1. Contractual Basis
1.1 Contracting party is EMPORIA TELECOM Produktions- und Vertriebs-GmbH & Co.KG., a limited partnership incorporated under the laws of Austria, having its corporate seat in Linz and its business address at 4020 Linz, Industriezeile 36, Austria, registered with the commercial register at the Provincial Court of Linz under the registration number FN 210960 k (hereinafter: “emporia”).
Scope of contract is the use of the platform “emporiaME” (the „Platform“ or „emporiaME“) under the terms and conditions as follows.
1.2 Emporia offers to provide the platform emporiaME including all its services and functions at the time of the conclusion of the contract. Please note that these services and functionalities may change from time to time. Emporia reserves its right, to amend, add or delete functionalities and services without further consent.
Emporia is under no duty to inform you about any changes or amendment to the abovementioned services or functionalities.
Consumer: In case you are a consumer within the meaning of the Austrian Consumer Protection Act (Konsumentenschutzgesetz – KSchG), emporia may unilaterally amend services and functionalities only if the amendment is deemed to be acceptable, in particular because the amendment in question is of minor nature and reasonable in the circumstances.
1.3 The platform emporiaME including all its services and functionalities is provided on the following legal grounds:
(a) Austrian E-Commerce Act 2002
(b) Austrian Data Protection Act 2002
(c) the sections of the Austrian Telecommunications Act that are applicable for services to be performed, in particular its Section 96.
1.5 Please note, that emporia‘s employees and agents are not entitled to conclude any individual arrangements.
Consumer: This restriction is only applicable to consumers (within the meaning of the Austrian Consumer Protection Act), if emporia notifies you before you register with the platform and you are aware of the restrictions. Formless declarations are only valid, if employees or agents of emporia have no sufficient power of representation or if you do not know that the respective employee or agent does not have sufficient power of representation.
2. Conclusion of Contract
2.1 The contract is concluded when you register successfully with the platform emporiaME, whereas the provision of your data via the data mask of the platform is qualified as an offer and the notification of the successful registration is qualified as the acceptance of the offer.
2.2 You can only make a valid offer if you fill in the mandatory fields of the registration form completely and truthfully. Emporia reserves its right to verify the information provided and to request evidence concerning your identity, capacity or power of representation. For this purpose, emporia may, in particular, require you to present an official photographic identification, a confirmation of residence or a power of attorney.
2.3 In order to conclude a contract, emporia requires a valid mailing and invoice address of the country named in the registration mask.
2.4 Emporia is entitled to reject your offer, in particular (without limitation) on one of the following grounds:
(a) lack of capacity to bear legal duties and obligations;
(b) lack of capacity to act, if no declaration of authorisation and assumption of liability by your legal representative is provided;
(c) reasonable grounds to suspect that the services provided by the platform will be misused;
(d) incomplete or incorrect information during the registration process or failure to submit the requested evidence;
(e) reasonable grounds for doubts concerning your credit-worthiness, in particular (without limitation) if emporia obtains a negative credit report, you try to reach a settlement with your creditors, insolvency proceedings are opened or rejected
due to lack of funding or you are in default of payment with respect to emporia or a company of the emporia group or you have infringed a material contractual provision in any contract concluded with emporia or a company of the emporia group within the last three years.
2.5 You agree to bear any taxes, duties and charges that may be levied as a result of the conclusion of a contract.
3.1 If not agreed otherwise, the contract is valid for an indefinite period of time.
3.2 The contract can be terminated by both parties under a cancellation period of one month starting with the last day of the month the declaration of cancellation is made.
Consumer: If you are a consumer, emporia may only terminate the contract provided that on reasonable grounds of justification.
3.3 Cancellation right for consumers: If you are consumer within the meaning of the Austrian Consumer Protection Act, you are entitled to cancel and withdraw from the contract within 14 calendar days by text message (e.g. e-mail or postal letter) and without having to give reasons. Effectuated payments will be returned. Emporia may retain a fee for usage, if you have already used the platform.
4. Impairments of Performance
4.1 It can occur that the platform emporiaME or some of its services do not or not properly work which results in you not being able to use these services as desired.
4.2 Emporia will, in such cases, use its reasonable endeavours to fix the impairments, but does not in any way guarantee or warrant the proper performance of any such service.
5. Software Rights
5.1 By concluding a contract, you are granted a right to use the platform emporiaME for the duration of the contract. These rights of usage are non-exclusive and non-transferable.
5.2 Emporia does not guarantee or warrant, that the software provided in connection with the platform emporiaME is compatible with, or meets the specific requirements of, any alien software (software not being developed by emporia), in particular (without limitation) any web browsers.
6. Notification Duties
6.1 Emporia is entitled to request personal contact information (name, address, e-mail address) in order to proof your identity. If any contact information provided in the course of the registration (or at a later point of time) is subject to a change, you are obliged to actualize your personal data without undue delay but not later than 2 weeks by e-mail to email@example.com.
6.2 If you do not notify emporia within the period of time set forth in Clause 6.1. hereof, emporia is entitled to terminate the contractual relationship within 4 weeks upon the infringement of the abovementioned notification duty. Any further claims for damages remain unaffected.
7. Information by emporia
7.1 Emporia is entitled to send declarations of legal significance, at Emporia’s sole discretion, (i) by message to your emporiaME account, (ii) by text message (SMS) to the mobile phone number provided as personal data, (iii) by e-mail to the e-mail address provided as personal data or (iv) by ground mail to the postal address provided as personal data. Declarations with legal significance can be, without limitation, declarations of termination, invoices or requests for payment. Declarations shall be deemed as received as soon as the can be retrieved or accessed under reasonable circumstances (that applies, in particular and without limitation, with respect to e-mail communication).
7.2 If you have not duly complied with your notification duties pursuant to Clause 6 hereof, declarations shall also be deemed as received (even if you have not factually received such declarations) provided that emporia sends a declaration to the last valid address, e-mail address or phone number as provided as personal data on the platform.
8.1 If not explicitly authorised by emporia in written form, you are not entitled to let, sale or otherwise provide our services to third parties for commercial reasons.
8.2 You are obliged not to misuse our services. In particular, you shall not use our services for (or in order to)
(a) commit fraud or other criminal acts;
(b) send unsolicited information via e-mail or SMS, in particular (without limitation) for commercial information (‘spamming’);
(c) sending or saving any content protected by intellectual property rights without having sufficient rights therefore;
(d) sending or saving prohibited content; that means content that violates legal prohibitions or is contrary to public policy and includes (without limitation) defamatory, offensive, racist, hate speech, violence-glorifying, national-socialist or other politically extreme or pornographic content;
(e) transferring messages that are contrary to public order and security or public policy or infringed applicable law;
(f) harassing or frightening or other users;
(g) infringing confidentiality duties under applicable law or international treaties;
(h) trying to gain unauthorised access to other computer systems or mobile phones (such as hacking).
8.3 In case of any violation of the provisions of this Clause 8, emporia is entitled to cancel the provision of services and/or terminate the contractual relationship with immediate effect.
8.4 In case of any violation of this Clause 8 with respect to third parties, you shall be solely liable towards these third-parties and shall fully indemnify (and hold harmless) emporia for any claims such third-parties may rise against emporia in court or out-of-court. You are furthermore obliged to reimburse any damages occurred by emporia as a result of any violation of this Clause 8.
9. Purchase of Services
9.1 The platform can emporiaME can be used for free. Emporia may however provide services that are subject to fees via the platform in the future.
9.2 In case of any default of payment, emporia may charge interest. The interest rate shall be 12 per cent per anno, but shall not be lower than 3 per cent above the base rate as published by the Austrian National Bank. Furthermore, emporia is entitled to charge any costs reasonably incurred for the purpose of an expedient debt collection, including any dunning, collection or legal fees.
9.3 In case of doubts, emporia shall count your payments against the most mature debt.
10. Liability of emporia
10.1 Except for personal injuries, Emporia is only liable to consumers in case of intentional damages or gross negligence.
10.2 Entrepreneurs: With respect to entrepreneurs (within the meaning of the Austrian Consumer Protection Act), emporia shall not be liable for any loss of profit, loss of data, consequential damage, or damages incurred by third parties. Any further liability shall be limited for each particular damaging event, namely to € 5,000 for each aggrieved party and to € 500,000 for the aggrieved parties as a whole, whereas any liability towards individual aggrieved parties shall be reduced accordingly if the damage as whole (with respect to a particular damaging event) exceeds € 500,000.
11. Your Liability
11.1 In case, third parties gain unauthorised access to your account on the platform emporiaME (e.g. as a result of you having lost your access codes) and use the services of emporia, you shall be liable for any fee claims of emporia or third parties, if the access could be gained as a result of your fault.
12. Data Protection
12.1 Please refer to the data privacy statement for further information about how emporia protects your personal data.
12.2 Consumer: You hereby declare that any information or declaration transferred to the platform is accurate and true, and (if you are not exclusively using the registered phones by yourself) that you have fully brought the data privacy statement to the attention of every single user of a registered phone and that you have procured that every single user of a registered phone has fully understood the data privacy statement.
Your furthermore represent and warrant that any declarations of users of registered phones, which you already have delivered, or will deliver in the future, as an envoy for the user of the registered phone, are factually identical with the declaration made by the user himself/herself. You will inform emporia without delay, if a user of a registered phone brings to your attention (by any means) that he or she does no longer wish his or her personal data being processed by emporia. You are liable towards emporia for these representations and warranties and will indemnify (and hold harmless) emporia in case of any infringements.
12.3 Entrepreneurs: You hereby declare that any information or declaration transferred to the platform is accurate and true, and have (if you are not exclusively using the registered phones by yourself) that you fully brought the data privacy statement to the attention of every single user of a registered phone (irrespective of whether such user is an employee, customer, client or other person) and that you have procured that every single user of a registered phone has fully understood the data privacy statement.
Your furthermore represent and warrant that any declarations of users of registered phones, which you already have delivered, or will deliver in the future, as an envoy for the user of the registered phone, are factually identical with the declaration made by the user himself/herself. You will inform emporia without delay, if a user of a registered phone brings to your attention (by any means) that he or she does no longer wish his or her personal data being processed by emporia.
Furthermore, in case you as “Care Giver” (the person who uses the services and functionalities of the platform, such as remote maintenance, localisation or address book management, in the interest of another person) provide services to a “Care Receiver (the person, who shall be supported by Care Giver by means of the services and functionalities of the platform), you explicitly represent and warrant (i) that you have rights to take influence on the data processing by the platform, conduct remote maintenance of Care Receiver’s mobile phone and determine the geographic location of Care Receiver pursuant to a valid contract concluded with the Care Receiver, (ii) that you have a legally recognized interest on the conduction of these activities and (iii) that you have duly and diligently examined whether this legally recognized interest outweighs the interest of the Care Receiver in his or her privacy and his or her personality rights, that the conduction of these activities seems to be reasonable in circumstances and that you will, in any case, only determine the geographic location of any employees during their respective working hours.
Insofar Care Receivers are employees (or other persons under a service contract), you furthermore represent and warrant that you have obtained sufficient rights to determine geographical locations of employees (or other equally protected persons) pursuant to the applicable provisions of labour law, in particular the provisions of the laws on works constitution and that (if necessary) you have a respective collective bargaining agreement in effect. You are liable towards emporia for these representations and warranties and will indemnify (and hold harmless) emporia in case of any infringements.
13. Unilateral Amendments
13.2 You shall be informed (in written form) of the substantial content of any amendments not being exclusively beneficial for you at least one month before they become effective. You shall be notified of the point of time they become effective, as well as of right to terminate the contract before that point of time without costs. You shall be provided with the full text of such amendments upon request.
14. Assignment of Contract
14.1 Emporia shall be entitled to assign the contractual relationship between emporia and you as a whole to other company of the emporia group or to third parties. In this case, emporia will notify you by e-mail to e-mail address you provided; such e-mail shall indicate the assignment of contract.
14.2 You are not entitled to assign the contractual relationship between you and emporia to other individuals or entities without emporia’ s prior written consent.
15.1 If no mandatory provisions of law provide otherwise, every contractual relationship with emporia shall be governed by Austrian law, without giving effect to its conflict of law rules or the Convention on the International Sale of Goods.
15.2 Place of performance shall be Linz, Province of Upper Austria. The courts of Linz shall have jurisdiction.
Consumer: For any claims against consumers (within in the meaning of the Austrian Consumer Protection Act) that have their domicile or ordinary residence in Austria or are employed in Austria, the courts of the consumer’s domicile, ordinary residence or place of employment shall have jurisdiction.
15.3 If any provisions of these terms of usage are (or shall become) invalid or ineffective, the other provisions remain valid and effective.