terms and conditions.
    3. Individual agreements made with the customer in individual cases always take precedence over these GTC. Subject to proof to the contrary, a written contract or written confirmation by seminargo is decisive for the content of such agreements.
  2. Subjct matter of the contrct
    1. The subject of this contract is the provision of SEM and the backend as a white label solution against payment of the agreed fee.
    2. In order to use the functionalities of SEM, a website accessible on the Internet in a current version of the most common Internet browsers is required.
    3. The services of seminargo include the permanent provision of SEM and the backend for retrieval via the Internet within the scope of the agreed availability.
    4. The specific content of the services owed by seminargo results from the individual contract together with any agreed contract amendments and supplements. If, by way of exception, no individual contract exists, the specific content of the service is set out in the order confirmation or the offer from seminargo. seminargo is entitled to minor deviations from the agreed service provision, provided that these do not impair the quality of the service and are reasonable for the customer.
    5. As long as services of seminargo are free of charge for the customer, the services of seminargo are purely voluntary and the customer has no claim against seminargo for continuation of the services. seminargo reserves the right to discontinue the free services at any time without prior notice. In this respect, the customer is also not entitled to receive updates.
    6. seminargo may also provide its services through third parties.
  3. Provision of the service
    1. From the time agreed in the contract, seminargo shall provide SEM in the current version on a central server or in a cloud solution for use in accordance with the following provisions.
    2. seminargo shall provide the contract partner with the user names and user passwords for access with admin rights to SEM as far as agreed. The passwords must be changed immediately by the contract partner to passwords known only to him. Further security measures can be agreed separately under certain circumstances.
    3. seminargo shall provide storage space on the server or in the cloud hosting solution from the agreed time of provision for the data required by the contractual partner through the use of SEM (hereinafter referred to as “data”).
    4. The customer has no claim to the provision of the source code, templates or other source products. The customer is also not entitled to receive updates.
    5. seminargo grants the customer a simple right of use to SEM. If the right of use has been granted to the customer free of charge, it is only of a contractual nature and can be terminated by seminargo at any time.
    6. SEM and the data are backed up regularly, at least every calendar day. The data generated and created by the contract partner will be stored by seminargo for a maximum period of 2 years. After expiry of this period, the data will be completely deleted even if the contract continues to exist. The customer is responsible for compliance with retention periods under commercial and tax law.
    7. After termination of the contract, seminargo is entitled to delete all customer content stored in the backend, in particular texts and price lists. The deletion shall take place at the earliest 180 calendar days after the end of the contract. The contract partner does not have to be informed separately.
    8. seminargo shall provide the contractual partner with read access without write access to the backend for a period of 6 months after the end of the contract term. Thereafter, seminargo has the right to terminate access.
  4. Backend
    1. seminargo provides the customer with the backend for the operation of SEM for retrieval via the Internet within the scope of the agreed availability on servers.
    2. The temporary provision of the backend includes the maintenance of the usability of SEM, but not its further development. The maintenance obligation therefore does not include the adaptation of the software to the functional scope of competing products or the creation of compatibility with new data formats.
  5. Availability
    1. seminargo provides the customer with SEM and the backend for use with an annual average availability of 98%. This does not include times during which the use of SEM and the backend is interrupted or impaired for compelling technical reasons or due to necessary maintenance work for which seminargo is not responsible.
    2. The obligations of seminargo do not include the customer’s access to the Internet or the operation of data lines or data networks as parts of the public Internet. seminargo therefore assumes no responsibility for the functionality of such data networks or such data lines to its servers with the exception of the data lines between its servers and the respective transfer point to the public Internet. seminargo also assumes no responsibility for power failures or for failures of networks or servers over which seminargo has no influence.
  6. Maintenance
    1. The maintenance window of seminargo is between 18:00 and 06:00 CET. seminargo will inform the customer in advance of the time and the exact duration of the work as well as the concrete extent of the impairment of use.
  7. Updates
    1. The customer’s entitlement to updates, i.e. the bundling of several defect rectifications and/or fault rectifications, is limited. seminargo shall determine the number of updates at its reasonable discretion.
    2. Not covered by the obligation under paragraph 1 are new versions that have an extended range of functions or other extended performance features, in particular upgrades and major updates.
  8. Property rights of seminargo
    1. The copyright, patent rights, trademark rights and all other industrial property rights to SEM and the backend as well as to other objects that seminargo provides or makes accessible to the customer in the context of the initiation and execution of the contract are the exclusive property of seminargo in the relationship between the contracting parties.
  9. Rights of use
    1. seminargo grants the customer the simple (non-sublicensable and non-transferable) right of use of SEM and the backend for retrieval via the Internet to the extent agreed in the individual contract and exclusively for the contractual purposes.
    2. The right of use is of a purely contractual nature and is limited to use. The right of use is not transferable and is limited to the term of the contract.
    3. The customer may only use the application for its own business activities by its own personnel. The customer is not entitled to make unauthorized changes to SEM.
    4. It is not permitted to reproduce, sell or transfer SEM for a limited period of time, in particular not to rent or lend it.
    5. There is no entitlement to surrender of the source code.
    6. If the customer violates the regulations for reasons for which he is responsible, seminargo can block the access of the contractual partner to SEM or the data after a prior warning to the contractual partner in text form, if the violation can be demonstrably remedied.
  10. Obligations of the contractual partner
    1. The customer shall fulfill all obligations necessary for the execution of the contract. In particular, he shall
      1. keep the usage and access authorizations assigned to him or the users as well as agreed identification and authentication safeguards secret, protect them from access by third parties and not pass them on to unauthorized users. This data must be protected by suitable and customary measures.
      2. inform seminargo immediately if there is any suspicion that the access data and/or passwords may have become known to unauthorized persons;
      3. create the agreed access conditions.
    2. The customer must comply with the restrictions/obligations with regard to the rights of use according to point IX, in particular
      1. not retrieve or cause to be retrieved any information or data without authorization or interfere or cause to be interfered with programs operated by seminargo or intrude into data networks of seminargo without authorization or promote such intrusion;
      2. not to misuse the exchange of electronic messages possible within the scope of the contractual relationship and/or using seminargo for the unsolicited sending of messages and information to third parties for advertising purposes;
      3. indemnify seminargo against claims by third parties that are based on an unlawful use of SEM by him or that arise from data protection, copyright or other legal disputes caused by the contractual partner that are associated with the use of SEM;
      4. oblige the authorized users to comply with the provisions of this agreement that apply to them;
      5. to design its Internet pages and the use of the system in such a way that an excessive load on the server caused by scripts or programs that require a high computing power or use an above-average amount of memory is avoided;
    3. ensure that it respects all third-party rights to the material it uses (e.g. when transferring third-party texts/data to the seminargo server or to the cloud hosting solution used);
    4. obtain the necessary consent of the respective data subject in accordance with point XI.2, insofar as it collects, processes or uses personal data when using SEM;
    5. check data and information for viruses before sending them to seminargo and use state-of-the-art virus protection programs;
    6. notify seminargo immediately of any defects in contractual services, in particular defects in the services. If the customer fails to notify seminargo in due time for reasons for which he is responsible, this shall constitute contributory causation or contributory negligence. Insofar as seminargo was unable to remedy the situation as a result of the omission or delay in notification, the customer is not entitled to reduce the individually determined monthly usage fee of the contract in whole or in part, to demand compensation for the damage caused by the defect or to terminate the contract extraordinarily due to the defect without observing a notice period. The customer must demonstrate that he is not responsible for the failure to report the defect;
  11. Data security, data protection
    1. The parties shall comply with the applicable, valid data protection regulations and obligate their employees used in connection with the contract and its execution in accordance with the GDPR, unless they are already generally obliged to do so.
    2. If the customer collects, processes or uses personal data, it warrants that it is authorized to do so in accordance with the applicable provisions, in particular data protection law, and shall indemnify seminargo against claims by third parties in the event of a breach. Insofar as the data to be processed is personal data, this constitutes commissioned data processing and seminargo will comply with the legal requirements of commissioned data processing and the instructions of the contractual partner (e.g. to comply with deletion and blocking obligations). The instructions must be communicated to seminargo in writing in good time.
    3. seminargo will only collect and use personal data to the extent required for the execution of this contract and the rectification of defects. The customer agrees to the collection and use of such data to this extent.
    4. The obligations according to 1 to 3 shall continue to exist as long as data is within the sphere of influence of seminargo, even after the end of the contract.
  12. Confidentiality / References
    1. The contracting parties agree that the data and information exchanged within the scope of the contractual relationship that are not otherwise publicly accessible, in particular statistics, are business and trade secrets, the disclosure of which to third parties is not permitted and may give rise to claims for damages under certain circumstances. This also applies beyond the term of the contract.
    2. seminargo is entitled but not obliged to make public reference to the cooperation with the contractual partner.
  13. Liability of seminargo
    1. seminargo is not a vicarious agent of the contractual partner or the third party.
    2. seminargo assumes no liability for damages incurred by the contract partner or third parties from the use of SEM and the services offered therein.
    3. seminargo assumes no liability for the breach of obligations resulting from the contractual relationship between the contracting party and third parties, regardless of its legal nature.
    4. seminargo’s pre-contractual, contractual and non-contractual liability is limited to intent and gross negligence. The limitation of liability also applies in the event of fault on the part of a vicarious agent of seminargo.
  14. Liability of the contractual partner
    1. The contracting party is aware that the fulfillment of seminargo’s obligations towards third parties depends to a large extent on how the contracting party fulfills its obligations towards seminargo. The contract partner therefore agrees to indemnify and hold seminargo harmless from and against all claims of third parties that are asserted against seminargo and are attributable to conduct in breach of duty on the part of the contract partner itself and/or the persons that the contract partner employs or employed to fulfill the obligations. Consequently, seminargo is also entitled to demand reimbursement from the contract partner for the necessary and appropriate costs incurred to defend against the claims – regardless of the legal grounds – raised; the same applies to the amount that seminargo paid or had to pay to the third party as a result of a justified claim. The same applies in the event that the third party reduced the payment to seminargo.
    2. The contract partner is liable for the correctness of the general data, in particular prices, as they were or should have been disclosed by the contract partner to seminargo or in SEM, regardless of fault. The contract partner is aware that this data is or may become the content of agreements concluded with third parties and indemnifies and holds seminargo harmless from any third-party claims that may be asserted against seminargo as a result of the inaccuracy of the data.
    3. seminargo treats the services (“seminar packages”) fully in the same way as the contract partner under VAT law. The contract partner hereby guarantees the correct handling of the services (“seminar packages”) under VAT law and shall indemnify and hold seminargo harmless against any claims by government agencies (authorities) and/or (other) third parties. This applies in particular to any additional payment obligations of seminargo resulting from incorrect VAT handling. The contract partner assures to support seminargo to the best of its knowledge and belief in proceedings against government agencies (authorities, in particular tax authorities) if circumstances arise or change in such a way that could give rise to an obligation to make subsequent payments.
    4. seminargo assumes no liability with regard to the legally compliant design of SEM. The customer must have the legal certainty checked by appropriate experts.
  15. Force majeure
    1. Neither party is obliged to fulfill the contractual obligations in the event of and for the duration of force majeure. In particular, the following circumstances are to be regarded as force majeure in this sense:
      1. Fire/explosion/flood for which the contracting party is not responsible,
      2. war, mutiny, blockade, embargo, pandemic
      3. labor dispute lasting more than 6 weeks and not culpably caused by the party,
      4. technical problems with the Internet that cannot be influenced by one of the parties
    2. Each contracting party must inform the other immediately in writing of the occurrence of a case of force majeure.
  16. Final provisions
    1. Should individual clauses in this contract be or become invalid, this shall not affect the validity of the remaining provisions. The invalid clause shall be replaced by a provision that comes closest to the economic purpose pursued by the invalid clause.
    2. This contract and its annexes contain all agreements. In addition, all previous verbal or written agreements lose their validity. There are no verbal collateral agreements. Amendments to the contract must be made in writing. This also applies to any deviation from the written form hereby agreed.
    3. seminargo reserves the right to amend these GTC at any time. Price changes are excluded from this general right of amendment. The customer will be notified accordingly. Changes are deemed to have been acknowledged and accepted by the contractual partner if he does not object to the changes within 30 days of becoming aware of them. seminargo will point out the validity of new GTC separately.
    4. The place of jurisdiction is, as far as legally permissible, the Commercial Court of Vienna.
    5. This contract is subject to Austrian law to the exclusion of its conflict of law rules and the UN Convention on Contracts for the International Sale of Goods (CISG).