1. scope of application / changes to the GTC
1.1 PERSENTIS GmbH, with its registered office in Salzburg, registered in the commercial register of the Salzburg Regional Court under FN 535049 m ("PERSENTIS") offers services in connection with the implementation, analysis and evaluation of surveys. The business relationship between PERSENTIS and the Customer (the "Customer" and each Customer together with PERSENTIS the "Contracting Parties") shall be governed exclusively by these GTC, in each case in the version valid at the time of conclusion of the contract.
1.2 These GTC are binding for all present and future business transactions with PERSENTIS, even if not expressly referred to repeatedly. PERSENTIS expressly rejects any deviating general terms and conditions of the customer. Deviations from these GTC, supplementary agreements, or any conflicting terms and conditions of the customer are only effective if PERSENTIS agrees to them in writing.
1.3 The provisions of these GTC may be amended by PERSENTIS at any time without giving reasons, and such amendments shall be announced on the respective website or by sending the text of the contract by e-mail (to the e-mail address last provided by the Customer) before they come into force. The changes are considered accepted if the Customer has been informed by PERSENTIS about the changes and does not object to them in writing by e-mail to email@example.com within 30 calendar days, starting from the day following the announcement, or, depending on which event occurs earlier, these GTC are explicitly accepted in the Customer's Customer Profile. In case of timely objection to the changes, the contract will be terminated with immediate effect.
2 Conclusion of contract / subject matter of contract
2.1 The customer can purchase service packages on the PERSENTIS website. Orders are binding for the customer by accepting the terms and conditions of the contract and the GTC in the context of an online booking. The contract is concluded by written confirmation of the order by PERSENTIS or by the actual provision of services, whichever occurs first. The contract is concluded for a period of 12 months and ends automatically upon expiry.
2.2 The scope of the services to be provided by PERSENTIS is defined in the service description of PERSENTIS. Within the given framework, PERSENTIS has the freedom to design its services.
2.3 PERSENTIS is entitled, at its sole discretion, to engage qualified third parties as subcontractors to perform an order. PERSENTIS shall be liable to the Customer for the conduct of subcontractors engaged by PERSENTIS as for its own. If the engagement of third parties is required at the Customer's request, such engagement shall be on behalf and for the account of the Customer and such third parties shall not be vicarious agents of PERSENTIS.
2.4 Unless expressly agreed as binding, stated performance deadlines are only approximate and non-binding. Binding deadlines must be recorded in writing and confirmed by PERSENTIS in writing.
2.5 If PERSENTIS is in default with the fulfillment of an order, the Customer may withdraw from the order after having granted PERSENTIS a reasonable grace period of at least 14 days in writing and this period has expired fruitlessly.
2.6 Force majeure, labor disputes, natural disasters, pandemics and epidemics, in particular due to COVID-19, as well as other circumstances beyond the control of PERSENTIS or reasons beyond the control of PERSENTIS that delay the fulfillment of an order, shall in no case be the responsibility of PERSENTIS, and in such cases PERSENTIS shall be entitled to reset the performance period originally agreed upon in the order.
3. cooperation obligations of the customer
3.1 The Customer undertakes to make available to PERSENTIS in a timely and complete manner all information and documents required for the performance of the order. The Customer shall inform PERSENTIS in a timely manner and on an ongoing basis of all circumstances that are of importance for the execution of the order. If, due to incorrect, incomplete or omitted information, the performance of the order is not in accordance with the order or if there is a delay, the Customer shall bear the expenses incurred thereby and shall compensate PERSENTIS for any financial loss incurred thereby. If the customer does not fulfill his obligations to cooperate on time or as agreed, binding agreements on deadlines lose their validity. Taking into account the availability of PERSENTIS, the contracting parties are obliged in such a case to agree on new appointments.
3.2 It is the responsibility of the customer to check the accuracy of the information provided for the execution of the order and to check the documents provided for any copyrights, trademarks or other rights of third parties. PERSENTIS is not obligated to verify the information. If a claim is made against PERSENTIS due to such an infringement, the customer shall indemnify and hold PERSENTIS harmless.
4. term / termination of the order
4.1 The services of PERSENTIS shall be provided for the term agreed in the order. If a term has not been agreed, the services will be provided for an indefinite period of time and both contracting parties waive their ordinary right of termination for a period of 3 months. After expiry of the waiver of termination, both contracting parties shall each be entitled to terminate the order in writing at any time with a notice period of 4 weeks. In all other cases, the ordinary termination rights of the contracting parties are excluded.
4.2 PERSENTIS is entitled to withdraw from an order with immediate effect (without notice) if there is good cause. Such good cause shall exist in particular, but not exclusively, if
- the execution of an order becomes impossible for reasons for which the customer is responsible, or is further delayed despite a written warning and the setting of a grace period of 14 days;
- there are justified concerns regarding the creditworthiness of the Customer, over whom insolvency proceedings have not been opened, and the Customer is not prepared to make advance payments or provide suitable security when requested to do so by PERSENTIS; or
- bankruptcy or insolvency proceedings are instituted against the Customer's assets or an application for the institution of such proceedings is dismissed for lack of assets to cover costs and this was not known to PersPERSENTISentis at the commencement of the contract; if such a circumstance exists, the Customer must inform PERSENTIS of this without being requested to do so prior to the conclusion of the contract.
4.3 In the event of its justified withdrawal from the contract, PERSENTIS retains the right to the entire agreed fee. This also applies in the event of unjustified withdrawal by the customer.
4.4 The customer is entitled to withdraw from an order for good cause. Such an important reason exists in particular if the maintenance of the contract is no longer reasonable for him because PERSENTIS continues to violate essential provisions from an order, despite written warning and setting of a grace period of at least 14 days for redress.
4.5 The services already rendered and costs already incurred by PERSENTIS up to this point must be paid in full by the customer even in the event of his justified withdrawal.
5. remuneration / terms of payment
5.1 The remuneration shall be based on the prices agreed in the order. All prices are exclusive of statutory value added tax and all other taxes and public charges that may be incurred. All services rendered by PERSENTIS within the scope of an order which are not expressly covered by the agreed fee shall be remunerated separately. All cash expenses, out-of-pocket expenses, travel expenses, etc. incurred by PERSENTIS in the course of the performance of the order shall be reimbursed to PERSENTIS by the Client upon presentation of an invoice.
5.2 PERSENTIS reserves the right to request a deposit of up to 50% of the total order value in advance after order confirmation, whereby the implementation of the order will only be started after receipt of this deposit. After completion of the order, the remaining part of the total order value is to be paid.
5.3 In the absence of a written agreement to the contrary, the fee is due for payment within 7 calendar days of receipt of the invoice and without deduction. In the event of default of payment, PERSENTIS is entitled to withhold the services from the order in whole or in part.
5.4 The Customer is not entitled to set off counterclaims against claims of PERSENTIS, unless such counterclaims have been determined by a court or acknowledged by PERSENTIS in writing.
6. default of payment of the customer
6.1 If the customer is in default of payment, PERSENTIS is entitled to charge interest on arrears from the respective due date at the rate of 9.2% p.a. above the base interest rate most recently announced by the European Central Bank.
6.2 In case of default of payment by the customer, PERSENTIS is entitled to call due all services and partial services already rendered to the customer. Furthermore, PERSENTIS is no longer obligated to provide further services until the outstanding amount is paid.
6.3 Furthermore, in the event of default of payment, the Customer undertakes to reimburse PERSENTIS for reminder and collection expenses, to the extent that they are necessary for appropriate legal prosecution. The assertion of further rights and claims remains unaffected.
7. copyrights and rights of use
7.1 All rights in connection with the work created by PERSENTIS under an Order (the "Order Work") shall remain with PERSENTIS. Client acknowledges that the sole copyright and all proprietary rights, in particular to methods, processes and procedural techniques, analyses, research concepts, proposals, graphical and tabular representations, and other know-how of PERSENTIS, are vested exclusively in PERSENTIS.
7.2 PERSENTIS is the sole owner of the material accrued during the execution of the order, in particular any data carriers and written documents, as well as the accrued data.
7.3 PERSENTIS grants the Customer an irrevocable, non-exclusive, non-transferable right of use for the agreed purpose and scope of use. If no agreements have been made regarding the specific purpose and scope of use of the commissioned work, the commissioned work is available to the customer exclusively for internal use. Any other use and/or exploitation of the commissioned work requires the written consent of PERSENTIS in return for payment.
7.4 The Customer shall only acquire the right of use pursuant to Section 7.1 upon full payment of the total fee plus any ancillary costs.
7.5 Ownership of the commissioned work, including content (photos, graphics, etc.) and branding elements (logos, claims, campaigns, etc.) created by PERSENTIS as part of a commission, remains with PERSENTIS. Any modification, adaptation, imitation, citation or publication of the commissioned work requires the written consent of PERSENTIS, effective for payment.
7.6 The rights granted to the Customer may be transferred to third parties or sublicensed only with the express prior written consent of PERSENTIS. PERSENTIS reserves the right to charge a separate fee for granting such consent.
7.7 The Client shall be liable to PERSENTIS for any unlawful use or exploitation of the commissioned work and shall indemnify and hold PERSENTIS harmless from any third party claims in this connection.
8. naming / reference permission / data use
8.1 PERSENTIS is entitled pursuant to § 20 UrhG (German Copyright Act) to affix its company name or a logo to any commissioned work, as well as to any advertising material for it, or any publication about it. Form and duration of the marking can be agreed upon in individual cases.
8.2 PERSENTIS is entitled to name the Customer as a reference and to use all (protected or unprotected) trademarks, logos and marks of the Customer in all media for its own advertising purposes.
8.3 Furthermore, PERSENTIS is entitled to use the results of the commissioned works, surveys and analyses for its basic research, in particular to create industry comparisons, in compliance with the provisions of data protection law. PERSENTIS shall ensure that such publications do not name the Customer or contain any other references that could lead to the conclusion that the Customer is the author.
9.1 The Customer acknowledges that PERSENTIS merely supports the Customer with its services in the Customer's decisions. However, these decisions are not made by PERSENTIS, but by Customer. PERSENTIS does not recommend or endorse any specific solution, strategy, decision or interpretation of the data provided or results in connection with the assignment. Furthermore, PERSENTIS excludes any implied or express recommendation of action. PERSENTIS is not liable for the fact that the data collected, evaluated and analyzed by it can be commercially exploited by the customer.
9.2 It shall be incumbent upon the customer to give written notice of any defects in the service immediately upon receipt of the work commissioned, at the latest within 7 days of recognizing the same, describing the defect, otherwise the service shall be deemed to have been approved and accepted, whereby the assertion of warranty claims and claims for damages as well as the right to challenge error on the grounds of defects shall be excluded. The presumption provision of § 924 ABGB is excluded.
9.3 In the event of a justified and timely notice of defect, the customer is primarily entitled to the right to improve the service. PERSENTIS shall remedy the defects within a reasonable period of time, whereby the Customer is obligated to enable all measures necessary for the examination and remedy of defects. If PERSENTIS culpably fails to make the improvement within a reasonable grace period, the Customer is entitled to a proportionate price reduction. Costs arising from the use of third parties despite PERSENTIS' readiness to remedy defects shall be borne by the Customer.
9.4 PERSENTIS is entitled to refuse to improve the performance if this is impossible or involves a disproportionately high effort for PERSENTIS. In this case, the customer is entitled to the statutory rights of conversion or reduction.
9.5 All claims for defects on the part of the customer shall become statute-barred within six months after receipt or acceptance of the commissioned work.
9.6 If it turns out during the rectification of defects that the customer is not entitled to improvement or new delivery, PERSENTIS is entitled to charge for the resulting expenses and the related services on the basis of the prices agreed in the order according to time and material.
10. liability / conditions subcontractors
10.1 To the extent permitted by law, PERSENTIS shall be liable, regardless of the legal reason, exclusively for damages caused by PERSENTIS due to gross negligence or intent. The liability of PERSENTIS for slight negligence is excluded to the extent permitted by law.
10.2 The liability of PERSENTIS is in any case limited to the amount of the respective order value.
10.3 PERSENTIS shall not be liable for any indirect damages, loss of profit, loss of interest, loss of savings, consequential and pecuniary damages or damages resulting from third party claims.
10.4 Likewise, no liability can be assumed for system failures, malfunctions, data loss and viruses, for example as a result of external attacks or for other reasons, unless such damage is caused by PERSENTIS intentionally or through gross negligence.
10.5 PERSENTIS does not vouch for the accuracy of content, especially if it has been provided or approved by the customer.
10.6 Claims for damages by the customer expire six months after knowledge of the damage and the damaging party, but no later than two years after the conduct of PERSENTIS giving rise to liability.
10.7 PERSENTIS shall only assume promises as to quality, warranties as to characteristics and guarantees if they are expressly designated as such in writing.
10.9 The Customer undertakes to fully indemnify and hold PERSENTIS harmless against claims from third parties.
10.10 The provisions of this clause 10 shall apply to all claims for damages and other claims of the customer, including pre-contractual and collateral claims, irrespective of the respective legal ground. Furthermore, the provisions of this clause 10 shall also apply in favor of employees and other vicarious agents of PERSENTIS.
The contracting parties undertake to treat the business and trade secrets of the respective other contracting party as well as information designated as confidential as confidential, unless disclosure is required by statutory provisions or official orders. The Contracting Parties shall further ensure that confidential information is only disclosed to persons who are either subject to a professional duty of confidentiality or who, as employees, representatives, agents, consultants or bodies of the Contracting Party concerned, require the confidential information for reasons of the proper management of the Contracting Party concerned. The Contracting Party concerned shall oblige the recipients to keep the Confidential Information confidential.
12 Applicable Law / Place of Jurisdiction / Place of Performance
12.1 All disputes arising from or in connection with these GTC and all legal relationships between PERSENTIS and its customers shall be governed exclusively by Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods and the conflict of law rules of private international law.
12.2 For all disputes arising from or in connection with these GTC and all legal relations between PERSENTIS and its customers, the contracting parties agree on the exclusive jurisdiction of the competent court in Salzburg.
12.3 The place of performance for deliveries and services of PERSENTIS is Salzburg, Austria.
13. final provisions
13.1 Each contracting party shall bear its own taxes, duties or fees arising from the contractual relationship. Any legal transaction fees shall be borne by the customer.
13.2 PERSENTIS is entitled to transfer the contractual relationship to a third party at any time. The Customer waives any right to object and already gives its consent to such a transfer or assignment of the rights and/or obligations arising from the contractual relationship.
13.3 Amendments, supplements and ancillary agreements to these GTC must be made in writing to be effective. This shall also apply to any agreement to deviate from this formal requirement. In case of contradictions between these GTC and deviating written agreements between the contracting parties, the provisions of the deviating agreements shall prevail.
13.4 Should individual provisions of these GTC be or become invalid, this shall not affect the remaining content of the GTC. The invalid provision shall be replaced by a valid provision that is legally valid and comes as close as possible to the economic intent of the contracting parties.
13.5 A "third party" in the sense of these GTC shall be any natural or legal person who is different from the Contracting Parties in the legal sense, even if legal and/or economic relations should exist with such a person.
Version - as of January 2024