- Scope, object of the contract, definitions
- The following general terms and conditions ("GENERAL TERMS AND CONDITIONS") Apply to all orders from FameL GmbH, Steinbruchweg 20, 8054 Seiersberg-Pirka, Austria (hereinafter"we","us") Via our online shop https://almondo.wbo24.eu/home/shop (hereinafter" Online Shop ") by our customers (hereinafter"they","customer").
- consumer is any natural person who concludes a legal transaction for purposes that can largely not be attributed to their commercial or independent professional activity. Entrepreneurs i. S. d. Terms and conditions are natural or legal persons or partnerships with legal capacity who, when concluding the legal transaction, act in the course of their commercial or independent professional activity. Customers i. S. d. Terms and conditions are both consumers and entrepreneurs.
- The subject of the contract is
- the temporary authorization to use the functionalities of the Almondo software described in Appendix 1.3 (hereinafter "Almondo") In the" Software as a Service "model,
- the optional purchase of products such as board game and African drum (darbuka) that can be used in addition to "Almondo".
- By clicking on the appropriate field to accept these conditions you accept the validity of the following terms and conditions. If you do not want to accept these terms and conditions, you cannot use our online shop for orders.
- Terms and conditions of the customer that conflict with or deviate from these General Terms and Conditions do not become part of the contract.
- For all orders, the general rules of Section A and the additional rules of Sections B and C apply.
- General provisions
- Conclusion of contract
- The presentation of the products in the online shop is not a legally binding offer, but non-binding. By clicking the "Add to Cart" and "Checkout" buttons, you are not yet submitting a binding offer to order. All entries are displayed again in a confirmation field and can be corrected there. Your order will only be bindingly transmitted to us as a contract offer by clicking the "Buy Now" button. The receipt of the order is confirmed by an automated e-mail immediately after the order has been sent. The binding acceptance of the order by us lies in such an email.
- The language available for the conclusion of the contract is German.
- Contract text storage
We save the contract text and send you the order data and our terms and conditions by email. You can view and download the terms and conditions at any time on our website at https://almondo.wbo24.eu/home/shop.
- Prices and terms of payment
The shipping costs are not included in the price. The shipping costs are displayed in the online shop before sending the order and shown separately on the invoice. The prices shown in the online shop during the ordering process are binding for the respective order, subject to section 23.1. In addition, the prices are non-binding and can be changed at any time.
- Right of withdrawal for consumers for distance contracts
- Right of withdrawal. Customers who are consumers generally have the right to cancel the contract within fourteen (14) days without giving any reason. If only digital content is supplied, ie only data that is not on a physical data carrier and that is produced and made available in digital form, the cancellation period is fourteen (14) days from the day the contract is concluded. In the event that goods are delivered, the right of withdrawal begins with the delivery of the last partial shipment / the last goods.
To exercise your right of withdrawal, you (FameL GmbH represented by the managing director Andreas Lerch, Steinbruchweg 20, 8054 Seiersberg-Pirka, Austria, phone number: +43 613/283877, email: firstname.lastname@example.org) by means of a clear statement (e.g. a letter sent by post or e-mail) about your decision to cancel this contract. You can use the attached model withdrawal form, but this is not mandatory.
To meet the cancellation deadline, it is sufficient for you to send your communication regarding your right of cancellation before the cancellation period expires.
- Consequences of cancellation. If you cancel this contract, we have made all payments we have received from you, including delivery costs (with the exception of the additional costs that result from the fact that you chose a different type of delivery than the cheapest standard delivery we offer have) to repay immediately and at the latest within fourteen days from the day on which we received notification of your cancellation of this contract. For this repayment, we use the same means of payment that you used in the original transaction, unless expressly agreed otherwise with you; under no circumstances will you be charged any fees for this repayment.
In the case of the purchase of goods, we can refuse repayment until we have received the goods back or until you have provided proof that you have returned the goods, whichever is the earlier.
You must return or hand over the goods to us immediately and in any event no later than fourteen days from the date on which you inform us of the cancellation of this contract. The deadline is met if you send off the goods before the period of fourteen days has expired. You bear the direct costs of returning the goods.
You only have to pay for any loss in value of the goods if this loss in value is due to handling that is not necessary for checking the nature, properties and functioning of the goods.
- Model withdrawal form
(If you want to cancel the contract, please fill out this form and send it back.)
To FameL GmbH, Steinbruchweg 20, 8054 Seiersberg-Pirka, Austria, email: email@example.com:
Hereby I / we (*) cancel the contract concluded by me / us (*) for the purchase of the following
Goods (*) / the provision of the following service (*)
Ordered on (*) / received on (*)
Name of the consumer (s)
Address of the consumer (s)
Signature of the consumer (s) (only for notification on paper)
(*) Delete where inapplicable
- The right of withdrawal expires prematurely
If only digital content is supplied, i.e. only data that is not on a physical data carrier and that is produced and made available in digital form, the right of withdrawal expires immediately if we have started executing the contract after you
1. have expressly agreed that we start executing the contract before the cancellation period expires, and
2. You have confirmed your knowledge that you will lose your right of withdrawal when you start executing the contract.
- Limitation of liability
- We have unlimited liability for damage to life, limb or health that is based on an intentional or negligent breach of duty on our part. We are also liable without limitation for other damages that are based on an intentional or grossly negligent breach of duty by us.
- We are only liable to a limited extent for the typically foreseeable damage for damages due to a simple negligent violation of such obligations, which are fundamental for the appropriate and flawless execution of the contract and on the fulfillment of which the customer can trust and trust accordingly (cardinal obligations).
- Other claims for damages, in particular according to § 536a BGB, are excluded subject to the following section 6.4.
- Limitations of liability and exclusions of liability according to this Section 6 and Section 13.7 do not affect our liability in accordance with the mandatory statutory provisions of the Product Liability Act, due to the malicious concealment of a defect and the assumption of a guarantee for the quality of a service.
- This number 6 applies to any claims by us by the customer regardless of the legal basis, in particular for contractual and tortious liability.
- Insofar as our liability is limited or excluded according to this Section 6, the restrictions or exclusions also apply to the personal liability of our employees, our legal representatives and our vicarious agents.
- We are only liable for our own content on the website of our online shop. To the extent that access to other websites is made possible with links, we are not responsible for the external content contained therein. We do not adopt the third-party content as our own. If we become aware of illegal content on external websites, we will block access to these pages immediately.
- Force majeure
- Neither party has to vouch for the non-fulfillment of its contractual obligations if the non-fulfillment is due to an obstacle beyond its control ("Force majeure"). Force majeure within the meaning of this contract includes in particular: (a) (impending) war or civil war, (b) fire, (c) natural disasters such as floods, storms, etc., (d) decisions by legislators or governments, (g) strike, Lockout or other forms of industrial action (concerning both own and external employees), (h) confiscation.
- The party affected by force majeure will immediately notify the other party of the beginning and end of the obstacle in writing. As long as the state of force majeure continues, the time for the provision of services for both parties will be extended by the duration of the delay due to force majeure plus an appropriate restart time. In the event of non-performance in accordance with Section 7.1 over a period of more than six (6) months, each of the contracting parties is entitled to terminate the contract.
- Set-off and retention rights of the customer
- The customer has the right to offset only if his counterclaims have been legally established, recognized or are not disputed by the seller. The right of the buyer to offset against contractual or other claims from the initiation or implementation of this contractual relationship (in particular also claims that result from the fact that the customer has exercised his legal right of withdrawal for consumers) remains unaffected.
- The customer can only exercise a right of retention if his counterclaim is based on the same contractual relationship.
- Copyright, industrial property rights
All materials in the online shop are our property and are protected by copyright or the subject of other intellectual property rights. The customer is only allowed to view and download these materials for his own personal, non-business purposes.
- contact details
- Postal address: FameL GmbH, Steinbruchweg 20, 8054 Seiersberg-Pirka, Austria
- Email address: firstname.lastname@example.org
- We are entitled to make changes to the applicable terms and conditions, which we will announce to the customer in advance (including a period of objection and an indication of the importance of his behavior) in text form by email - by highlighting the change in bold - and which will come into effect if the Customer does not object to them within six (6) weeks of receiving notice.
- If a provision of these general terms and conditions should be or become ineffective in whole or in part, this does not affect the effectiveness of the remaining provisions of these general terms and conditions.
- These terms and conditions are subject to Austrian law; this does not apply to the applicability of the United Nations Convention on the International Sale of Goods of April 11, 1980 (CISG provisions). For consumers, this choice of law only applies insofar as the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer is habitually resident.
- If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from this contract is the court responsible for our place of business, unless an exclusive place of jurisdiction is given. However, we are also entitled to sue the merchant at his place of residence or place of business. The competence, which may be reasoned by a exclusive jurisdiction remains untouched.
- We are obliged to inform consumers that an appropriate online platform is available from the European Commission with regard to so-called online dispute resolution. Customers can access this platform at the following link: https://ec.europa.eu/consumers/odr/. In this context, we are also obliged to provide customers with our email address. This is: email@example.com.
- We always endeavor to clarify any discrepancies with the customer with regard to existing contracts. However, we would like to point out that we are not obliged to participate in a consumer arbitration procedure (according to VSBG) and unfortunately also do not offer our customers the opportunity to participate in such a procedure.
- Special provisions for supplementary products (section 1.3)
- We only owe to entrepreneurs the timely, proper delivery of the goods to the transport company and are not responsible for delays caused by the transport company. Unless otherwise expressly agreed, delivery times specified by us are therefore non-binding. With the delivery of the goods to the transport company, the risk of accidental loss and accidental deterioration of the goods passes to the customer. We are not obliged to insure or have the goods ordered insured against damage in transit. Partial deliveries are permitted.
- Towards consumers, the risk of accidental loss or accidental deterioration of the goods sold also passes to the consumer when the goods are dispatched when the goods are handed over.
- The handover is the same if the customer is in default with the acceptance.
- We do not guarantee that the products shown in our online shop are always available. If the delivery of a product should not be possible or will take longer, for example because the corresponding goods are not in stock, we will inform the customer before the contract is concluded.
- Without prejudice to other contractual or statutory termination rights and the statutory right of withdrawal for consumers (section 5), the customer is not entitled to cancel binding orders or to return goods that have already been accepted without our express written consent.
- We are entitled to withdraw from the contract or to terminate it if it emerges that the customer is not creditworthy, especially in the case of (i) an unsuccessful enforcement measure against the customer or an oath of disclosure made by him, even if this is not directly related to the business relationship between us and the customer stands, (ii) that after conclusion of the contract it becomes apparent that the customer has provided incorrect information regarding his creditworthiness and that this incorrect information is of considerable importance.
- We do not assume any quality or other guarantee for the services to be provided by us, unless we have expressly declared a guarantee designated as such in writing in individual cases. Manufacturer guarantees remain unaffected.
- With regard to entrepreneurs, the customer will check the goods for completeness and defects immediately, but at the latest within 14 days after delivery. After the deadline, the assertion of warranty rights in view of the defect in question is excluded for entrepreneurs.
- If the customer is an entrepreneur, the quality of the goods is basically only our product description as agreed. Public statements, promotions or advertising by the manufacturer also do not constitute a contractual condition of the goods.
- The following applies to entrepreneurs, if there is a material or legal defect, we will provide supplementary performance at our discretion by rectification or by subsequent delivery. Consumers have the choice of whether they require supplementary performance through rectification or subsequent delivery. We are entitled to refuse the type of supplementary performance chosen if it is only possible with disproportionate costs and the other type of supplementary performance remains without significant disadvantages for the consumer.
- Only in the event that (i) we seriously and definitively refuse the subsequent performance, (ii) the subsequent performance fails, or (iii) a reasonable deadline set by the customer for subsequent performance has not been met, the customer is entitled to compensate accordingly reduce or terminate the contract or withdraw. Subject to Section 6, the customer can also claim damages.
- As far as entrepreneurs are concerned, unless the nature of the defect or the other circumstances indicate otherwise, the supplementary performance is considered to have failed after the second unsuccessful attempt at the earliest. Towards consumers, the supplementary performance is deemed to have failed after two unsuccessful attempts.
- For entrepreneurs, the warranty period is twelve (12) months from delivery of the goods, for consumers, the warranty period is 24 months. This does not apply if we have unlimited liability in accordance with section 6.
- Retention of title
- For consumers, goods delivered by us remain our property until full payment of the purchase price (retention of title). In the case of entrepreneurs, goods delivered by us remain our property until the purchase price has been paid in full and all claims resulting from the business relationship have been settled (extended retention of title).
- The assertion of our rights from the retention of title does not release the customer from his contractual obligations. The value of the goods at the time of the return is only offset against our existing claim against the customer. This section 14 is not intended to change the regulations on the transfer of risk with regard to damage or loss of the goods according to section 12.
- Special provisions for Almondo
- Deployment of Almondo
- We keep Almondo ready for use on data processing systems (servers). The customer can access the functions of Almondo via our website https://almondo.wbo24.eu/home/shop and use them within the framework of this contract. We also provide the customer with the Almondo application (hereinafter referred to as the "app") for free download in the app stores IOS Apple Store and Play Store Android.
- You will receive the administrator access data for the use of Almondo via our website and the app and for setting up further user accounts within the scope of the authorizations agreed upon when ordering by e-mail or with delivery of the accessories (if available for the respective version). Every additional user created by the administrator receives his access data by email.
- We provide the customer with the functionalities of Almondo with an availability of 99 % on a monthly average. Availability is not considered limited, though
- it is disturbed due to customer-specific systems linked to the Software as a Service system.
- predictable maintenance work. Planned maintenance work will be announced with a lead time of at least 48 hours. Shorter lead times are possible for urgent maintenance work - especially due to safety-related defects.
- unscheduled maintenance times that are not caused by a culpable violation of our legal obligation take place. Unscheduled maintenance time is the time during which maintenance work is carried out that is immediately necessary to maintain the proper operation of the server software and the server or due to current security gaps that impair or could impair our services. We make every effort to minimize the need for such unscheduled maintenance through regular maintenance and care.
- The customer is responsible for his connection to the Internet, including the required data transfer rates. He is responsible for fulfilling the system requirements for the provision of Almondo, ie a modern browser in a current version and a working internet connection, and for installing and operating the app. The transfer point of the server software is our external firewall, which is connected to the Internet.
- The measurement period for the planned availability is one calendar month each. The availability of the Software as a Service system is measured by regularly calling up a self-test from an external monitoring system. The Software as a Service system must answer this call within a defined time with a defined message. We provide you with the measurement reports on request.
- We provide the customer with the functionalities of Almondo with an availability of 99 % on a monthly average. Availability is not considered limited, though
- Updates and upgrades
We will maintain Almondo and thereby carry out any updates and upgrades (new versions of the software with and without new functionality). We decide on the type, scope and frequency of updates and upgrades based on technical requirements.
- Rights of use
- We grant the customer the right to use the functionalities of Almondo for the duration of the contract for their own purposes within the framework of the license model agreed when ordering. This also applies to the upgrades and updates provided by us during the contract period.
- The customer does not receive any reproduction rights to Almondo and is not authorized to download Almondo and / or to run it on its own systems. Almondo is protected by copyright and all copyrights, usage rights and other protective rights remain with us.
- We guarantee that the software is free from third-party rights that restrict or exclude use in accordance with the contractually agreed scope. If the contractual use of the software is impaired by third party property rights, we have the right, to a reasonable extent for the customer, to either change the software so that it falls out of the protected area without significant restrictions in use, or to obtain the authorization that the software be unrestricted and can be used in accordance with the contract without additional costs for the customer. If the contractual use of the software is impaired by third party property rights through no fault of our own, we can refuse the services affected. We will inform the customer of this immediately and provide him with suitable access to his data. In this case, the customer is not obliged to pay. Other claims or rights of the customer remain unaffected.
- The customer is not entitled to make Almondo accessible to third parties.
- Other obligations of the customer
- The customer will fulfill the obligations for the provision and processing of services. He will be particular
- if the customer is an entrepreneur, make sure that the access data for using Almondo and the app are only available to those currently employed by him. If the app can be downloaded to private mobile devices, the app must be deleted when the user is no longer with the customer. The customer is obliged to check the deletion of the app by the user. In this case, the customer must also deactivate the associated user access.
- take suitable precautions to protect Almondo and access to the app from unauthorized access by third parties. For this purpose, he will keep the access data assigned to him and administered by him at a secure location and instruct the persons authorized to use it accordingly. As soon as the customer has reason to suspect that his IDs have been obtained by unauthorized third parties or are being misused, he must immediately inform us of this.
- comply with all applicable laws and regulations when using Almondo. In particular, the customer is prohibited from storing, transmitting or otherwise publishing (user-created) content that violates legal provisions, in particular the commercial property rights or copyrights of third parties.
- if the customer is an entrepreneur, report any errors in the contractual services to us immediately in accordance with Section 20, specifying how and under what circumstances the error or defect occurs and actively support us in troubleshooting;
- Should third parties assert claims against us due to the breach of the customer's obligations under this contract, in particular with regard to user-created content, the customer releases us from these claims if he is an entrepreneur and assumes the defense of these claims own costs. We will inform the customer immediately of the assertion of such claims and provide the customer with the information necessary to defend against the claims.
- If the customer violates an essential obligation set out in this contract (sections 9, 18.2, 18.4, 19), we can temporarily stop the provision of services, ie block access to the server software and the data. Access will only be restored once the breach of the obligation concerned has been permanently eliminated. In this case, the customer remains obliged to pay the remuneration.
- The customer will fulfill the obligations for the provision and processing of services. He will be particular
- User-created content
If the customer is an entrepreneur, he grants us an indefinite, non-exclusive right to keep individual learning content created by the users he uses for the use of Almondo, available in a database and for retrieval save, reproduce and make accessible to third parties by other users.
- Malfunction reports
- Claims due to defects
- We guarantee that the software has the agreed quality in accordance with this contract during the term of this contract, in particular the availability promised in section 16.1 is observed.
- If the agreed availability is undershot, the provisions of Section 22.2 apply exclusively.
- If the planned availability agreed in accordance with Section 16.1 is not reached in a month, the customer has the right to reduce the agreed remuneration for the corresponding month appropriately.
- In the case of insignificant defects, the reduction is excluded.
- For defects in the contractual services that do not affect the availability ("other defects“), We are liable in accordance with paragraphs 22.5 to 22.8.
- There is no other defect in the case of malfunctions that cannot be attributed to a malfunction of the software, e.g.
- Faults in systems of the customer or third parties that affect the software, eg servers that cannot be reached or long response times from servers that deliver content that is further processed by the software;
- Disruption of the network infrastructure of the Internet;
- Operating errors by the customer.
- We are obliged to remedy other defects within a reasonable period and after receipt of a notice of defects. In principle, only reproducible defects can be eliminated.
- If a defect is not successfully remedied within a reasonable period set by the customer for reasons for which we are responsible, the customer can reduce the agreed remuneration by a reasonable amount. The amount of the right to reduction is limited to the remuneration attributable to the defective part of the service.
- The customer will participate in the removal of other defects free of charge and in particular will provide all the necessary documents, data etc. that we need to analyze and remedy the defects. If, due to a lack of or late cooperation by the customer, it has become impossible for us to fulfill our performance obligations, we will be released from our obligation to perform. In the case of a consumer, the exemption from the obligation to provide benefits only applies if the consumer has culpably failed to fulfill his obligations to cooperate.
- For entrepreneurs, a right of withdrawal from the contract for the ongoing use of the software due to defects is excluded. The right to terminate for an important reason remains unaffected.
- Remuneration, price adjustment and delay
- We are entitled to adjust the remuneration at our own discretionary cost increase, for example if the costs for the data center, service and updates increase. Increases in a cost element may only be used for a price increase to the extent that there is no compensation through a cost reduction in other areas. We will notify the customer of an intended price adjustment by means of a text message at least four (4) weeks before the price adjustment takes effect.
- If a price increase of more than five percent (5 %) is to be carried out, the customer has the right to object to the price increase in text form within four (4) weeks after receipt of the notification. In the event of a timely objection, this contract ends at the end of the current contract period; there is no automatic renewal in accordance with Section 24.2. If there is no timely objection, the price increase will take effect at the announced time.
- If the customer does not pay in accordance with the agreement, we can refuse the service, ie, for example in the event of a not insignificant delay in payment, block the customer's access to the software for the period of the delay. In this case, the customer remains obliged to pay the remuneration.
- Term, termination and exit management
- The usage relationship begins with the activation of the customer for the use of Almondo. The minimum term is one (1) year from the first day of the month following the month of registration by the customer.
- The contractual relationship can be terminated by both contracting parties at the earliest at the end of the minimum term with a period of three (3) months. Otherwise, the term is extended by one (1) additional year and can then be terminated with a notice period of three (3) months before the end of the contract term.
- The right of the parties to extraordinary termination for good cause remains unaffected.
- All terminations must be made in writing.
- At the end of the usage relationship, for whatever reason, the customer is no longer entitled to use Almondo and the rights granted to us by the customer in this regard fall back to us without further notice. However, the app can still be used by the customer and offline access to the content stored in the app until the end of the contract. If the app is deleted, this access will also be removed. A restoration is not possible after the end of the usage relationship.
We are entitled to change the service agreed here, especially if third parties change their services and in the event that the license terms of the photos or videos we use change for us. Changes to this contract communicated to the customer in text form by email are deemed to be accepted by the customer if the customer does not object to their validity within six (6) weeks after receipt of the change notification in text form by email. At the beginning of the period, we will specifically inform the customer of the intended importance of his behavior. The changes to this contract are only considered to be accepted by the customer if this notice has actually been given. If the customer objects to the change in due time, we can terminate the contract as soon as possible or at the time of the changeover if the legacy system cannot be continued.
- Data protection and data safety
- We and the customer will observe the applicable provisions of data protection law.
- The customer is solely responsible for the collection, processing and use of personal data using the software provided by us under this contract. The customer releases us from third party claims in accordance with Section 19.2.
- We use the customer's personal data to manage software use, to provide and bill for services and to prevent technical malfunctions. For these purposes, we collect additional usage data in addition to the personal data, such as the IP address and the device number (IMEI).
- The customer takes care of the regular backup of his data as well as the equipment of his computers and the mobile devices of the users employed with the current state of the art security measures.