1. scope of application / changes to the GTC
1.1 EDD Research GmbH, with its registered office in Salzburg, registered in the commercial register of the Salzburg Regional Court under FN 535049 m ("EDD Research"), offers services in connection with the implementation, analysis and evaluation of surveys. The business relationship between EDD Research and the client (the "client" and each client together with EDD Research the "contracting parties") is governed exclusively by these GTC, in each case in the version valid at the time of the conclusion of the contract.
1.2 These GTC are binding for all current and future business transactions with EDD Research, even if they are not expressly referred to repeatedly. EDD Research expressly rejects any deviating general terms and conditions of the client. Deviations from these GTC, supplementary agreements, or any conflicting terms and conditions of the client are only effective if EDD Research agrees to them in writing.
1.3 The provisions of these GTC may be amended by EDD Research at any time without stating reasons, whereby such amendments shall be announced at least 30 days before they come into force on the respective website or by sending the text of the contract by e-mail (to the e-mail address last notified by the Client). The changes shall be deemed accepted if the Client has been informed of the changes by EDD Research and does not object to them in writing by e-mail to email@example.com within 30 calendar days, beginning with the day following the announcement. In the event of a timely objection to the changes, the contract shall remain unchanged in accordance with the previously agreed GTC.
2 Conclusion of contract / subject matter of contract
2.1 The client receives a written offer from EDD Research (the "offer"), in which the concrete order is defined according to the type, scope and costs of the services of EDD Research. The offers of EDD Research are subject to change, unless they are expressly designated as binding. The contractual relationship between the contracting parties (the "order") only comes into effect with the confirmation of the order by EDD Research. Subsequent changes to an order require written confirmation by EDD Research.
2.2 The scope of the services to be provided by EDD Research results from the specifications in the order. Within the given framework, EDD Research has the freedom to design the fulfilment of the order.
2.3 EDD Research is entitled, at its own discretion, to engage qualified third parties as subcontractors for the execution of an order. EDD Research shall be liable to the Client for the conduct of subcontractors commissioned by EDD Research as for its own. Insofar as the commissioning of third parties is necessary at the request of the Client, this shall be carried out in the name and for the account of the Client and such third parties shall not be vicarious agents of EDD Research.
2.4 Unless expressly agreed as binding, stated performance deadlines are only approximate and non-binding. Binding agreements on deadlines are to be recorded in writing and confirmed in writing by EDD Research.
2.5 If EDD Research is in default with the fulfilment of an order, the Client may withdraw from the order after having set EDD Research a reasonable grace period of at least 14 days in writing and this period has expired fruitlessly.
2.6 Force majeure, labour disputes, natural disasters, pandemics and epidemics, in particular due to COVID-19, as well as other circumstances beyond the control of EDD Research or reasons for which EDD Research is not responsible and which delay the fulfilment of an order, shall in no case be the responsibility of EDD Research and in such cases EDD Research shall be entitled to re-determine the performance period originally agreed in the order.
3. obligations of the customer to cooperate
3.1 The Client undertakes to make available to EDD Research, in a timely and complete manner, all information and documents required for the fulfilment of the order. The Client shall inform EDD Research in a timely manner and on an ongoing basis of all circumstances that are of importance for the execution of the order. If, due to incorrect, incomplete or omitted information, the order is not fulfilled or there is a delay, the client shall bear the costs arising from this and shall compensate EDD Research for any financial loss incurred as a result. If the client does not fulfil his obligations to cooperate on time or as agreed, binding agreements on deadlines lose their validity. Taking into account the availability of EDD Research, the contracting parties are obliged in such a case to agree on new appointments.
3.2 It is the responsibility of the client to check the accuracy of the information provided for the execution of the order and to check the documents provided for any copyrights and trademark rights or other rights of third parties. EDD Research is not obliged to check in this respect. If claims are made against EDD Research due to such an infringement of rights, the client shall indemnify and hold EDD Research harmless.
4. term / termination of the order
4.1 The services of EDD Research shall be provided for the term agreed in the order. If a term has not been agreed, the services shall be provided for an indefinite period and both contracting parties shall waive their ordinary right of termination for a period of 3 months. After expiry of the waiver of termination, both contracting parties shall each be entitled to terminate the contract in writing at any time with a notice period of 4 weeks. In all other cases, the ordinary termination rights of the contracting parties are excluded.
4.2 EDD Research is entitled to withdraw from an order with immediate effect (without observing a deadline) if there is an important reason. Such an important reason exists in particular, but not exclusively, if
- the execution of an order becomes impossible for reasons for which the client is responsible, or is further delayed despite a written warning and the setting of a grace period of 14 days;
- there are justified concerns about the creditworthiness of the customer, over whom insolvency proceedings have not been opened, and the customer is not prepared to make advance payments or provide suitable security when requested to do so by EDD Research; or
- bankruptcy or insolvency proceedings are instituted against the assets of the customer or an application for the institution of such proceedings is rejected for lack of assets to cover costs and this was not yet known to EDD Research at the beginning of the contract; if such a circumstance exists, the customer must inform EDD Research of this without being asked before the conclusion of the contract.
4.3 In the case of a justified withdrawal from the contract, EDD Research retains the claim to the entire agreed fee. This also applies in the case of unjustified withdrawal by the customer.
4.4 The client is entitled to withdraw from an order for good cause. Such an important reason exists, in particular, if the maintenance of the contract is no longer reasonable for him, because EDD Research continues to violate essential provisions of an order, despite written warning and setting of a grace period of at least 14 days for redress.
4.5 The services already rendered and costs already incurred by EDD Research up to this point in time are to be paid in full by the client even in the case of his justified withdrawal.
5. remuneration / terms of payment
5.1 The remuneration shall be based on the prices agreed in the order. All prices are exclusive of statutory value-added tax and all other taxes and public levies that may be incurred. All services provided by EDD Research within the scope of an order, which are not expressly covered by the agreed fee, shall be remunerated separately. All cash outlays, expenses, travel costs, etc. incurred in the course of the fulfilment of the order are to be reimbursed to EDD Research by the client against presentation of an invoice.
5.2 EDD Research reserves the right to demand a deposit of up to 50% of the total order value in advance after order confirmation, whereby the implementation of the order will only be started after receipt of this deposit. After completion of the order, the remaining part of the total order value is to be paid.
5.3 In the absence of a deviating written agreement, the fee is due for payment within 7 calendar days after receipt of the invoice and without deduction. In case of default of payment, EDD Research is entitled to withhold the services from the order in whole or in part.
5.4 The customer is not entitled to offset claims of EDD Research with counterclaims, unless such counterclaims have been determined by a court or acknowledged by EDD Research in writing.
6. default of payment by the customer
6.1 In the event of a delay in payment by the Client, EDD Research is entitled to charge interest on arrears from the respective due date in the amount of 9.2% p.a. above the base interest rate most recently announced by the European Central Bank.
6.2 In case of default of payment by the client, EDD Research is entitled to call due all services and partial services already rendered to the client. Furthermore, EDD Research is no longer obliged to provide further services until the outstanding amount has been settled.
6.3 Furthermore, in case of default of payment, the customer undertakes to reimburse EDD Research for the reminder and collection expenses, insofar as they are necessary for the appropriate legal prosecution. The assertion of further rights and claims remains unaffected.
7. copyrights and rights of use
7.1 All rights in connection with the works created by EDD Research within the scope of an order (the "Order Work") shall remain with EDD Research. The Client acknowledges that the sole copyright and all proprietary rights, in particular to methods, processes and procedural techniques, analyses, research concepts, proposals, graphical and tabular representations, and to other know-how of EDD Research, belong exclusively to EDD Research.
7.2 EDD Research is the sole owner of the material accrued during the execution of the order, in particular any data carriers and written documents, as well as the accrued data.
7.3 EDD Research grants the Client an irrevocable, non-exclusive, non-transferable right of use to the respective commissioned work for the agreed purpose and scope of use. If no agreements have been made on the specific purpose and scope of use of the commissioned work, the commissioned work is available to the client exclusively for internal use. Any other use and/or exploitation of the commissioned work requires the written consent of EDD Research in return for payment.
7.4 The customer shall only acquire the right of use in accordance with item 7.1 upon full payment of the total fee plus any ancillary costs.
7.5 The ownership of the commissioned work, including the content (photos, graphics, etc.) and branding elements (logos, claims, campaigns, etc.) created by EDD Research within the scope of an order, remains with EDD Research. Any modification, adaptation, imitation, quotation or publication of the commissioned work requires the written consent of EDD Research, which is valid in terms of payment.
7.6 The rights granted to the client may only be transferred to third parties or passed on as a sub-licence with the express prior written consent of EDD Research. EDD Research reserves the right to charge a separate fee for the granting of such consent.
7.7 The Client shall be liable to EDD Research for any unlawful use or exploitation of the commissioned work and shall indemnify and hold EDD Research harmless from any third party claims in this context.
8. naming / reference permission / data use
8.1 Pursuant to § 20 UrhG, EDD Research is entitled to affix its company name or logo to any commissioned work, as well as to any advertising material for it, or any publication about it. Form and duration of the labelling can be agreed upon in individual cases.
8.2 EDD Research is entitled to name the Client as a reference and to use all (protected or unprotected) trademarks, logos and marks of the Client in all media for its own advertising purposes.
8.3 Furthermore, EDD Research is entitled, in compliance with the provisions of data protection law, to use and publish the results of the commissioned works, surveys and analyses for its basic research, in particular in order to draw up industry comparisons. EDD Research will ensure that such publications do not name the client or contain any other references that could lead to conclusions about the client.
9.1 The client acknowledges that EDD Research merely supports the client in his decisions with its services. However, these decisions are not made by EDD Research, but by the Client. EDD Research does not recommend or endorse any specific solution approaches, strategies, decisions or interpretations of the delivered data or results in connection with the order. Furthermore, EDD Research excludes any implied or explicit recommendation of action. EDD Research is not liable for the fact that the data collected, evaluated and analysed by it can be commercially exploited by the client.
9.2 It is incumbent on the customer to give written notice of any defects in the service immediately after receipt of the commissioned work, at the latest within 7 days of recognising the same, describing the defect, otherwise the service shall be deemed to have been approved and accepted, whereby the assertion of warranty claims and claims for damages as well as the right to challenge error on the grounds of defects shall be excluded. The presumption provision of § 924 ABGB is excluded.
9.3 In case of a justified and timely notice of defects, the customer is primarily entitled to the right of improvement of the service. EDD Research will rectify the defects within a reasonable period of time, whereby the customer is obligated to enable all measures necessary for the examination and rectification of defects. If EDD Research culpably fails to improve within a reasonable grace period, the customer is entitled to a proportionate price reduction. Costs that arise from the use of third parties despite EDD Research's readiness to remedy the defect shall be borne by the customer.
9.4 EDD Research is entitled to refuse the improvement of the service, if this is impossible or associated with a disproportionately high effort for EDD Research. In this case, the customer is entitled to the legal rights of conversion or reduction.
9.5 All claims for defects on the part of the customer shall become statute-barred within six months of receipt or acceptance of the commissioned work.
9.6 If it turns out during the rectification of defects that the customer has no claim to improvement or new delivery, EDD Research is entitled to charge for the expenses incurred and the services in this respect on the basis of the prices agreed in the order according to time and material.
10 Liability / Conditions Subcontractors
10.1 To the extent permitted by law, EDD Research is exclusively liable, regardless of the legal grounds, for damages caused by EDD Research due to gross negligence or intent. The liability of EDD Research for slight negligence is, as far as legally permissible, excluded.
10.2 The liability of EDD Research is in any case limited to the amount of the respective order value.
10.3 EDD Research is not liable for any indirect damages, lost profit, loss of interest, missed savings, consequential and financial damages or damages from third party claims.
10.4 Likewise, no liability can be assumed for system failures, malfunctions, data losses and viruses, for example as a result of external attacks or for other reasons, unless such damages are caused by EDD Research intentionally or through gross negligence.
10.5 EDD Research does not vouch for the accuracy of content if it has been provided or approved by the Client.
10.6 Claims for damages by the client expire six months after knowledge of the damage and the damaging party, but no later than two years after the conduct of EDD Research giving rise to liability.
10.7 EDD Research will only assume promises of quality, assurances of characteristics and guarantees if they are expressly identified as such in writing.
10.9 The Client undertakes to fully indemnify and hold EDD Research harmless against claims from third parties.
10.10 The provisions of this point 10 apply to all claims for damages and other claims of the client, including pre-contractual and ancillary contractual claims, regardless of the respective legal ground. Furthermore, the provisions of this clause 10 also apply in favour of employees and other vicarious agents of EDD Research.
The Contracting Parties undertake to treat the business and trade secrets of the other Contracting Party as well as information designated as confidential as confidential, unless disclosure is required by law or by official orders. The Contracting Parties shall further ensure that confidential information is only disclosed to persons who are either subject to a professional duty of confidentiality or who, as employees, representatives, agents, consultants or bodies of the Contracting Party concerned, require the confidential information for reasons of the proper management of the Contracting Party concerned. The Contracting Party concerned shall oblige the recipients to keep the confidential information secret.
12 Applicable law / place of jurisdiction / place of performance
12.1 All disputes arising from or in connection with these GTC and all legal relationships between EDD Research and its customers shall be governed exclusively by Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods and the conflict-of-law rules of private international law.
12.2 For all disputes arising from or in connection with these GTC and all legal relationships between EDD Research and its customers, the contracting parties agree on the exclusive jurisdiction of the competent court in Salzburg.
12.3 The place of performance for deliveries and services of EDD Research is Hagenberg, Austria.
13. final provisions
13.1 Each contracting party shall bear its own taxes, duties or fees arising from the contractual relationship. Any legal transaction fees shall be borne by the customer.
13.2 EDD Research is entitled to transfer the contractual relationship to a third party at any time. The client waives any right of objection and already gives his consent to such a transfer or assignment of the rights and/or obligations arising from the contractual relationship.
13.3 Amendments, supplements and ancillary agreements to these GTC must be in writing to be effective. This shall also apply to any agreement to deviate from this formal requirement. In the event of contradictions between these GTC and deviating written agreements between the contracting parties, the provisions of the deviating agreements shall prevail.
13.4 Should individual provisions of these GTC be or become invalid, this shall not affect the remaining content of the GTC. The invalid provision shall be replaced by a valid provision that is legally valid and comes as close as possible to the economic intent of the contracting parties.
13.5 For the purposes of these GTC, a "third party" is any natural or legal person who is different from the contracting parties in the legal sense, even if legal and/or economic relations should exist with such a person.
Version - Status March 2021