General Terms and Conditions Elferspot Media GmbH for Advertisements:
1. Preamble
Date: 15.07.2024
1.1 Elferspot Media GmbH, Hauptstraße 6, 3rd floor, 4040 Linz, Austria, FN 512713s, is the operator (hereinafter referred to as “ADVERTISER”) of the “Elferspot” platform (hereinafter referred to as “PLATFORM”).
1.2 The PLATFORM serves to enable persons who wish to sell goods (hereinafter referred to as “SELLERS”) to place advertisements on the PLATFORM for a limited period of time. Persons who purchase goods from the SELLER or contact the SELLER are referred to as BUYERS.
1.3 This contract is based on the assumption that the CUSTOMER is a consumer within the meaning of § 1 Abs 1 Z 2 KSchG or an entrepreneur within the meaning of § 1 Abs 1 Z 1 KSchG.
1.4 For the purpose of better readability, no gender-specific differentiation is made. This is done without any intention to discriminate. All genders are addressed equally.
1.5 This contract governs the use of the PLATFORM for the purpose of advertising goods and services by the CUSTOMER in return for payment.
1.6 In addition to this contract, the CUSTOMER must comply with the terms of use for the use of the PLATFORM in a legally binding manner.
2. Conditions of use
2.1 The CUSTOMER is obliged to provide true and complete information in the course of the business relationship and to keep his data up to date at all times. He must treat his data confidentially (this applies in particular to any log-in data or passwords). If the CUSTOMER suspects misuse by third parties, he must inform the PROVIDER immediately.
2.2 The CUSTOMER shall refrain from all measures that could jeopardize or impair the technical provision of the PLATFORM by the PROVIDER (including cyber attacks).
2.3 The CUSTOMER shall take suitable precautions to protect the PLATFORM from unauthorized access by third parties by keeping the passwords for the log-in safe.
2.4 It is the CLIENT’s responsibility to create the necessary infrastructure for the operation of the PLATFORM. The PROVIDER shall have no further obligations to provide information or advice in this regard.
3. Offer and conclusion of contract
3.1 After entering the required data in the web mask provided for this purpose, the CUSTOMER places a binding order with the PROVIDER by clicking on the button “Advertise now with obligation to pay” (or similar). The CUSTOMER shall then immediately receive an order confirmation.
3.2 Before finally submitting an advertisement, the CUSTOMER has the opportunity to check it again for any errors and correct them if necessary.
3.3 The contract with the PROVIDER is only concluded when the PROVIDER expressly accepts the advertisement (“order confirmation”) or when the advertisement is actually placed on the PLATFORM.
3.4 The duration of the advertisement and the fee to be paid are determined by the package selected by the CUSTOMER.
4. Payment modalities
4.1 The amount of the fee is determined by the offer of the PROVIDER. The prices quoted are in EUR. In case of doubt, VAT is not yet included.
4.2 The fee for the advertisement is to be paid in full in advance.
4.3 Claims of the PROVIDER shall become due upon invoicing and must be paid within 14 days without discount. In the event of default, default interest of 4% per annum shall be charged. If the CUSTOMER is an entrepreneur, the default interest is 9.2% per year above the current prime rate of the European Central Bank.
4.4 In the event of a delay in payment of more than 30 days, the PROVIDER shall be entitled to withhold its service to the CUSTOMER and to remove the advertisement.
4.5 The PROVIDER reserves the right to adjust the agreed fee to current inflation once a year. The Austrian consumer price index published on the website of Statistics Austria at the time the contract is concluded shall serve as the reference value.
5. Right of withdrawal according to FAGG
5.1 The right of withdrawal according to FAGG is exclusively available to consumers.
5.2 The CUSTOMER has the right to revoke his contractual declaration or an already concluded contract within fourteen days without giving reasons if the contract was concluded electronically. The withdrawal period is fourteen days from the date of conclusion of the contract.
5.2 In order to exercise the right of withdrawal, the CUSTOMER must inform the PROVIDER by means of a clear declaration (e.g. a letter sent by post or e-mail) of the decision to withdraw from this contract. The CUSTOMER may use the model withdrawal form for this purpose, which is listed in Annex I B of the Distance and Off-Premises Transactions Act (https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20008847) and can also be accessed on the PROVIDER’s website.
5.3 Revocation declarations must be sent to the following address:
Elferspot Media GmbH
Hauptstraße 6, 3rd floor, 4040 Linz, Austria
E-mail address: info@elferspot.com
5.4 In order to comply with the withdrawal period, it is sufficient for the CUSTOMER to send the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period. If use is made of this option, the CUSTOMER will be sent a confirmation of receipt of such a withdrawal. If the CUSTOMER revokes the contractual declaration or a contract that has already been concluded, the PROVIDER shall repay all payments that it has already received from the CUSTOMER, including any delivery costs, immediately and at the latest within fourteen days from the day on which the notification of revocation of this contract is received by the PROVIDER. For the repayment, the PROVIDER shall use the same means of payment that the CUSTOMER used for the original transaction.
5.5 If the CUSTOMER has requested that the execution of digital content be commenced before the expiry of the withdrawal period and subsequently withdraws within the withdrawal period (14 days from the conclusion of the contract), he shall pay the PROVIDER a reasonable amount corresponding to the proportion of the service already provided up to the time at which the CUSTOMER informs the PROVIDER of the exercise of the right of withdrawal with regard to this contract compared to the total scope of the service provided for in the contract. It is pointed out that the major part of the service (checking the advertisement; placing the advertisement) will be provided by the PROVIDER immediately after conclusion of the contract (within three days).
6. Support
6.1 Unless expressly agreed otherwise, no support services are owed.
7. Duty to cooperate
7.1 The CUSTOMER shall be obliged to cooperate to the extent necessary for the use of the PLATFORM. The PROVIDER cannot suffer any disadvantages from a failure to comply with these obligations to cooperate.
8. Liability for damages and warranty
8.1 The PROVIDER’s liability for damages caused by slight negligence is excluded. The amount of liability is limited to three times the amount of the remuneration paid to date, but in any case to usually foreseeable damages.
8.2 This limitation of liability shall not apply to personal injury or damage under the Product Liability Act.
8.3 The PROVIDER assumes no liability for loss of profit.
8.4 The PROVIDER has designed and prepared the PLATFORM to the best of its knowledge and belief. However, it expressly does not owe any success to the effect that a placement will actually be made.
9. Declaration of indemnity and hold harmless
9.1 In the event that the PROVIDER is held liable by a third party due to unlawful use of the PLATFORM by the CUSTOMER, the CUSTOMER shall be obliged to indemnify and hold the PROVIDER harmless.
10. Involvement of subcontractors
10.1 The PROVIDER may use subcontractors to fulfill its obligations under this contract.
10.2 The agreed limitations of liability also apply to subcontractors used by the PROVIDER.
11. Amendments to the contract
11.1 The PROVIDER is entitled to amend this contract at any time. The PROVIDER shall inform the CUSTOMER of such amendments by sending the amended contract to the contact details last provided to the PROVIDER. The CUSTOMER has the right to object to this amendment. If the CUSTOMER does not object within 21 days of this amendment being sent, implied consent to the amendment of the contract shall be assumed. The CUSTOMER’s legal position can expressly not be worsened by such implied consent. The PROVIDER shall inform the CUSTOMER of the legal consequences of a lack of objection.
12. Data protection
12.1 The disclosure of data and information to the respective required business partners is permitted to the extent necessary for the fulfillment of the contractual relationship, for the purpose of fulfilling legal and contractual obligations and on the basis of legitimate interests (Art 6 para 1 lit b, c and f GDPR).
12.2 The PROVIDER informs that the CUSTOMER’s data may be processed for advertising purposes on the basis of legitimate interests (Art. 6 para. 1 lit. f GDPR). The CUSTOMER may object to the processing of personal data for advertising purposes at any time (Art 21 (2) GDPR).
13. Duration of the contractual relationship
13.1 The duration of the contractual relationship depends on the model chosen by the CUSTOMER.
13.2 In the case of time-limited models, ordinary termination is excluded for the agreed minimum duration.
13.3 The right to extraordinary termination remains unaffected.
14. Blocking of access to the PLATFORM
14.1 If the PROVIDER has reasonable grounds to believe that the CUSTOMER is using the PLATFORM in an unlawful manner, the PROVIDER shall be entitled to block access to the PLATFORM immediately and without prior notice. The possibility of further legal remedies remains unaffected.
15. Place of jurisdiction and applicable law
15.1 This contractual relationship shall be governed by and construed in accordance with Austrian law. However, this choice of law must not result in the consumer being deprived of the protection afforded to him by the mandatory rules of his country of residence (cf. Art 6 (2) Rome I Regulation). The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and of conflict-of-law rules is excluded.
15.2 The exclusive place of jurisdiction is the competent court in Linz, Austria.
15.3 If the CUSTOMER is a consumer and has his domicile or habitual residence in Austria or is employed in Austria, the CUSTOMER may only be sued before those courts in whose district his domicile, habitual residence or place of employment is located.
15.4 In the case of online transactions, the possibility of dispute resolution by means of an online dispute resolution platform
(Art 14 Para. 1 S 1 ODR-VO) (https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home2.show&lng=DE) and national consumer arbitration boards, provided that the CUSTOMER is a consumer. The PROVIDER is prepared to participate in such arbitration proceedings.
15.5 The place of performance is the registered office of the PROVIDER.
