GENERAL CONDITIONS OF USE
1.Scope of application
1.1.These General Conditions of Use (for the ESTABLISHMENT OWNER including the arbitration and choice-of-law agreement in Paragraph 13) apply to all agreements made between WOGO GmbH, having its registered office at Koschatstraße 18, 9020 Klagenfurt am Wörthersee, Austria, and Klagenfurt District Court Commercial Registry number 363209g (hereinafter “WOGO”), (i) the users of WOGO’s websites (the-wogo.com, the-wogo.me, the-wogo.biz, the-wogo.at, the-wogo.de, the-wogo.ch, the-wogo.li, the-wogo.it, the-wogo.co.uk, the-wogo.pt, the-wogo.cz, the-wogo.fr, the-wogo.hr, the-wogo.hu, the-wogo.lu, the-wogo.se, the-wogo.nl, the-wogo.es) – hereinafter “WEBSITE“ (hereinafter “USER“) and (ii) the contracting parties of the SERVICE AGREEMENTS between WOGO and the ESTABLISHMENT OWNER.
1.2.The ESTABLISHMENT OWNER guarantees that they are a business owner in accordance with any applicable laws and regulations and that no founding procedures in terms of consumer transaction exist. Furthermore, the ESTABLISHMENT OWNER guarantees that within their own field of business, neither minors, consumers nor other unauthorized third parties will use the SERVICES.
1.3.The GCU are available in the German, Italian, Slovene and English languages. REGISTRATION and conclusion of a SERVICE AGREEMENT by the ESTABLISHMENT OWNER is also possible in these languages, whereby the ESTABLISHMENT OWNER guarantees that their business is located in Austria, Germany, Switzerland, Liechtenstein or Slovenia.
1.4.The version of the GCU in force at the time of conclusion of the agreement shall apply. The present GCU are valid as of 16 September 2013. Any amendment or annulment of the GCU is only valid and effective if made in writing and undersigned by WOGO management. Any terms or conditions or the like originating from the CLIENT or USER which diverge from the GCU are invalid, even where those stipulate (exclusive) separate validity.
1.5.WOGO is authorized to amend the GCU at any time and at its own discretion; such amendment of the GCU will become binding on the ESTABLISHMENT OWNER and / or USER upon agreeing to the amendment by checking the box next to the agreement text on the WEBSITE. Where a SERVICE is used, ordered or received before agreeing to the amended version of the GCU that SERVICE shall be rendered to the ESTABLISHMENT OWNER or USER in accordance with the most recently agreed upon version of the GCU.
2.1.Pronouns used in the GCU are to be understood as gender neutral.
2.2.The following terms used in the these GCU are defined as follows:
2.2.1.GCU refers to these General Conditions of Use which are accepted through a corresponding declaration by the ESTABLISHMENT OWNER or the USER during REGISTRATION.
2.2.2.DATE OF ACCEPTANCE refers to the date, on which WOGO legally accepts the ESTABLISHMENT OWNER’s PURCHASE ORDER.
2.2.3.PURCHASE ORDER is the ESTABLISHMENT OWNER’s binding declaration of intent (offer) to conclude a SERVICE AGREEMENT with WOGO.
2.2.4.CONTENT is data of all kinds, including but not limited to text, graphics, logos, photos and other images, video and audio files uploaded to the WEBSITE by the ESTABLISHMENT OWNER or USER, insofar as these do not originate from WOGO.
2.2.5ESTABLISHMENT OWNER refers to the person who, as a business owner, receives the respective SERVICE from WOGO on the basis of the SERVICE AGREEMENT with WOGO. ESTABLISHMENT refers to a restaurant, bar, café, pub or other business in the service industry.
2.2.6USER refers to the person who uses WOGO’s WEBSITE, particularly those who are registered on the WEBSITE.
2.2.7PARTIES refers severally or collectively to the ESTABLISHMENT OWNER, WOGO and / or the USER.
2.2.8REGISTRATION refers to the procedure of entering personal data by the USER or the ESTABLISHMENT OWNER on the WEBSITE and the sending thereof to WOGO.
2.2.9SERVICE refers to a virtual data service that comprises the services specified in the SERVICE AGREEMENT between the ESTABLISHMENT OWNER and WOGO. SERVICES includes exclusively those services which are rendered by WOGO through the WEBSITE, namely “Free“, “Silver“ and “Premium“ services (for details see WEBSITE, specifically http://www.the-wogo.at/de/products).
2.2.10SERVICE COMPENSATION refers to a credit note issued by WOGO to the ESTABLISHMENT OWNER in the event that WOGO fails to render a SERVICE as contractually agreed upon or if the availability of the agreed upon limit of services cannot be ensured.
2.2.11SERVICE AGREEMENT refers to all agreements between the ESTABLISHMENT OWNER and WOGO, under the terms of which WOGO renders and the ESTABLISHMENT OWNER receives the SERVICE and of which the GCU are an integral part. The subject of the SERVICE AGREEMENT is the respective agreed upon SERVICE. (Additional) Services that are not included in the description of the SERVICE are not included in the SERVICE AGREEMENT.
2.2.12WEBSITE refers severally and collectively to all web content which is available at WOGO’s domains (see Paragraph 1.1.).
2.2.13WOGO refers to WOGO GmbH (see details in paragraph 3).
2.2.14LOGIN DATA refers to all identification details and passwords that the ESTABLISHMENT OWNER or the USER provides in order to gain access to the SERVICE or the WEBSITE or any parts thereof.
3.About WOGO and contact information for complaints
3.1.WOGO GmbH having its registered office at Koschatstraße 18, 9020 Klagenfurt am Wörthersee, Austria and Klagenfurt District Court Commercial registry number 363209g, VAT Nr.: ATU 66446456, Fax +43 1 2533033-3336, e-mail address email@example.com, is a member of the Carinthian Chamber of Commerce and active in the field of software development, marketing of internet platforms and is subject to relevant commercial regulations, in particular those applicable to services in the field of automatic data processing (§ 5 para 2 commercial regulations (Gewo) 1994), which can be accessed here [Link].
3.2.Complaints about WOGO services can be filed in written form or by telephone at the aforementioned contact address or number.
4.REGISTRATION and LOGIN DATA
4.1.To begin with, the USER and the ESTABLISHMENT OWNER must register on the WEBSITE. REGISTRATION, which is possible in the languages mentioned in paragraph 1.3, requires of the USER (i) an e-mail address, (ii) LOGIN DATA and (iii) acceptance of these GCU, available to be saved to disk or printed, and requires of the ESTABLISHMENT OWNER points (i) to (iii), including the arbitration and choice-of-law agreement and (iv) entry of the client’s details including (v) authentication of the ESTABLISHMENT OWNER by sending a photo identification. After steps (i) to (iv) of the REGISTRATION, the ESTABLISHMENT OWNER can enter CONTENT for his establishment; publication of this data follows completion of the corresponding SERVICE AGREEMENT.
4.2.An ORDER by the ESTABLISHMENT OWNER presupposes his REGISTRATION. During placement of an ORDER the data entered is displayed once again on the confirmation page and can be corrected there before the ORDER is confirmed. The ESTABLISHMENT OWNER places the ORDER for a SERVICE AGREEMENT by clicking on „BINDING ORDER“. The ORDER placed by the ESTABLISHMENT OWNER is valid for seven calendar days and can be declined without reason by email or in another according manner by WOGO. The client’s details and the (current) order or SERVICE status can be viewed, locally copied or printed by the ESTABLISHMENT OWNER after logging in with their respective LOGIN DATA.
4.3.The USER or ESTABLISHMENT OWNER will immediately receive an automatically generated email from WOGO confirming the receipt of their REGISTRATION or ORDER on WOGO’s server. These GCU are also attached to the automatically generated email.
4.4.LOGIN DATA can be only be used exclusively and personally by the USER and by the ESTABLISHMENT OWNER and exclusively within the scope of the SERVICE AGREEMENT. The LOGIN DATA can be changed on the WEBSITE by the ESTABLISHMENT OWNER or USER at any time. WOGO is authorized, for security and / or administration reasons, to change the LOGIN DATA and send the ESTABLISHMENT OWNER or USER the new LOGIN DATA per email. Except for in the case of a risk of default, WOGO shall – through corresponding prompt actions – assure that a discontinuation of use of service due to the lack of current LOGIN DATA is avoided as far as possible.
4.5.The ESTABLISHMENT OWNER or USER is obliged to non-disclosure of LOGIN DATA. The ESTABLISHMENT OWNER or USER is obliged to safeguard his connection, computer and LOGIN DATA from unauthorized access. The ESTABLISHMENT OWNER or USER is obliged to immediately report to WOGO any suspicion that a third party could have accessed his LOGIN DATA or other secretive information in connection with any SERVICE. Regardless of negligence or fault, the ESTABLISHMENT OWNER is responsible for any abuse of contact data and / or LOGIN DATA, specifically regarding payment claims. The ESTABLISHMENT OWNER acknowledges that WOGO is authorized to immediately cancel any or all SERVICE(s) upon discovering any use contrary to the agreement – even if blameless – and to extraordinarily cancel the SERVICE AGREEMENT. WOGO will endeavor not to cancel the SERVICE or access thereof until after the ESTABLISHMENT OWNER has been requested via email to stop or impede such abuse within a reasonable period of time; in which case WOGO will do its best to make the consequences of such a cancelation clear.
4.6.Client information is to be kept up to date by the ESTABLISHMENT OWNER at all times, specifically in order to enable WOGO to contact the client by email as part of the SERVICE AGREEMENT.
5. Usability, CONTENT and rights thereto
5.1.WOGO will not be held responsible for whether the SERVICE or the WEBSITE is compatible with the ESTABLISHMENT OWNER’s or USER’s hardware or software. Acquisition of minimum hardware, software or communication services including transmission services from or to the point of transfer of services (in this case WOGO’s network termination point) is not covered in the SERVICE AGREEMENT, but is the sole responsibility of the ESTABLISHMENT OWNER or the USER.
5.2.The ESTABLISHMENT OWNER or the USER is solely responsible for the legality of CONTENT he makes available. WOGO is not obliged in any way to due diligence, protection or warning in connection with legal use, as regards any CONTENT used. WOGO is by no means obliged to verify the legality of CONTENT saved on its IT infrastructure by the ESTABLISHMENT OWNER or USER.
5.3.The ESTABLISHMENT OWNER or USER guarantees,
5.3.1that CONTENT does not violate any applicable laws, including but not limited to intellectual property, fair trading and personal rights of third parties;
5.3.2to refrain from any obscene, harassing or unethical behavior on or in connection with the WEBSITE;
5.3.3to fulfill his responsibilities to uphold privacy and data protection;
5.3.4not to abuse the exchange of electronic messages for the purpose of sending unauthorized messages for advertisement or mass mail (spam);
5.3.5to refrain from the attempt to use unauthorized data including through non-authorized third parties or
5.3.6for this purpose to gain access to or infiltrate any system or program run by WOGO, abusively intercept data, take part in any fraudulent data processing abuse or to cause any of the aforementioned – attention is drawn to criminal consequences;
5.3.7to take no actions that could unreasonably burden or even do damage to WOGO‘s system or data to which the ESTABLISHMENT OWNER or USER has no permission or exclusive permission to access, and particularly save no viruses, trojans, worms or other malware in WOGO’s system that could damage, impair, the system or secretly intercept or destroy data, attention is drawn to the criminal consequences;
5.3.8to not copy, reproduce, change, rearrange or create any derived adaptations of contents of the WEBSITE.
5.4.WOGO is authorized to block access to the ESTABLISHMENT OWNER or USER or any third parties attributable to the aforementioned violations of the agreement. Access will not be restored until the violation has been permanently removed or the danger of repetition has been eliminated and a cease-and-desist declaration submitted.
5.5.The ESTABLISHMENT OWNER or the USER grants WOGO non-exclusive, free and unrestrictive rights to use of CONTENT (incl. backup copies, technical virtualization and for the purpose of advertisement to third parties). The ESTABLISHMENT OWNER or USER certifies that he is the holder of the appropriate rights to CONTENT and holds WOGO free from any liability regardless of negligence or fault.
6.1.The SERVICE can be ordered by the ESTABLISHMENT OWNER on the WEBSITE and in compliance with the conditions and description on the WEBSITE and becomes the subject of the SERVICE AGREEMENT upon acceptance by WOGO.
6.2.WOGO is entitled to all (intellectual property) rights to the SERVICE and no further rights (of use) are granted to the ESTABLISHMENT OWNER or USER in connection with or on the WEBSITE. The ESTABLISHMENT OWNER or USER is therefore not granted the right – even with respect to individual elements – to (i) re-license, rent, lease, make available online or via networks to third parties without authority as a timeshare or to operate the SERVICE as a service bureau or offer subscription services for the SERVICE; (ii) to transfer the SERVICE AGREEMENT to a third person without written permission from WOGO.
6.3.The SERVICE will be carried out by WOGO in accordance with and to the full extent of the SERVICE AGREEMENT. WOGO will deliver the SERVICE in accordance with the general rules of the technology and in compliance with the SERVICE AGREEMENT. WOGO guarantees 98% availability of the WEBSITE or SERVICE per calendar month. The following conditions are disregarded during calculation of availability of the WEBSITE or SERVICE and no rights can be derived from service disruptions as a result thereof: (i) on the WEBSITE – maintenance or service periods that are announced at least three calendar days in advance; any system, software, network or hardware failure outside of WOGO’s sphere of control or caused by force majeure; failures or errors that are caused by the ESTABLISHMENT OWNER or USER or any third parties attributable to such failures or errors caused by incompatible devices being used or incorrect usage of the SERVICE that prevents technical requirements or conditions of service from being met or fulfilled.
6.4.The ESTABLISHMENT OWNER certifies that he has carefully and completely revised the content of the SERVICE before ordering it and is aware that he has to take particular care under certain circumstances to be able to use the SERVICE accordingly (e.g. to maintain the CONTENTS, photos, etc.).
6.5.The SERVICE can be subject to technical or other changes by WOGO. The ESTABLISHMENT OWNER consents to minor changes in the SERVICE (updates) being carried out by WOGO without affecting the core function of the service, whereby, WOGO will do its best to inform the ESTABLISHMENT OWNER in due time. Furthermore, the ESTABLISHMENT OWNER consents that the SERVICE can be changed by upgrades in important functions as well as in the entire scope of the SERVICE, whereby WOGO must inform the ESTABLISHMENT OWNER of these changes within 14 calendar days in advance and the ESTABLISHMENT OWNER has an extraordinary termination right in regards to the respective SERVICE, up to the date the changes are carried out and if the changes carried out as part of the upgrade are unreasonable to him. In this case the ESTABLISHMENT OWNER waives any right to compensation or any other demands.
7.Payment by the ESTABLISHMENT OWNER and payment conditions
7.1.All prices listed on the WEBSITE are final prices and include the Austrian value added tax (20 %). As payment for the rendering of SERVICES the ESTABLISHMENT OWNER is obliged to payment of the fee according to the SERVICE AGREEMENT. During the ordering process, the CLIENT will be fully informed of the total fee and the payment methods and also given the option to choose one payment method. In the case of changes in the SERVICE that lead to changes in the fee – if not otherwise agreed upon – a proportional fee will be charged for the respective service period. The SERVICE can only be paid with a credit card, PayPal or prepayment from a bank located within the EEA. As a rule all payments are due in advance before the respective period of service begins. In the case of default the §§ 455 ff UGB (Austrian Corporate Code), regardless of negligence or fault.
7.2.All agreed upon fees are subject to an annually carried out value adjustment by WOGO in accordance with the Consumer Price Index 2010 (CPI), published monthly by the Austrian Office for Statistics. The basis for calculation is the respective published index number for the month of completion of the SERVICE AGREEMENT. The fee is adjusted to the extent to which the CPI has changed from the basis month up to the month of adjustment. In the case that the index number should not be published yet at the time of the value adjustment, the most recently published index number will be used and any difference from the applicable index number will be charged subsequently. The index number used for calculation is the basis for calculation for the subsequent annual value adjustment. Should the CPI not be published, the index number following the CPI or which is most equivalent will be used as a basis for the value adjustment. If no index calculation can be made available the adjusted fee is to be calculated according to analog principles as they were last determined for the index calculation. A price adjustment carried out by WOGO is also permissible when other external factors or costs that WOGO has no influence over (e.g. increase or introduction of federal fees), should increase during the period of agreement; in this case the adjustment shall be carried out in the same proportion as the increase in the respective external factor.
7.3.The PARTIES are solely authorized to set-off against expressly approved and legally binding claims. The ESTABLISHMENT OWNER has no right to retention in any case.
7.4.WOGO is obliged to invoice the ESTABLISHMENT OWNER appropriately for SERVICES, whereby the ESTABLISHMENT OWNER consents that the invoice will be issued and sent in digital form.
8.Interruption of service and compensation
8.1.The information made available on the WEBSITE originates from the respective ESTABLISHMENT OWNER or USER and WOGO cannot guarantee in any way that all information is complete and without errors at all times. This applies as well to all links to external websites that are directly or indirectly referenced. All information can be changed, supplemented or removed without previous notice.
8.2.WOGO cannot be held responsible for ensuring that the WEBSITE or the SERVICE remains fully functional and without error and meets state of the art computer technology standards. Therefore, with respect to the SERVICE, WOGO provides no warranty, guarantee or assumption of risk, and more specifically not with regards to suitability of the SERVICE for specific purposes; the SERVICE is described on the WEBSITE or on the CONTROL PANEL and the ESTABLISHMENT OWNER can assume no rights derived from other details. As a matter of form, it should be noted that WOGO assumes no responsibility for the conditions of the ESTABLISHMENT OWNER’S or USER’S infrastructure, more specifically his hardware, software or internet connection from or to the terminal network point.
8.3.In the case that errors of any sort should occur in connection with the SERVICE, the ESTABLISHMENT OWNER will immediately report the error on the telephone support line to WOGO with a complete description of the error. If the ESTABLISHMENT OWNER fails to report an error, he waives the right to any claims unless the ESTABLISHMENT OWNER can prove that WOGO caused or kept the error secret through gross negligence. The existence of interruptions of service or errors must always be proven by the ESTABLISHMENT OWNER, more specifically § 924 of the Austrian General Civil Code is excluded through mutual agreement (and more specifically in light of the last sentence).
8.4. Any service interruption results exclusively in a claim to SERVICE COMPENSATION for the ESTABLISHMENT OWNER and to the amount of a proportionate period of time. Through this compensation any claims on the side of the ESTABLISHMENT OWNER due to service interruption are completely satisfied, insofar as WOGO is not guilty of gross negligence, which must be proven by the ESTABLISHMENT OWNER. The sum of the SERVICE COMPENSATION per contractual year is limited to a maximum value of 30% of the yearly net total fee paid by the ESTABLISHMENT OWNER. Any additional reduction in compensation or other claims resulting from a warranty or from other service interruption regulations / or compensation for damages are excluded. The SERVICE COMPENSATION will be taken into consideration by WOGO in the next invoicing period for SERVICES.
8.5.In accordance with legal regulations, WOGO is exclusively liable for damages caused by WOGO or its agents through willful or gross negligence, whereby the ESTABLISHMENT OWNER or USER carries the burden of proof regarding WOGO’s guilt. This limitation does not apply to WOGO’s liability under the product liability law for damages arising from injury to life, personal injury or health or for infringements of trademark rights and for which WOGO and its agents must be held responsible. WOGO’s liability in regards to damages not specified by the agreement, damages caused by defects, more specifically loss of profit or savings or pure pecuniary losses – unless otherwise intentional – is excluded. Unless in the case of intent by WOGO, all claims by the ESTABLISHMENT OWNER for any events are excluded, as long as and the ESTABLISHMENT OWNER or the USER receives the SERVICE free of charge. All claims on behalf of the ESTABLISHMENT OWNER or the USER lapse within six months from the point of awareness of damages or the damaging party.
8.6.Insofar as WOGO does not explicitly assume the task of data backup within the scope of the SERVICE, the ESTABLISHMENT OWNER is responsible herefor and WOGO assumes no liability for data loss – except in the case of extremely gross negligence. Under application of the aforementioned rule, WOGO otherwise assumes liability exclusively for any necessary expenses for the least expensive possibility to recover data. In any case, the ESTABLISHMENT OWNER bears the burden of proof and comprehensive mitigation obligation.
8.7.The ESTABLISHMENT OWNER or the USER is liable for all damages in accordance with legal regulation, unless otherwise explicitly agreed upon.
9.Responsibility for claims of third parties
9.1.If third parties make claims that hinder or impede the ESTABLISHMENT OWNER in the use of the SERVICE according to agreement, the ESTABLISHMENT OWNER is obliged to immediately and fully inform WOGO thereof. Should court proceedings by a third party be brought against the ESTABLISHMENT OWNER or USER for use of the SERVICE in accordance with the agreement, he is obliged during this time to coordinate with WOGO in regards to all steps of the process and to only take legal action, more specifically concession or settlements, after approval from WOGO. In connection with violations of intellectual property rights of third parties, WOGO is obliged to hold the ESTABLISHMENT OWNER free from any liability regardless of negligence or fault, insofar as the claims are not based on actions that are violations of the agreement on behalf of the ESTABLISHMENT OWNER; as regards the latter, the ESTABLISHMENT OWNER is obliged to hold WOGO free from any liability regardless of negligence or fault. The ESTABLISHMENT OWNER or the USER is required to support WOGO in any case and with all means possible, more specifically by sharing corresponding information and declarations with WOGO.
9.2.For this purpose WOGO is authorized at any time to alter the service so that there is no more risk of violation. Should a change in the SERVICE be impossible, the ESTABLISHMENT OWNER or USER is obliged to immediately end all use of the SERVICE in question upon demand by WOGO or WOGO is authorized to block access to the SERVICE, whereby no fees incur from the point of time that use of SERVICE is blocked. The liability limits of this GCU are applicable.
9.3.The ESTABLISHMENT OWNER or the USER holds WOGO free from any liability in connection with all damages caused by any violation of any third party‘s rights by the ESTABLISHMENT OWNER or USER regardless of negligence or fault, more specifically intellectual property, fair trading and personal rights of third parties including but not limited to necessary and reasonable representation costs incurred to WOGO.
10.Validity of the SERVICE AGREEMENT
10.1.The validity of the SERVICE AGREEMENT begins with the DATE OF ACCEPTANCE and continues for an unspecified period of time, until the SERVICE AGREEMENT is terminated: Each PARTY is authorized, to terminate the SERVICE AGREEMENT with a termination period of 30 calendar days.
10.2.WOGO is authorized to immediately cancel the SERVICE AGREEMENT or immediately cease or block access to the SERVICE for considerable reasons, more specifically if
10.2.1WOGO is demanded by the authorities to cease the SERVICE;
10.2.2 the ESTABLISHMENT OWNER has entered false login data or access to the SERVICE was ended for other reasons;
10.2.3the LOGIN DATA was given to third parties without permission and / or the SERVICE was used in violation of the agreement;
10.2.4the ESTABLISHMENT OWNER has not met his payment requirements (e.g. expiration or / cancellation of the credit card or revocation of the standing order for direct debit) and he does not make payments regardless of email warnings within a period of at least seven calendar days;
10.2.5 the ESTABLISHMENT OWNER cannot meet significant requirement of the SERVICE AGREEMENT or within this GCU, and despite a demand to cease the behavior or condition in violation of the agreement does not meet this demand within a period of seven calendar days;
10.2.6 the use of a sub-provider is absolutely necessary in order to render the SERVICE and the ESTABLISHMENT OWNER doesn’t consent.
10.2.3The ESTABLISHMENT OWNER is authorized to immediately cancel the SERVICE AGREEMENT in regards to the respective SERVICE, if an upgrade would lead to unreasonable changes for the ESTABLISHMENT OWNER or a SERVICE violates the agreement and the required conditions are not provided by WOGO within fourteen calendar days.
10.2.4The PARTIES are authorized to immediately cancel the respective SERVICE if, due to force majeure, that SERVICE is not available within fourteen calendar days.
11.Results of cancellation
11.1.When the SERVICE AGREEMENT or the SERVICE is cancelled, WOGO blocks access to the SERVICE and all fees for the respective SERVICE, to a proportionate amount equal to the period of time elapsed, are immediately due.
11.2.WOGO will, (a) in response to a corresponding request from the ESTABLISHMENT OWNER or (b) in any case up to 14 days after ending the SERVICE, make all the CLIENT’s or USER’s CONTENT available to the CLIENT or USER for download in the format respective of the SERVICE – or in a format freely chosen by WOGO. After the end of a 14 day period, WOGO will permanently erase the CONTENT.
12.Data protection and statement of references
12.1.CONTENT and other data belonging to the ESTABLISHMENT OWNER or USER can contain personal references.
12.4.The ESTABLISHMENT OWNER is the contractor in regards to his CONTENT and with respect to the data protection act of 2000 (DSG 2000); WOGO becomes active as a data protection rights service provider for the ESTABLISHMENT OWNER. In this relationship, WOGO guarantees that all data use, including access to data or CONTENT and the use through an eventual sub-provider, is to be carried out within the EEA or in non-member states (that have been recognized by the EU commission) within the scope of data protection laws. The ESTABLISHMENT OWNER, as a contractor, holds WOGO, as a service provider in respect to the CONTENT and in respect to data protection responsibilities, free from any liability regardless of negligence or fault.
12.5.WOGO is obliged to use data and results of data processing exclusively within the scope of the SERVICE and to meet any requests by the ESTABLISHMENT OWNER or USER to give these back exclusively to the ESTABLISHMENT OWNER or USER or if requested by the ESTABLISHMENT OWNER or USER and within the scope of the SERVICE to send these data to them. WOGO will not use any remaining data for its own purposes or the purposes of third parties.
12.6.WOGO guarantees, that all persons involved with data processing have been obligated to confidentiality in accordance with § 15 of the data protection act 2000 before beginning any activity – and until the end of the respective activity. Each WOGO employee has been informed about their individual responsibilities in accordance with the data protection act 2000 and all inner-organizational data protection and data security regulations.
12.7.The ESTABLISHMENT OWNER takes into account that WOGO will only use a sub-provider to render the SERVICE – this includes associated companies – if the ESTABLISHMENT OWNER has consented. WOGO will come to an agreement with any possible sub-provider that their data protection obligations at least correspond to WOGO’s. If the use of a sub-provider is absolutely necessary in order to render the SERVICE, and if the ESTABLISHMENT OWNER chooses not to consent to its use, WOGO is given an extraordinary right to cancellation.
12.8.WOGO declares, in a legally binding sense, that sufficient security measures have been taken in accordance with the data protection act 2000 in order to hinder improper use of data and access of data by unauthorized third parties.
12.9.The ESTABLISHMENT OWNER declares his consent – rescindable at any time – that his name and address and area of operations, in some circumstances listing the respective SERVICE and period of time, can be named for marketing reasons as a model client of WOGO worldwide, in the internet or in print, and unlimited in terms of content and time.
13.Arbitration clause with the ESTABLISHMENT OWNER and final provisions
13.1.All disputes arising with the ESTABLISHMENT OWNER, out of or in connection with the SERVICE AGREEMENT including but not limited to the GCU or from breach, annulment or invalidity, will be tried with finality in accordance with the arbitration and mediation ordinance of the International Arbitration Court of the Austrian Chamber of Commerce in Vienna (Viennese Rules), by three arbitrators with their arbitration seat located in Vienna and chosen in accordance with these rules in a trial in the German language. The arbitrators must be jurists with experience in IT related cases and they are to reach an enforceable (clearly detailed) decision in a confidential court process at their reasonable discretion, whereby it must be announced that all costs and fees incurred to the winning party are to be paid for by the losing party. Any possible temporary legal protection by the court of law is not affected by this arbitration clause.
13.2.For the ESTABLISHMENT OWNER the following is valid: exclusively Austrian law, in combination with (a) national and European conflict-of-law rules and (b) UN trade law (CISG) are applicable to this SERVICE AGREEMENT and these GCU.
13.3.This SERVICE AGREEMENT is final; there are no additional agreements, more specifically no oral agreements. All declarations by the PARTIES must be made on the WEBSITE or in written form to become valid.
13.4.If any clauses within these GCU or the SERVICE AGREEMENT are legally invalid or contain gaps, the legal validity of the remaining clauses remains unaffected. In such a case, the PARTIES are obliged to come to an agreement on a legally valid clause that economically best resembles the originally intended clause in order to replace the original invalid clause.
13.5.The person placing the ORDER and accepting these GCU guarantees that he or she is making and can make a legally binding declaration for the ESTABLISHMENT OWNER.