General terms and conditions
Status: 01.11.2020 – valid for all contracts as of 01.11.2020
This is a translation of the German version. In case of differences between the German and English versions or in other cases of doubt, the German version shall apply.
These General Terms and Conditions (GTC) apply to all business relationships between the service recipient and TeamEcho GmbH and form the basis for offers, payments, legal acts, legal transactions and other services provided by TeamEcho GmbH. These GTC apply to all – including future – business relationships, even if they are no longer specifically referred to in individual cases. Any deviating terms and conditions of the service recipient shall not be binding on TeamEcho GmbH, even if TeamEcho GmbH does not object to them again upon conclusion of the contract, and shall only apply if and to the extent that TeamEcho GmbH has agreed to their validity in writing.
As far as the rights and obligations of the service recipient are concerned, the following provisions shall also apply to their partners and employees.
1. General and definitions
1.1. TeamEcho GmbH develops software solutions, in particular the SaaS solution with the product name TeamEcho (hereinafter “software”), and provides services and consulting services in this context.
1.2. The service recipients are entrepreneurs or companies or other entities that are not private individuals, who have concluded a contract with TeamEcho GmbH, either for a fee or free of charge, for the use of the software and enable the employees in their organization to conduct employee surveys and mood measurements via this online service.
2. Services and description of the service
2.1. TeamEcho GmbH develops and provides the service recipient with software as a service. Through regular anonymous surveys, TeamEcho continuously collects concrete aspects such as satisfaction among the employees of organizations and makes the results available to the service recipient. The object of the services provided by TeamEcho GmbH is, among other things, the granting of the possibility and authorization to access the software, which is hosted on servers, via the Internet and to use the functionality of the software in accordance with the respective contract concluded. This also includes all updates, improvements and changes to the portal and the software.
2.2. In addition to the software, TeamEcho GmbH also offers supplementary services and consulting. These include, among other things, consulting, service and support services. This also includes all e-mails, data or any correspondence sent by employees or agents in the course of providing services and consulting for TeamEcho GmbH.
2.3. The services mentioned in section 2.1 regarding the use of the software and the services and consulting services described in section 2.2 are hereinafter collectively referred to as “services”. The specific services provided by TeamEcho GmbH result exclusively from the respective offer.
2.4. Internet access or other prerequisites that are required technically, in terms of personnel or economically for the use of the software are not the subject of the services provided by TeamEcho GmbH. Thus, the service recipient is also responsible, in particular, for the Internet fees required and/or incurred during or for the use of the software and for the provision of the necessary devices and operating systems.
2.5. TeamEcho GmbH reserves the right to modify or improve services at any time. This may result in visual, technical, content-related or other changes. There is no entitlement to improvement or modification or to further functionalities; likewise, a change, modification or improvement does not give rise to any extraordinary right of termination if the contractual service essentially remains in place.
3. Conditions of use
The use of the TeamEcho GmbH service is only permitted to entrepreneurs or companies or other entities that are not private individuals, as well as their partners and employees within the scope of their activities for the service recipient.
4. Conclusion of contract
4.1. Offers merely represent a non-binding invitation to conclude a contract between TeamEcho GmbH and the service recipient. Offers are only made in writing, by e-mail or as part of an online booking.
4.2. Orders placed by the service recipient are binding for the service recipient upon receipt of the signed offer by TeamEcho GmbH (in writing or by e-mail) or by accepting the contractual terms and conditions and GTC within the scope of an online booking. TeamEcho GmbH can accept the order within a period of two weeks by (i) a written order confirmation or (ii) by commencing with the provision of the service, whereby the contract is concluded.
4.3. The contract with TeamEcho GmbH must be concluded by the service recipient for at least the basic version of the software. In order to integrate additional resources or persons into the service, the service recipient must extend the basic version with the required amount of additional products.
4.4. Unless otherwise agreed, the period of performance begins with the conclusion of the contract.
5. Remuneration and terms of payment
5.1. All prices quoted by TeamEcho GmbH are in euros and do not include value-added tax or any other statutory taxes and duties.
5.2. Prices are based on the initial quote unless otherwise stated.
5.2.1. The prices of the offer on which the contract is based are binding for 1 year from the start of the contract. Thereafter, an annual adjustment (ordinary price change) shall be made according to the Austrian “Consumer Price Index 2015” published by Statistics Austria (base year 2015) or an index replacing it.
5.2.2. TeamEcho GmbH asks for your understanding that price changes may occur (extraordinary price change). The service user will of course be informed of extraordinary price changes and these will only become effective with the subsequent invoicing. The service user takes note of this and is given the opportunity to terminate the contract before the extraordinary price change takes effect (according to point 6.2.).
5.3. Unless otherwise agreed, the fee for the software is due in full for the entire duration of the contract after the order has been placed. However, TeamEcho GmbH is entitled to issue partial invoices at its own discretion.
5.4. Unless special terms of payment have been agreed in individual cases, the invoice amount is due for payment without charges or deductions immediately upon receipt of the invoice, so that payment is received by irrevocable credit to the bank account of TeamEcho GmbH within 14 days.
5.5. In the event that payments have not been made or could not be made due to circumstances for which the service recipient is responsible, TeamEcho GmbH may charge the service recipient for all additional costs incurred (e.g. costs of the return debit note, expenses) in the amount incurred or demand compensation from the service recipient.
5.6. In the event of late payment, TeamEcho GmbH is entitled to demand interest on arrears in the amount of 9.2 percentage points above the respective base interest rate.
5.7. The service recipient is not entitled to assert rights of retention or other rights to refuse performance or to offset these with counterclaims, with the exception of claims expressly recognized in writing by TeamEcho GmbH or claims established by a final court judgment.
5.8. If the service recipient is in arrears with an agreed payment or other service, TeamEcho GmbH may, at its own discretion – without prejudice to other rights – (i) postpone the fulfillment of its own obligations until the outstanding payments or other services have been effected or (ii) withdraw from the contract if a reasonable grace period is not observed.
6. Duration and expiry of the contract
6.1. The term of the contract concerning the services is specified in the offer.
6.2. Expired commitments will be renewed for the same period of time, at the same conditions, upon expiration, unless a timely notice of expiration of the contract is given no later than 30 days prior to the end of the contract.
6.3. Notifications of expiration must be made via the corresponding area in the software account of the service recipient or must be sent to TeamEcho GmbH in writing or by e-mail.
6.4. The service recipient acknowledges that if the service recipient is in default of payment for more than 4 weeks, TeamEcho GmbH will switch the service to read-only access. The service recipient is granted a period of 14 days to settle the outstanding receivables. If the outstanding claims are not settled by the service recipient (received by TeamEcho GmbH) within this period, TeamEcho GmbH is permitted to discontinue the service with immediate effect and withdraw from the contract without further notice. The outstanding claims until the termination of the contract remain unaffected by this.
6.5. For good cause, the contractual relationship may be terminated by TeamEcho GmbH and the service recipient at any time in writing with immediate effect.
6.6. Good cause entitling TeamEcho GmbH to extraordinary termination exists in the event of infringement as defined in section 7.4. TeamEcho GmbH also has the right to immediate extraordinary termination if there are fundamental changes to legal or technical standards that make it unreasonable for TeamEcho GmbH to provide the services in whole or in part within the scope of the purpose of the contract.
6.7. In addition, TeamEcho GmbH has the right to assert claims for damages and to take other legal steps.
7. Obligations and liability of the service provider
7.1. The service user declares and guarantees that all information about his or her person and company is truthful and correct and will inform TeamEcho GmbH immediately of any changes to the data. In addition, the service user guarantees that the service will not be used in an unlawful manner, nor will legal regulations or other obligations of any kind be violated by its use.
7.2. The service recipient is responsible for all data that he or she communicates via TeamEcho and guarantees TeamEcho GmbH that all data protection regulations are adhered to and that the service is not used in an unlawful manner, nor are legal regulations or other obligations of any kind violated by its use. The service user has a duty to inform TeamEcho GmbH if changes/deletions of individual data are to be made for data protection or other legal reasons. The service user is obligated to truthfully provide the information that is required in the course of creating an account or making changes.
7.3. The service recipient undertakes to use the software only for the employee surveys and mood measurements intended in his company, so that the quality of the software is not impaired. The service recipient is prohibited from misusing the services of TeamEcho GmbH. Abusive use is deemed to exist in particular if
– in the course of using the service, the privacy or rights of others are violated and/or the use leads to or encourages illegal acts;
– names, descriptions or activities are used by the service recipient that could harm TeamEcho GmbH or other companies or persons as well as their property;
– the technical aids or the methods of the service provider impair or may impair the functionality of the software.
7.4. The service recipient indemnifies and holds harmless TeamEcho GmbH and all of its vicarious agents as well as other third parties to whom TeamEcho GmbH is liable on the basis of the contract with the service recipient or in connection with its execution, as well as with regard to all other damages that have arisen as a result of the illegal, improper or other use of TeamEcho GmbH’s services and the associated services that is in breach of duty. In particular, this also includes damages resulting from the incorrect provision of data and facts or from the violation of personal rights, copyrights, data protection laws or other standards by the service recipient.
7.5. TeamEcho GmbH is entitled to immediately delete content created by the service user that is illegal and/or abusive.
7.6. The service recipient undertakes to keep the access data secret. He shall also be liable for any unauthorized or improper use of the access data, insofar as he is responsible for such use.
7.7. TeamEcho GmbH recommends a regular backup of the data. The data can be requested by the service recipient as a backup copy upon request. In particular, the service recipient shall ensure that they back up the data prior to termination of the contractual relationship.
8. Rights of use
8.1. The software provided is a software-as-a-service solution that can be used by accessing a server. The software is not transferred to the service recipient. TeamEcho GmbH only grants the recipient a simple, non-sublicensable and non-transferable right to use the software for the duration of the contract.
8.2. If new versions, updates, upgrades or other changes are made to the Software during the term of the agreement, the foregoing rights shall also apply to them.
8.3. The recipient is not permitted to use the software or to have it used, distributed or sold beyond the scope of Section 8.1.
8.4. TeamEcho GmbH is the sole owner of the rights of distribution, reproduction and processing as well as all other copyrights relating to the website and the online software of TeamEcho GmbH and any individual patents it may contain. The use of the services or the content contained therein is permitted exclusively for the purposes stated in these Terms and Conditions.
9.1. TeamEcho GmbH makes every effort to provide the service 24 hours a day, 7 days a week, but cannot guarantee this.
9.2. TeamEcho GmbH guarantees an annual average availability of the service of 98%.
9.3. This also excludes times when the servers cannot be reached via the Internet due to technical or other reasons beyond the control of TeamEcho GmbH (force majeure, fault of third parties, etc.).
9.4. Planned or required maintenance that results in downtime and has been previously communicated as a maintenance window will be counted as available.
10 Liability of TeamEcho GmbH
10.1. TeamEcho GmbH is not liable for information published via its service by service users, users, employees, team members, partners or vicarious agents of the service users or other persons.
10.2. TeamEcho GmbH is not liable for the quality of the survey responses or the service user-employee relationship.
10.3. TeamEcho GmbH makes every effort to keep the service free of computer viruses, harmful computer codes or other damage. However, TeamEcho GmbH generally recommends that the service user ensure adequate protection against such impairments himself/herself, especially before downloading data and information.
10.4. TeamEcho GmbH is not liable for damages caused by the loss or misuse of access data of any kind by the service recipient or users. The service recipient is obligated to inform TeamEcho GmbH without delay of any loss or misuse of access data.
10.5. TeamEcho GmbH is not liable for third parties accessing data in an unlawful or illegal manner or preventing or disrupting the service, despite all security precautions taken. In general, TeamEcho GmbH does not recommend entering sensitive data into the system.
10.6. TeamEcho GmbH is not responsible for performance disruptions due to force majeure, in particular the failure or overload of global communication networks.
10.7. As a matter of principle, TeamEcho GmbH is only liable for direct damages in connection with the use or utilization of the services of TeamEcho GmbH and only if they have been caused by intent or gross negligence on the part of TeamEcho GmbH. TeamEcho GmbH’s liability for slight negligence, compensation for indirect, consequential and/or incidental damages, in particular also consequential damages caused by defects, pure financial losses, lost profits and damages to third parties is excluded to the extent permitted by law. TeamEcho GmbH’s liability is also limited on the one hand to foreseeable damages typical for this type of contract and on the other hand to the amount of the monthly fee paid by the service recipient in the last three months or, in the case of one-time billing, the corresponding aliquot fee for three months.
10.8. Claims for damages must be asserted in court at the competent court within one year at the latest from the point in time at which the specific service causing the damage was used, in the event of any other exclusion. Any liability is excluded for damages asserted after the expiration of this period or damages that arise only after the expiration of this period.
11. Data protection
The data processing is carried out in accordance with the data protection regulations. The detailed data protection declaration of TeamEcho GmbH is available at https://www.teamecho.com/en/privacy/.
12.1. The service recipient will be sent general information by e-mail. The service recipient may object to receiving these e-mails at any time with future effect. Emails about system-relevant or technical confirmations and information cannot be deactivated.
12.2. Deviating regulations, changes or additions require a written agreement with the management of TeamEcho GmbH.
12.3. Deviating terms and conditions of the service recipient do not become part of the contract, even if they are not contradicted by TeamEcho GmbH.
12.4. The place of performance is the registered office of TeamEcho GmbH.
12.5. Invoices and receipts are delivered by e-mail or by mail.
12.6. The customer agrees to be named as a reference customer. For this purpose, TeamEcho may use the logo as well as the company name and other company trademarks.
13. Amendment of the GTC
13.1. TeamEcho GmbH is entitled to change these general terms and conditions (GTC). Even if not exclusively, but in particular also to incorporate changed legal regulations or to include new/changed services.
13.2. The service recipient will be informed about changes to the GTC by e-mail or by mail. The changes are considered approved if the service recipient does not object to the changes in writing within 14 days.
13.3. If the service recipient objects to the changes to the GTC, TeamEcho GmbH has the right to prematurely terminate and end the contractual relationship.
14 Applicable law and place of jurisdiction
14.1. All disputes arising from or in connection with the legal relationship between the service recipient and TeamEcho GmbH shall be governed by Austrian law, excluding the conflict of law rules.
14.2. The UN Convention on Contracts for the International Sale of Goods and all provisions relating to the UN Convention on Contracts for the International Sale of Goods are expressly excluded.
14.3. The registered office of TeamEcho GmbH is the exclusive place of jurisdiction for all disputes arising from or in connection with the contractual relationship with TeamEcho GmbH or the use of the services of TeamEcho GmbH.
15. Severability clause
The invalidity of individual provisions shall not affect the validity of the remaining provisions. In place of a legally invalid provision, that provision shall be deemed agreed which comes as close as possible in economic terms to the invalid provision in a legally permissible manner. This provision shall apply mutatis mutandis if there should be a gap in these provisions or if individual provisions should prove to be unenforceable.