Terms of Use - Direct Sales
02.02.2024
These Terms of Use form the basis of the contract concluded between Newsadoo GmbH, Lastenstraße 36, 4020 Linz, FN 464128t, hereinafter referred to as "NEWSADOO", and the Client for the use of the Software as a Service Solution (SaaS) "Newsadoo", hereinafter referred to as the "Software".
Newsadoo is a browser-based, cross-platform software for the fully automatic creation of digital topic newspapers for consumers and businesses. Using numerous external sources, Newsadoo serves the intelligent and digital, automatic compilation and provision of topic newspapers on websites, apps or other applications.
1 Scope of Terms of Use & Definitions
1.1. All services provided by NEWSADOO in connection with the Software are exclusively based on these Terms of Use.
1.2. Client: The Client is a company or public institution that wishes to provide its (internal or external) consumers with a digital topic newspaper. The Client is the direct contractual partner of NEWSADOO.
1.3. Consumer: The Consumer is a visitor of the information services operated by the Client, in which the contractual offers of Newsadoo are integrated. They consume a digital topic newspaper made available to them by the Client and thus receive tailored news from the Client. The Consumer undertakes to comply with the rights and obligations formulated in these Terms of Use to the same extent as the Client.
1.4. User: Clients and Consumers together constitute the Users of the Software. Insofar as provisions of these Terms of Use equally concern both Consumers and the Client, they are referred to as "Users".
1.5. Account: Account of the Client or for the Client, which is given the opportunity to independently or via Newsadoo Support make settings for its Consumers.
2 Contract Conclusion, Contract Duration & Pricing Model
2.1. Acceptance of these Terms of Use is required for the use of the Software. After the contract has been concluded with NEWSADOO, the Client receives access and integration instructions for the topic newspapers attributable to and created for them, enabling their use.
2.2. The paid contractual relationship may be terminated by either party at the end of any calendar year, subject to a twelve-month notice period.
2.3. NEWSADOO reserves the right to terminate the contract prematurely during the agreed contract term for good cause – without setting a grace period. Good cause is considered in particular: payment default, opening of insolvency proceedings or rejection of a related application due to insufficient assets, distribution of content damaging to NEWSADOO's business, misuse of the service and similar, as well as serious breach of contractual obligations.
2.4. After termination of the contractual relationship, Newsadoo retains the data stored in the Client's topic newspapers and accounts for a further two calendar months, provided it is not personal data. After this two-month period, the data contained therein may be irrevocably deleted by Newsadoo.
2.5. Pricing Model: NEWSADOO's pricing model is to be individually agreed between the Client and Newsadoo.
2.6. The fee agreed with NEWSADOO is invoiced annually in advance by NEWSADOO and settled by the Client in accordance with the payment terms.
2.7. Invoicing is in any case electronic; the Client waives the issuance of a paper invoice.
2.8. Claims of NEWSADOO may only be offset against legally established or expressly acknowledged claims.
3 Rights and Obligations of the Client
3.1. The Client is entitled to distribute the topic newspapers made available pursuant to 2.2. exclusively using the technical tools provided by NEWSADOO and to make them available to their Consumers (App, Embedding, etc.).
3.2. The Client may only make the Software or the topic newspapers generated by it available to legally competent legal entities or natural persons.
3.3. NEWSADOO is entitled to verify the identity of the Client. NEWSADOO is entitled to suspend the Client's Account until the verification of their data is completed.
3.4. The Client is obligated to pass on to each Consumer the rights and obligations of these Terms of Use required for the use of the Software and shall hold NEWSADOO harmless for the subjection of Consumers to these Terms of Use.
3.5. The Client declares that all information about themselves and their company is truthful and correct. They are obligated to immediately notify NEWSADOO of any changes to data (especially payment data).
3.6. The Client undertakes, subject to other liability, to treat access data for Accounts at Newsadoo confidentially and carefully and under no circumstances to pass them on to third parties. The Client must inform persons to whom they provide access data about the obligations arising from these Terms of Use.
3.7. The Client undertakes to log out of the Software with their Accounts after each use and to log in again before each use to prevent misuse of their Accounts in case of loss or theft.
3.8. The Client declares to hold NEWSADOO harmless for all consequences and disadvantages resulting from loss, theft or disclosure of login data or loss, theft or disclosure of their device while logged into the Software.
3.9. The Client undertakes to regularly, but at least once a week, create backup copies of the data and information stored in the Software. NEWSADOO is not liable for adverse consequences and damages resulting from data loss that could have been prevented or minimized by backup copies.
3.10. The Client undertakes to grant NEWSADOO access to their Accounts upon request to carry out improvements, maintenance work and other necessary changes/updates. This obligation includes the disclosure of login data and passwords for the Client's Account if necessary.
4 Obligations of the User
4.1. Unless otherwise agreed, NEWSADOO exclusively provides the cloud-based Software-as-a-Service solution. The User is responsible for creating the technical, personnel and organizational prerequisites necessary for using this Software, such as a suitable system environment or a permanent internet connection.
4.2. NEWSADOO reserves the right to modify or improve the Software at any time, insofar as this does not result in impairment of use for Users. This may result in visual, technical, content-related or other changes. Users only have a claim for improvement or modification insofar as the changes impair previous use.
4.3. The User undertakes not to use the Software in an abusive or unlawful manner. Users hold NEWSADOO and all its vicarious agents harmless for all adverse consequences arising from unlawful, abusive or otherwise improper use of the Software and related services. This includes in particular damages arising from incorrect provision of data and facts, or from violation of personal rights, copyright, data protection or other regulations by Users.
5 Payment Default, Reminder and Suspension
5.1. In case of payment default, default interest of 8% per annum above the base rate is agreed.
5.2. In case of non-payment despite a reminder, NEWSADOO may temporarily suspend the provision of services and access to the Software. Once the arrears have been fully settled by the Client, NEWSADOO must reactivate access. NEWSADOO's right to terminate the contract in case of payment default and NEWSADOO's ongoing entitlement to remuneration remain unaffected. Suspension of service due to payment default does not entitle the Client to early termination of the contract.
5.3. NEWSADOO is entitled to refuse the provision of services in whole or in part temporarily (suspension) if there is a well-founded suspicion that the authorized person, in using the service, is violating laws or essential contractual obligations, namely those that serve to ensure the functionality of even a single service or the protection of third parties, or is taking actions that entitle NEWSADOO to immediate contract termination under these terms.
5.4. A well-founded suspicion of illegality and/or infringement exists in particular when courts, authorities and/or other third parties notify NEWSADOO thereof. NEWSADOO must immediately notify the User of the suspension and the reason for it. The suspension must be lifted as soon as the suspicion is dispelled and the conditions for it no longer exist.
5.5. The User has no claims arising from a justified suspension of services.
6 Usage Rights & Project Data
6.1. The Software is an online-based Software as a Service solution accessible via the NEWSADOO web application. The Software is not transferred to Users. NEWSADOO merely grants the Client a simple right to use the Software limited to the term of the contract, which may only be sublicensed through a separate agreement.
6.2. Users are not permitted to use or allow the use of the Software or parts thereof beyond the expressly granted rights, to distribute, sell or otherwise transfer or make usable.
6.3. In the course of using the Software, each User has the option to select sources for their own topic newspaper and to commission Newsadoo to add additional sources. NEWSADOO is not obligated to review, log or evaluate these sources. The Client holds NEWSADOO harmless for all adverse consequences and damages resulting from the selection and integration of sources whose contributions lead to legitimate claims and demands against NEWSADOO, the Client or User.
6.4. NEWSADOO is obligated, at the User's request, to delete any data uploaded by them in whole or in part, insofar as no mandatory legal claim prevents this and NEWSADOO has a statutory retention obligation or the data is needed to assert claims or defend against unjustified demands. After termination of the contractual relationship between NEWSADOO and the Client, the data entered into the Software will be deleted insofar as no contractual or statutory retention obligations prevent this or the data may be needed to assert claims or defend against unjustified demands.
6.5. NEWSADOO acts as a processor within the meaning of Art. 28 GDPR vis-à-vis the Client. In the course of the contract conclusion, NEWSADOO provides the Client with a self-commitment declaration.
7 Availability
7.1. NEWSADOO undertakes to make the services to be provided in accordance with the agreement available without restriction. In this context, NEWSADOO guarantees 97.5% availability of the Software on a calendar year average. However, a completely error-free or uninterrupted system cannot be guaranteed for technical reasons alone. Cases of force majeure and periods of interruption of usability due to scheduled maintenance and updating of the Software are not to be taken into account when calculating the contractually owed availability.
7.2. Scheduled measures (maintenance work, further development, etc.) will be announced to Users by NEWSADOO as soon as possible, but at least 24 hours in advance.
8 Liability
8.1. Compensation for damages – excluding personal injury – is limited for each damage-causing event to the coverage amount of NEWSADOO's liability insurance actually available for the respective case. If no liability insurance coverage exists, compensation for damages for each damage-causing event is limited to a maximum amount of € 10,000.00.
8.2. This maximum amount covers all claims against NEWSADOO due to defective service provision and/or other breach of contractual obligations, including in particular claims for damages and price reduction.
8.3. Unless otherwise regulated by special agreement or law, NEWSADOO's liability for contractual or statutory claims is otherwise excluded, in particular for indirect damages and consequential damages, consequential defect damages, property damages, lost profits, unrealized savings or profits, interest losses, lack of economic success, positive breach of contract, fault in contract conclusion, error and for damages from third-party claims, insofar as the Client does not prove intent or gross negligence on the part of NEWSADOO.
8.4. Liability for adverse consequences and damages caused by NEWSADOO through slight negligence is excluded, insofar as it does not concern personal injury. Furthermore, liability for adverse consequences or damages that are not typically foreseeable when using the Software is excluded.
8.5. NEWSADOO is not liable for adverse consequences or damages suffered by Users insofar as projects managed using the Software cannot be implemented or cannot be implemented in time due to loss of usability, technical defects, data loss, unauthorized access by third parties or other reasons related to the Software.
8.6. The Software contains applications and content of third parties or links to third-party content. NEWSADOO is not liable for this content or the technical functionality of the content, interfaces or applications provided in this regard. Insofar as links to third-party websites or applications are established, the User acknowledges that these are operated by third parties and NEWSADOO has no influence on the content of these pages and the information published there.
8.7. NEWSADOO assumes no liability for merely visual deviations that do not impair the proper use of the Software.
8.8. Claims for damages must be asserted in court within 6 months of becoming aware of the damage and the party causing it, subject to forfeiture.
8.9. The limitations or exclusions of liability also cover claims against employees, bodies, representatives and vicarious agents of NEWSADOO for damages they cause to the User.
9 Copyright & Confidentiality
9.1. NEWSADOO reserves all rights, in particular trademark and copyright rights, to the entire content of the website, in particular to trademarks, logos, texts, graphics, photographs, layout and music, insofar as these belong to NEWSADOO. Unless use is mandatorily permitted by law, any use of content of this website beyond the contractual service obligations, in particular storage in databases, reproduction, distribution or processing, requires the express written consent of NEWSADOO.
9.2. The User is obligated to keep confidential all confidential information that has become known in the course of using the Software and not to disclose it to third parties. This includes in particular information about the functionality of the Software and the scope of services offered by NEWSADOO in this context.
10 Amendment of Terms of Use
10.1. NEWSADOO is entitled to amend these Terms of Use. If not exclusively, then in particular also to incorporate changed legal regulations or to include new/changed services.
10.2. The User will be informed in text form no later than two months before the proposed date of entry into force of the new Terms of Use, with reference to the affected provisions, about planned changes. The changes are deemed approved by the User if they do not object in writing to the changes before the proposed date of entry into force. NEWSADOO will also draw the User's attention to this in the information about the changes. The deadline for objection is only met if the objection is received by NEWSADOO within the deadline.
11 Non-Solicitation Clause
11.1. The Client is not entitled to solicit and/or employ employees or subcontractors of NEWSADOO during the contractual relationship and for twelve months thereafter. Employment by the Client is to be treated as equivalent to employment of the employee or subcontractor at a company affiliated under corporate law (e.g. parent, subsidiary or sister company).
11.2. For each violation of this solicitation and employment prohibition, the Client must pay NEWSADOO a fault-independent contractual penalty of € 20,000.00, even if it only remained an attempt. Even in the event of payment of the contractual penalty, NEWSADOO reserves the right to assert the injunctive relief resulting from this agreement as well as any claim for damages exceeding the contractual penalty.
12 Final Provisions
12.1. Austrian substantive law applies exclusively, with the applicability of the UN Convention on Contracts for the International Sale of Goods and international conflict of laws rules being excluded.
12.2. The place of performance and delivery is the registered office of NEWSADOO.
12.3. Should individual provisions of these Terms of Use be or become void, ineffective or contestable, the remaining provisions shall remain unaffected. These provisions shall be deemed replaced by valid and enforceable provisions that most closely achieve the intended economic purpose. This also applies in the case of any gaps in the contract.
12.4. For any disputes between the User and NEWSADOO, the exclusive jurisdiction of the court having subject matter jurisdiction at the place of performance is agreed.
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