General Terms and Conditions

GTC

General Terms and Conditions (GTC)
of the website ghostly.chat
The contract language is German.
(hereinafter referred to as 'Provider' for short)

valid from Sunday 22.01.2023

1. General

The object of the provider includes data processing and computer services and information technology.

2. Valuation

2.1 The General Terms and Conditions shall apply to all agreements concluded between Provider and Customer (Provider and Customer hereinafter the „Parties“) and shall govern the provision and performance of all current and future services and deliveries between them.

2.2 The Supplier shall deliver or perform exclusively in accordance with these GTC; any existing terms and conditions of delivery, purchase or contract of the Customer shall not apply. A special objection of the supplier against such terms of delivery, purchase or contract is not required.

3. Conclusion of the Contract

The respective deliveries and services to be provided shall be set forth in a separate contract („Contract“). This contract must be in writing to be legally effective.

Written offers of the provider remain valid for 14 days and must be accepted by the customer in writing. An electronic conclusion of contract by e-mail also satisfies the agreed written form requirement.

4. Scope of Services and Performance/Acceptance

4.1 The detailed elaboration of the requirements definition including the preparation of a specification shall be carried out either by the Provider or by the Customer. If the preparation is carried out by the Provider, the Customer shall provide all documents and information required for this purpose. The customer shall check the requirements definition or the requirements specification for correctness and completeness and confirm this in writing.

Subsequent changes must be confirmed in writing and will be charged separately.

4.2 The Customer shall accept the software no later than 4 weeks after delivery/service provision. Acceptance shall take place on the basis of the specifications approved by the customer and shall be confirmed by the customer in writing in an acceptance report. Minor and/or insignificant defects shall not entitle the customer to refuse acceptance.

4.3 If the Customer does not perform an acceptance during the period specified in Section 4.2 or if the Software is actually used, it shall be deemed accepted in any case upon expiration of this period or upon commissioning.

4.4 The Provider shall be responsible for the selection of the employees providing the contractual services; the Provider expressly reserves the right to call in third parties for this purpose.

5. Fee and Terms of Payment

5.1 Unless otherwise agreed in the order/contract, the prices stated in the offer/contract or in the order form shall apply. The prices are based on the costs at the time of the initial price quotation. Should the costs of labor and materials or duties payable by the supplier increase by the time of delivery, the supplier shall be entitled to adjust the prices accordingly and charge them to the customer as of the beginning of the month following the increase.

5.2 For services rendered as an advertising agency and the compensation for the rights of use, the Provider shall receive a fee in the amount of 15% of the advertising budget handled through it.

5.3 The Provider shall be entitled to an appropriate fee for participation in presentations, which shall at least cover its entire personnel and material expenses for the presentation as well as the costs of all third-party services. If the Provider does not receive an order after the presentation, all services of the Provider, in particular the presentation documents and their content, shall remain its property. The customer is not entitled to use these further - in whatever form; the documents are rather to be returned to the provider immediately.

5.4 If the ideas and concepts for the solution of communication tasks submitted in the course of a presentation are not utilized in the advertising material designed by the Provider, the Provider shall be entitled to use the ideas and concepts presented elsewhere for third parties.

5.5 The transfer of presentation documents to third parties as well as their publication, reproduction, distribution or other dissemination is not permitted without the express consent of the Provider.[2]

5.6 The software shall be provided against a one-time payment or against regularly due user fees.

5.7 If the usage fees are to be calculated on a staggered basis, they shall be based on the usage classes. The usage class depends on the number of installed screen workstations, whereby these are specified in the respective contract.

5.8 The Customer shall notify the Provider immediately of any change to a higher usage class. At the time of the change, the usage fee of the higher usage class shall become due.

5.9 Upon conclusion of the contract, the customer shall pay a down payment of 40% of the agreed fee. Subsequently, the Provider shall be entitled to issue a monthly invoice depending on the progress of the project and to issue partial invoices, which shall be due within 14 days after the invoice date without deduction and free of charges.

5.10 For standard software and hardware, the list prices valid on the day of delivery shall apply; other services such as programming, training, consulting, etc. shall be charged according to the actual time spent, at the hourly rate valid on the day of the services.

5.11 Costs for data carriers, travel, daily and overnight allowances shall be invoiced separately according to actual expenditure. Travel times shall be deemed to be working time.

5.12 If, at the request of the Customer or due to special circumstances which make this necessary, a service is provided outside normal working hours, the additional costs incurred as a result shall be invoiced separately to the Customer.

5.13 All prices stated are exclusive of the statutory value added tax. All invoices are due for payment within 14 days from the invoice date without deduction and free of charges.

5.14 If the Customer is in default with its payments, the Provider shall be entitled to charge default interest in the amount of 8% p.a. above the respective base interest rate as well as the costs of a reminder letter from a lawyer and/or any collection fees incurred.

5.15 All fees, taxes, levies or other costs or expenses incurred in connection with the establishment of the contract shall be borne by the customer.

6. Reservation of Ownership

6.1 Until payment has been made in full, the contractual deliveries/services shall remain the property of the Provider; this shall also apply if the software (or other services) have been handed over on data carriers or transmitted online. Insofar as only rights of use to software have been granted, this provision shall apply mutatis mutandis.

6.2 The Customer shall be entitled to adapt the services/goods delivered under retention of title to its needs as long as it is not in default of payment and does not interfere with intellectual or industrial property rights of the Provider or third parties.

6.3 Pledges and transfers of ownership by way of security are not permitted if the retention of title is still valid.

6.4 In the event of executive seizures by third parties, the Customer shall draw attention to the property of the Provider and shall be obliged to notify the Provider thereof without delay and to indemnify and hold it harmless with regard to all claims and costs resulting therefrom.

6.5 In the event of default in payment, the Supplier shall be entitled to reclaim the goods delivered under retention of title at the Customer's expense or, if applicable, to demand the assignment of a claim for return of the Customer against a third party.

7. Copyrights and Ancillary Copyrights

7.1 The Provider shall remain the owner of all copyrights and ancillary copyrights to the software/database including the associated documents. These copyrighted services include all services of the Provider, in particular those concerning presentations, such as ideas, sketches, preliminary drafts, scribbles, final drawings, concepts, negatives, slides. Individual parts from the aforementioned services also remain the property of the provider, as do the individual workpieces and design originals, and can be reclaimed by the provider at any time - in particular upon termination of the contract. This also applies if the customer modifies, processes or combines the software with other software with the consent of the provider.

7.2 After payment of the agreed remuneration, the Customer shall receive the non-exclusive and non-transferable right to use the Deliveries/Services provided for the agreed purpose and to the agreed extent of use. If the subject of the contract is a specified software, the customer shall have the right to use it exclusively at the agreed installation site and to the extent of the purchased number of licenses for simultaneous use on several workstations.

7.3 Existing markings, copyright notices or proprietary notices of the Provider may not be removed or changed by the Customer. If copies are permissibly made, these must also be made or provided with the above-mentioned markings.

7.4 The Provider shall be entitled to make any necessary changes to the Software due to claims of third party rights at the Customer's premises at its own expense. The Customer undertakes to inform the Provider of any claim made against it for infringement of copyrights or industrial property rights.

7.5 The Software is intended for personal use only.

7.6 The source code produced during the development of the Software shall remain the property of the Provider. This source code also constitutes a copyrighted work within the meaning of copyright law. The Customer has no right of use or exploitation of the source code whatsoever. The source code serves exclusively for the maintenance and further development of the contractual software, which is the exclusive responsibility of the provider.

7.7 The Customer shall not be entitled to disclose the source code to third parties for any reason whatsoever.

8. Warranty

8.1 For material defects existing at the time of acceptance by the Customer, the Provider shall provide warranty exclusively in accordance with this provision, item 8

8.2 The Supplier warrants only the properties of the goods/services provided as described by the Supplier. The Supplier shall not provide any warranty for properties not expressly promised to the Customer in writing. The Supplier does not provide any warranty for certain expectations of the Customer with regard to the item/service provided that are not confirmed in writing by the Supplier as a property of the item/service.

8.3 If the item/service handed over by the Provider contains items/services of third parties, the Provider shall, in the event of their defectiveness, use itself for the assertion of a warranty by the third party and pass on any benefits resulting therefrom to the Customer, insofar as this is possible.

8.4 Upon acceptance, the Customer shall immediately inspect the goods and services handed over by the Provider to ensure that they are free of defects. Any defect discovered by Customer during such inspection shall be notified to Provider in writing within two (2) days (receipt by Provider) („Notice of Defect“). In the notice of defect, the Customer shall specify the order number and the subject matter of the order, name the item and/or service which in its opinion was defective upon acceptance and describe the defect in detail.

8.5 If the Customer does not comply with its obligation to give notice of defects pursuant to this provision and/or does not send a notice of defects in due time, the Provider shall be released from its warranty obligation towards the Customer.

8.6 Defects which cannot be discovered by the Customer upon inspection of the item/service despite reasonable examinations, test runs, etc. immediately after acceptance („hidden defect“) shall be notified by the Customer to the Provider within two (2) days after discovery by sending a notice of defect. In this notification of defect, the Customer shall also explain and substantiate that and why it is a hidden defect which it could not detect in the course of the inspection of the item/service immediately following acceptance.

8.7 If the Provider detects a defect in the item/service on the basis of a notification of defect sent in good time, the Provider shall provide warranty as follows: The Provider shall be entitled to either improve the defective item/service within a reasonable period not exceeding 4 weeks or to replace it with a defect-free item/service (e.g. by installing new software). In doing so, the Provider shall take the Customer's needs into account as far as possible, but the Customer shall not be entitled to demand that the Provider improve or replace the defective item/service.

8.8 If the improvement of the item/service or its replacement is not possible within a reasonable period of time, is impractical or involves a disproportionately high effort for and in the opinion of the Supplier, or if the defect cannot be remedied, the Supplier shall be entitled either to reduce the price accordingly or to withdraw from the contract with rescission.

8.9 In the event that a part of the performance is defective, the Supplier shall be entitled to effect a partial conversion only with regard to the defective item/service, unless the defectiveness of the item/service renders the entire item/service handed over by the Supplier unusable for the Customer.

8.10 The Customer shall support the Provider in making improvements and/or a replacement to the best of its ability and shall in particular, without being limited thereto, grant the Provider access to the defective goods/services during normal business hours and, insofar as its own cooperation is required due to the circumstances, ensure this accordingly.

8.11 The warranty period shall be 12 months from acceptance of the delivery/service and shall commence on the day of acceptance by the customer. The warranty period shall also end for hidden defects in accordance with this provision. Warranty claims by the customer are therefore excluded after expiry of the warranty period.

8.12 The warranty period shall not be extended for items/services that have already been replaced or improved by the Supplier under warranty or as a gesture of goodwill; the period shall also be calculated here on the basis of the date of acceptance of the item/service handed over by the Supplier.

8.13 If defects cannot be determined during an inspection, the Customer shall bear the costs of this inspection. This shall also apply if the defect is due to defective operation or to malfunctions for which the Provider is not responsible.

8.14 In the event of a modification of products/the software or parts of the product/the software by the Customer or third parties, no warranty shall be assumed by the Provider. The Provider does not provide any warranty for errors, malfunctions or damage resulting from improper operation, the use of unsuitable operating materials or unusual and/or abnormal operating conditions.

8.15 This provision conclusively regulates the warranty of the Provider towards the Customer. The Customer shall therefore only be entitled to assert warranty claims against the Provider within the scope of and in accordance with this provision. Further claims or rights of the customer are excluded.

9. Liability

9.1 The liability of the Provider, irrespective of the legal grounds, shall be limited in total to 50% of the order amount („Limitation of Liability“). The Customer shall not be entitled to claim damages in excess thereof.

9.2 Regardless of the legal grounds, the Provider shall only be liable for intent and gross negligence. For slight negligence, the liability of the provider is excluded.

9.3 The Provider shall be liable for personal injury within the scope of the statutory provisions. For indirect damages, consequential damages, consequential harm caused by a defect, loss of data, further damages, loss of profit, loss of business prospects, pure financial losses, savings not achieved, loss of interest and damages from claims of third parties, the liability of the provider is excluded. In particular, any claims in case of failure of the customer's server are excluded.

99.4 In the event of non-compliance by the Customer with conditions and regulations for assembly, commissioning and/or use (such as contained in the operating instructions) of the item/service handed over by the Provider or non-compliance with any official approval conditions, the Provider shall not be liable to the Customer.

9.5 The Customer shall use its best efforts to prevent any damage occurring by taking reasonable measures or, if prevention is not possible, to mitigate such damage. In the event of damage, the Customer shall immediately inform the Provider in writing about the type and amount of the damage and the measures taken by the Provider („Duty to Inform“).

9.6 If the Customer fails to comply with its duty to inform without undue delay, the Provider's liability shall be [excluded]/[the Provider's liability shall be reduced to10% of the amount stated in the first paragraph of this item (Limitation of Liability)].

9.7 The Provider operates AI based software solutions which are made available to the Customer. The Provider assumes no liability for the „actions“ of these AI-based software solutions. Should the Customer use the services of the Provider's AI based software solutions, the Customer and not the Provider shall be liable for the results.

10. Free Signing

10.1 The Provider shall not assume any responsibility for networks or network and other telecommunication services not operated, created or maintained by it up to an interface defined in the order/contract, which are physically or logically upstream of the services hereunder.

10.2 The Provider shall not be obligated to check the content or logical content of data provided by the Customer or third parties for processing, storage or transport. If the Provider suffers damage or additional expenses due to the fact that the data provided to it by the Customer contain illegal content or are not in a condition that makes them suitable for the provision of the commissioned service, the Customer shall bear these costs.

10.3 If the Provider provides client software, its functioning shall only be guaranteed under the contractually specified framework conditions, but in particular only under the condition of a consistent operating environment and identity, of the network services preceding the technical environment at the time of conclusion of the contract.

10.4 The Provider shall not be liable for damages arising from the fact that third parties whose data it has taken over for processing, storage or forwarding, or other persons with whom it has no contractual relationship, act in an abusive manner, provided that it was unable to prevent such abuse within the scope of the state of the art and the standards customary in the industry.

11. Obligations of the Customer

11.1 The Customer shall treat all information subject to the contract, documents belonging to the product/software as well as methods („Confidential Information“) as confidential. This obligation already exists during the contract negotiations and extends beyond the duration of the contract between the Provider and the Customer. The Customer shall also impose this obligation of confidentiality on all of its employees.

11.2 The Customer shall be liable without limitation for breach of contractual obligations; this shall also apply to the use of copies made in breach of the contract or their multiple use or transfer to third parties.

11.3 The Customer shall cooperate in a timely manner in the provision of services by the Provider by preparing a detailed requirements profile and, in particular, by providing test data and other information and tools necessary for the creation of the software. The Provider shall inform the Customer of these duties to cooperate in due time.

11.4 The parties undertake not to entice away any employees from each other or to have them enticed away by third parties for a period of 6 months after termination of the contract. A contractual penalty of EUR 50,000 shall be agreed for the violation of this provision. The judicial right of moderation is excluded.

12. Term and Termination of the Contract

12.1 The term of the contract shall be specified in the respective order or contract itself. The Provider shall be entitled to withdraw from the contract in the event of default of payment by the Customer after a grace period of 2 weeks has expired without success.

12.2 The Provider shall be entitled to withdraw from the contract immediately without setting a grace period

• if an application for the opening of insolvency proceedings against the customer's assets has been filed with the court, insolvency proceedings (or reorganization proceedings) have already been opened, or the opening has not been opened or has been rejected for lack of sufficient assets;
• if there are doubts about the customer's ability to pay and the customer does not make an appropriate advance payment after being requested to do so by the provider, nor does the customer provide suitable security before delivery or provision of the service;
• if changes occur in the customer's ownership structure, or if the credit rating deteriorates due to changes in the customer's shareholders or asset structure; finally
• if the Customer abuses the authority granted to him/her to use the Provider's facilities for committing illegal acts or harming third parties.

12.3 For the above reasons, rescission may also be declared with respect to an outstanding part of the delivery or service.

12.4 Notwithstanding the Provider's claims for damages, in the event of withdrawal, services or partial services already provided shall be invoiced and paid for in accordance with the contract. This shall also apply insofar as the deliveries or services have not yet been taken over by the Customer, as well as for preparatory actions performed by the Provider. Instead, the supplier shall also be entitled to demand the return of goods/services already delivered.

12.5 If the Customer withdraws from the contract for reasons for which the Provider is not responsible, a contractual penalty in the amount of EUR 15,000 shall be deemed to have been agreed, unless otherwise stipulated in the contract. The provider reserves the right to claim any damages exceeding this amount. The judicial right of moderation is excluded.

12.6 In the event of justified extraordinary termination by the Provider, the Provider shall be entitled to reimbursement of those expenses incurred by it with regard to the establishment and fulfillment of the contract/order (e.g., due to the purchase of equipment), and which have not yet been compensated by the fees paid by the Customer during the term of the contract, to that extent.

13. Right

All disputes between the parties shall be governed by Austrian law, excluding the conflict of law rules and excluding the UN Convention on Contracts for the International Sale of Goods.

14. Jurisdication

Subject to mandatory provisions of the Consumer Protection Act, Graz is agreed as the place of jurisdiction for all disputes.

15. Written Form

All notifications and declarations concerning the contractual relationship between the parties shall only be valid if made in writing. Verbal collateral agreements between the parties have not been made. Changes or additions to all agreements between the parties must also be made in writing. This also applies to any waiver of this written form requirement.

All written notices or declarations to the Provider shall be addressed to until revoked:

Christian Höller

Kindermanngasse 32/4, 8020, Graz, Österreich

team@stdio.one

16. Severability Clause

Ineffective, invalid or unenforceable provisions of the contract and these GTC between the parties shall not affect the effectiveness, validity or enforceability of the remaining provisions. Ineffective, invalid or unenforceable provisions shall be replaced by provisions that most closely reflect the intent of this Agreement and these GTC.