1.1. These General Terms and Conditions (“Terms”) govern all contracts, legal relationships and business relations between TRUENDO Technologies GmbH, FN 532584 m, Handelsgericht Wien, with its seat and business address in 1220 Vienna, Leonard-Bernstein-Straße 10 (“TRUENDO Technologies“) and a client (”Client“), if the contract, legal relationship or the business relation has come about via the website www.truendo.com (“Website”), or concerns services of the TRUENDO-platform (“TRUENDO” or “Platform”), or is entered into by using TRUENDO’s services. The Terms shall apply in the version valid at the time the contract is concluded. The Terms shall also apply to all future contracts, legal relationships and business relations concluded by TRUENDO Technologies in connection with the Website or Platform, even if the Terms were not agreed upon anew. A Client’s diverging terms and conditions or other standard terms and conditions, even if in line with the industry standard, will not be recognized unless their application is expressly confirmed by TRUENDO Technologies in writing. Subsidiary agreements, reservations, amendments or supplements, must be made in writing in order to be effective and valid; this also applies to any waiver of the written form requirement.
1.2. TRUENDO supports website operators in complying with certain provisions of the GDPR, as well as in automatically determining the cookies set by a Client's website and formulating and obtaining the corresponding cookie consents. TRUENDO supports the Client in complying with certain obligations under the GDPR. However, TRUENDO does not assume or guarantee compliance and cannot replace the Client's independent activity and responsibility in complying with his/her obligations under the GDPR. In this regard, attention is drawn to Point 10. (Liability) below.
1.3. TRUENDO’s services is strictly addressed to traders. within the meaning of the EU Directive 2011/83/EU on consumer rights. For the purpose of these Terms, a “Trader” shall be any natural or legal person, any partnership with legal capacity or any legal entity or organization, for which the conclusion of a legal transaction or contract with TRUENDO Technologies or the establishment or maintenance of a business relationship with TRUENDO Technologies relates to his trade, business, craft or profession, as well as any legal entity under public law. A “Trade” or “business” within the meaning of the foregoing sentence means any permanent organization of independent economic activity, even if the activity is not profit oriented. For the purpose of these Terms “Consumer” means anybody who is not a Trader. TRUENDO Technologies does not enter into contracts with Consumers.
1.4. TRUENDO Technologies is entitled to amend and complement these Terms governing existing business relations. TRUENDO Technologies shall inform the Client about a pending adjustment of the Terms at least four weeks in advance prior to the coming into effect of the amended Terms. Such subsequent amendments of these Terms will take effect if the Client does not object thereto within four weeks from notification of the change. TRUENDO Technologies will expressly indicate to the Client at the beginning of such period for objection, that tacit consent results in the acceptance of the contractual change; TRUENDO Technologies will give the Client an opportunity for an express declaration of intent during such period. If the Client objects within the deadline, TRUENDO Technologies shall be entitled to termination of the contractual relationship. In this case, the contractual relationship ends seven days after the immediate termination was declared. TRUENDO Technologies shall refund any remaining balance to the Client.
2. Conclusion of Contract and Subject Matter
2.1. The person having the power to dispose over the Client’s account (“Account”) on www.truendo.com, or on a subdomain – for example: admin.truendo.com, shall represent the Client as “Administrator”. The Administrator shall at the same time be TRUENDO Technologies’ contact person in matters concerning the contract and its execution. The Client agrees, that he/she is represented by the Administrator regarding all matters concerning TRUENDO. It is the Client’s sole responsibility to decide on the person to act as Administrator and to whom access to the Account is granted. Any statements or declarations made by TRUENDO Technologies vis-à-vis the Administrator are considered to have been given to and received by the Client; any statements or declarations made by the Administrator are considered to be the Client’s statements or declarations. TRUENDO Technologies is not liable for any abuse of the power of representation on the Administrator’s part. The Client shall immediately inform TRUENDO Technologies of any abuse of the power of representation on the Administrator’s part. If more than one person has access to the Account or if one Client is associated with multiple Accounts, managed by different Administrators, the rules set out in this point shall apply mutatis mutandis.
2.2. By registering an Account via www.truendo.com (or admin.truendo.com or any other subdomain), the Client accepts these Terms and sends an offer to enter into a contract for the use of the services provided on the Platform. TRUENDO Technologies accepts this offer to enter into a contract by activating the Account.
2.3. The subject matter of this contract is the provision of access to the Platform, for a defined term, and the right to use the contents made available on the Platform for a defined term.
2.4. TRUENDO Technologies reserves the right to offer free services in addition to its fee-based services; TRUENDO Technologies will clearly identify any free services. The Client has no right to free services. As such, TRUENDO Technologies reserves the right to declare free services as fee-based services or to cancel or change any free-services. This does not affect the scope of any fee-based services having already been procured by the Client.
2.5. Prior to entering into a contract for fee-based services, TRUENDO Technologies will inform the Client about the content of each fee-based service, prices and payment terms. By clicking on a labeled button, whose label makes it clear that clicking this button means to place a binding order, the Client declares that he/she wishes to enter into a contract regarding the fee-based services selected and thus submits an offer in this regard. The contractual relationship is closed when the respective fee-based service is activated. The Client will receive confirmation thereof (“Confirmation of Order”) from TRUENDO Technologies by Email. The activation constitutes TRUENDO Technologies’s acceptance of the Client’s offer.
2.6. The Client shall keep the password, for access to the Account and the data privacy panel, strictly confidential and shall refrain from disclosing it to third parties. The Client will take appropriate and reasonable precautions to prevent third parties from becoming cognizant of its password. An Account cannot be transferred to other users or Clients or other third parties. TRUENDO Technologies has the right to block or delete the Account and to immediately terminate the contract, in case an Account is transferred to other users or Clients or third parties. In this case, TRUENDO Technologies also has the right to retain any remaining balance or any prepayments made by the Client.
3. Services and performance of Services
3.1. During the term of the contract, TRUENDO Technologies will offer the Client the technical ability to access the Platform (the “Service“) and to use the Platform functionalities under these Terms.
3.2. TRUENDO Technologies shall be entitled to change or update the Service (including the infrastructure, security features, technical configurations, applications etc.) during the term of the contract, in order to keep abreast of technologies, industrial practices, legislative changes and user behavior. Such changes made by TRUENDO Technologies will not lead to a significant restriction of capability or availability of the Services provided.
3.3. TRUENDO Technologies offers Clients several payable service packages. The contents of the respective service packages, the prices and the terms of payment are shown separately on the Platform. You can find a general overview with current service descriptions of the packages here:https://truendo.com/pricing/. The Client is free to switch packages.
3.4. TRUENDO Technologies is entitled to transfer the fulfilment of the contract in whole or in part (e.g. the hosting of the platform) to third parties or subcontractors.
4. Client’s responsibilities and obligations
4.1. The Client undertakes to upload only truthful and legal information, entries and data, and to compile the information, entries and data transmitted to TRUENDO Technologies carefully and properly, and to delete or update, as the case may be, any information, entry and data which is no longer current. The Client shall be exclusively responsible for the content and correctness of data transmitted.
4.2. Moreover, the Client’s obligations shall include, without being limited to:
4.2.1. the obligation to make timely payment of the agreed fee. The Client shall refund TRUENDO Technologies any and all costs incurred, if the service-fee payable cannot be deducted;
4.2.2. the obligation to protect the user and access authorizations assigned to the Client or the Administrator or its users (in particular passwords) as well as the protection of identification and authentication backups from third-party access and hence, not disclosing these to unauthorized users; the Client shall hold TRUENDO Technologies harmless, indemnifying TRUENDO Technologies, regarding any abuse of the user and access authorizations assigned to the Client or the Administrator or its users (in particular passwords), the same is valid for identification and authentication backups. TRUENDO Technologies shall not be held liable for any abuse regarding the user and access authorizations which are assigned to the Client or the Administrator or its users (in particular passwords);
4.2.3. the obligation to ensure that copyright rules are observed and that unlawful or unlawfully obtained or reproduced data or information is not provided or uploaded, if data and information is provided or are uploaded by the Client or an Administrator;
4.2.4. the obligation to obtain the consent of those concerned (e.g. Client’s employees), insofar as personal data is collected, processed or used in connection with the use of the Platform, where there is no statutory basis approving such collection, processing or use;
4.2.5. the obligation to refrain from the following, unless authorized to do so: retrieving, or having third parties retrieve, information or data, or interfering with programs run by TRUENDO Technologies, or having third parties interfere with such programs, or accessing data networks of TRUENDO Technologies.
4.3. The Client is prohibited in providing to, uploading to or saving content on the Platform, where its provision, publication and use infringes legislation in force at the time or agreements with third parties. In particular, the Client undertakes not to provide or upload any data whose content infringes the rights of third parties (e.g. personality rights, name rights, trademark rights, copyrights, rights to data protection etc.) or violates applicable legislation.
4.4. The Client undertakes only to use the Services provided by TRUENDO Technologies to the extent that this is lawful and permissible under these Terms. Misuse will lead to the revocation of the right of use granted by registration. In the event that TRUENDO Technologies becomes aware of misuse, it may deactivate or delete the Client’s respective Account and terminate the Contract without notice. Previously paid fees, if any, will not be refunded in such case.
4.5. In accordance with point 4.4 above, misuse shall include, without being limited to, unlawful use, such as copyright infringements. Moreover, misuse shall be deemed to include the entry, provision, dissemination, storage or other exploitation of unlawful or unlawfully obtained or unlawfully copied data; as well as the dissemination, storage or provision of data or content, for unlawful purposes or if possession of such data or content is prohibited.
4.6. Also, TRUENDO Technologies is entitled to immediately delete the Client’s respective Account and terminate the Contract without notice, in the following instances, which are considered fraudulent:
4.6.1. sending and storing malware, viruses, worms, trojans as well as harmful computer codes, files, scripts, agents or programs,
4.6.2. uploading programs able to disrupt, impair or obstruct TRUENDO Technologies’s operations,
4.6.3. the Client’s attempt to gain unauthorized access to a Service or the Platform or individual modules, systems or applications or to grant third parties such access.
4.7. The Client shall exempt and indemnify TRUENDO Technologies of all claims by third parties, including reasonable costs of defending its rights, if such claims are based on the Client’s use of the Platform, where the Client’s content is in breach of the contract or where it can be viewed in a manner that constitutes misuse and/or unlawful use. This indemnifying provision shall apply mutatis mutandis, where such breach, misuse or unlawful use happened where the Client condoned such actions or where such actions come from within the Client’s sphere of influence, i.e. if the Client’s account – even without his/her knowledge but due to his/her negligent behavior – was used/misused in such a manner. In case the Client argues that the Account responsible for the damage was used without his/her consent, negligence on the Client’s part is assumed. This indemnity obligation is applicable regarding any and all possible third party claims as well as administrative or judicial penalties, if such claims or penalties pertain to disputes under data protection, copyright or other legislation linked with the Platform’s use. If the Client identifies or ought to identify such a breach or the risk of such a breach, he/she shall be obliged to inform TRUENDO Technologies in writing without delay. The Client will support TRUENDO Technologies in defending itself against such claims, such support including, without being limited to, the provision of any and all information required for such defense.
5. Security, availability
5.1. To the extent that is economically reasonable, TRUENDO Technologies will use state-of-the-art security technology (e.g. encryption and password protection) when making the Platform available.
5.2. For fee-based Services, the Parties agree on an annual average of 97% platform availability. If the servers of the host provider, where the Platform is hosted, are down, TRUENDO Technologies shall not be liable for this server downtime and any resulting damage. The Parties agree that a service like Truendo can only be made available and maintained via high-performing servers of third parties.
6. Right to Platform Use and Requirements of Contractual Use
6.1. The Client is given the non-exclusive and non-transferable right to access the Platform via telecommunications for his own internal business use; such use shall be in a proper manner and in conformity with the contract, and such right shall be granted for the term of the contract; the Client is prohibited to grant sub-licenses to such right of use, and the Client shall use the Platform’s functionalities via a browser in accordance with the contract. The Client is not granted any further rights, including rights to the software applications linked with the Platform or to the operating software.
6.2. The Client shall not be entitled to use the Platform beyond the scope of contractual use. Without TRUENDO Technologies’s unambiguous approval, or without a partner contract, the Client shall in particular not be entitled to permit platform use via its own Account(s) to third parties, including its affiliates, external service providers, cooperation partners or subcontractors. Moreover, the Client is prohibited to reproduce, sell or loan the platform for a defined or undefined term or to grant access to the Platform via its own Account(s) to third parties, that is, neither for payment nor without payment; furthermore, the Client is prohibited from letting or leasing out their access to the Platform.
7. Term of the Contract
7.1. The contract is concluded for an indefinite term.
7.2. The contract may be terminated at any time by either party as per the end of the contract term, subject to a notice period of 30 days. The first payment shall be the month in which the contract is concluded; an adjustment to the calendar month shall not be made. If the Client is not using any fee-based Services, TRUENDO Technologies shall be entitled to discontinue providing the Service or to terminate the contract with the Client at any time without notice.
7.3. The Client shall at all times be entitled to delete its Account. Deletion shall be considered equivalent to termination of the contract as per the earliest possible date.
7.4. The statutory right to termination without notice for cause shall be unaffected by this clause. Cases entitling TRUENDO Technologies to terminate the contract without notice are especially, but not only, the misuse as defined in clause 4.3, 4.4, 4.5 and 4.6 of these Terms.
8.1. Apart from the Terms and Conditions of Payment published on the website, the following shall apply to fee-based Services:
8.2. Any and all prices stated are net prices subject to statutory value-added tax at the applicable rate.
8.3. The Client shall be obliged to pay a monthly or annual usage fee to TRUENDO Technologies for selected fee-based Services (“Usage Fee”). The amount payable is subject to the price list of TRUENDO Technologies applicable at the time of the order (see https://truendo.com/pricing/) and will be indicated to the Client before completing an order.
8.4. The Usage Fee shall be payable in advance. The billing period starts with the date the Account is activated by TRUENDO Technologies.
8.5. TRUENDO Technologies shall be entitled to adjust the Usage Fee and/or the price list relating thereto in the event that the contract term is extended. TRUENDO Technologies will give the Client one month’s advance notice of any Usage Fee adjustments. A subsequent adjustment of the Usage Fee shall become binding, if the Client fails to object within four weeks after being notified of the adjustment. TRUENDO Technologies shall inform the Client about the consequences of a failure to object and offer him/her the possibility to make an express declaration in this regard. In case the Client objects to the adjustment within four weeks, the contract shall be considered to be terminated by the Client as per the next possible date.
8.6. The Usage Fee may only be paid via credit card. After payment has been made, the fee-based Service ordered will be activated. After payment, the Client shall receive an invoice or order confirmation to the e-mail communicated. Paper invoices are not provided.
8.7. In the event of late payment on the Client’s side, TRUENDO Technologies shall be entitled to suspend the Client’s access to the Platform until all outstanding payments have been made. The Client shall not be entitled to any setoff unless related claims were confirmed by court and are final and unappealable, or if related claims were recognized by TRUENDO Technologies in writing.
9.1. TRUENDO Technologies warrants (in respect of fee-based Services only) that the quality of the Services is essentially as agreed upon but not that (i) the Services are rendered free of error or disruption and that (ii) the Services function in combination with any and all content, applications, programs, plugins or systems of the Client or with any other hardware and software or systems or data, which the Client may have or use.
9.2. Moreover, the Client acknowledges that TRUENDO Technologies does not control online data transmission and that the Services could be subject to restrictions, delays and other problems with TRUENDO Technologies not being responsible for delays or other damage or loss caused by such problems. TRUENDO Technologies is not responsible for errors arising from content or applications of the Client or third parties.
9.3. The Client shall inform TRUENDO Technologies of any Service breakdown without delay via e-mail to: email@example.com. Any fault reports sent through this channel shall contain any and all relevant information for TRUENDO Technologies to identify and eventually remove the essential fault.
10.1. TRUENDO Technologies will only assume liability for damage or loss demonstrably caused by TRUENDO Technologies or one of its legal representatives or vicarious agents with severe gross negligence (“krass grobe Fahrlässigkeit”) in the event that the Client uses fee-based Services.
10.2. TRUENDO Technologies merely provides Clients with a Platform (TRUENDO) which supports the Client in complying with certain obligations arising from the GDPR. TRUENDO Technologies assumes no liability whatsoever for the Client actually fulfilling his obligations under the GDPR. The Platform TRUENDO assists the Client in the performance of certain obligations under the GDPR, but TRUENDO does not assume or guarantee the performance and cannot replace the independent activity and responsibility of the Client in the performance of his/her obligations under the GDPR. The ultimate responsibility regarding compliance with the obligations under the GDPR remains with the Client.
10.3. TRUENDO Technologies does not check the data entered by the Client on the Platform and the settings made there for their accuracy, topicality, relevance, correctness or legality. This applies in particular to the data entered by the Client in order to obtain support in complying with certain obligations under the GDPR. Such data that the Client enters in order to obtain assistance in complying with certain obligations under the GDPR are, amongst others, the entries made in the TRUENDO Console; the Client’s confirmation regarding the cookies on his website determined by TRUENDO; the confirmation or change of the crawler’s findings regarding the content, programs and plug-ins used on the Client’s website (see section 10.4); and the answers and entries made in a questionnaire regarding the settings of the Client's website and regarding the programs and plug-ins used on the Client's website, for which the Client wishes to use TRUENDO. The Client shall be liable for the legal risks arising in particular from incorrect entries.
10.4. TRUENDO uses a search software ("Crawler" or “Scanner”) which attempts to determine the data protection of sensitive content, programs or plug-ins the Client uses on his/her website. Based on the Crawler's search, the Console gives suggestions to the Client regarding his privacy statement or cookie consent. The Client acknowledges that the Crawler's suggestions do not represent a complete, error-free or final analysis of his/her website and that he/she must enter the relevant data himself/herself and make the correct settings himself/herself. The Client may not rely on the Crawler's suggestions; the suggestions are merely aimed at facilitating matters for the Client. The Client’s confirmation or modification of the Crawler's proposals are considered data entered on the Platform and settings made there within the meaning of section 10.3 of these Terms.
10.5. The Client acknowledges that the Crawler only searches his/her website for new content at certain intervals and that the suggestions in the Console are therefore not necessarily always up to date and that changes to the Client’s website may not be displayed, if these changes occurred after the last search.
10.6. TRUENDO Technologies is not able to establish the data protection compliance for a website, which is in non-compliance with data protection laws. TRUENDO Technologies merely supports the Client in fulfilling certain obligations arising from the GDPR, e.g. preparing privacy statements or a cookie consent. TRUENDO Technologies endeavours to adapt the proposed privacy statement (or cookie consent) as appropriately as possible to the contents, programs and plug-ins used by the Client's website. If the Client's website contains illegal content, programs or plug-ins, such content, programs or plug-ins will not become legally justified by using a privacy statement (or cookie consent) - or any other measure in which TRUENDO Technologies offers support. The Client is solely responsible for the contents, programs and plug-ins on his/her website.
10.7. The fact that TRUENDO proposes a privacy statement or an element of a privacy statement (or a cookie consent) for a particular content, program or plug-in does not mean that such content, program or plug-in conforms to data protection laws or can be legally used on the Client’s website. The Client expressly acknowledges that he/she must independently check the legal conformity of the content, programs and plug-ins he/she uses and that any function, notification or suggestion by TRUENDO is not an indication that the content, programs and plug-ins may be used by him/her or that they comply with the GDPR or other statutory standards.
10.8. TRUENDO Technologies will endeavour to adapt and update TRUENDO in such a way that it is suitable for its purpose of facilitating compliance with obligations under the GDPR. TRUENDO Technologies expressly does not warrant that TRUENDO will be legally up to date at all times nor that it will facilitate compliance with all obligations under the GDPR or take into account all obligations under the GDPR. TRUENDO Technologies expressly points out that the Client is solely responsible for checking and ensuring compliance with his/her obligations under the GDPR. TRUENDO Technologies assumes no liability that the Client will be in compliance with all obligations under the GDPR, when using or by using the Platform. TRUENDO Technologies therefore assumes no responsibility or liability whatsoever for any fines, penalties, claims for damages or other claims of third parties imposed on the Client, which the Client pays, has to pay, or which the Client undertakes to perform or fulfil, which are related to his/her obligations under the GDPR and with which the Client is confronted despite or because of the use of TRUENDO. TRUENDO Technologies also assumes no responsibility or liability whatsoever for any other obligations or services and the related costs which the Client has to fulfil or perform in connection with his obligations under the GDPR and with which he is confronted despite or because of the use of TRUENDO.
10.9. In any case, TRUENDO Technologies’s liability is limited to the amount corresponding to three times the Usage Fee for the term of the contract (in the event of contracts for an unlimited period, this shall be defined as a cumulative annual usage fee). Any liability beyond this is expressly excluded.
10.10. TRUENDO Technologies is not liable for damages caused by third parties (e.g. hackers), in particular by unauthorized access to or interference with its Platform, web server, data or programs. TRUENDO Technologies is also not liable for the behaviour of the manufacturer or the operator of the web servers used by TRUENDO Technologies or for damages caused by errors or failure of the web servers.
10.11. Liability for indirect damage, lost profits, expenses arising from a disruption of business operations, data loss or third-party claims, incidental damage or consequential damage caused by a defect are also excluded.
10.12. The Client’s claims for damages against TRUENDO Technologies will become statute-barred (statute of limitations) after six months after the damage or loss and the party causing the damage or the damaging event have become known, unless a shorter period is stipulated by law.
10.13. TRUENDO Technologies is not responsible for delays in performance due to force majeure and due to extraordinary or unforeseeable events, which cannot be prevented even by special care taken by TRUENDO Technologies (these include in particular strikes, official or court orders, cases of improper delivery by third parties and subcontractors and failures of the web servers from which TRUENDO Technologies offers and operates the platform). Such incidents entitle TRUENDO Technologies to postpone the service for the duration of the obstructive event. TRUENDO Technologies’s liability for damages resulting from force majeure or due to extraordinary or unforeseeable events is excluded.
11. Final Provisions
11.1. These Terms and any contract with TRUENDO Technologies shall be governed by the laws of the Republic of Austria, hereby expressly excluded are provisions and statues governing or pertaining to the “conflict of laws” and the United Nations Convention on the International Sale of Goods. The place of performance shall be Vienna (Austria) and the courts in Vienna (Austria) shall have exclusive jurisdiction in any and all disputes arising from and in connection with this contract.
11.2. The Client is not entitled to assign contracts or rights and obligations under these Terms, including the use of the Services wholly or partly to third parties without the prior written consent of TRUENDO Technologies.
11.3. In the event that a provision of these Terms is or becomes ineffective or unenforceable, or in the event of a contractual gap (casus incogitatus) therein, the effectiveness and enforceability of the remainder of the Terms shall be unaffected. The contractual gap or ineffective or unenforceable provision shall be replaced by a provision which is as close as possible to the intended and economic purpose which the parties aim at. In the event of excessive provisions to the detriment of the Client, the excessive provision shall be reduced to its legally permitted core.
11.4. The German version of these Terms, which follow subsequently to these English Terms shall prevail over the English one for all matters of interpretation.
Valid as of April 2021