LICENCE AGREEMENT for the use of the software "Timelapserobot“ by Filmspektakel GmbH
The Filmspektakel GmbH, located in Grüngasse 16/8, 1050 Vienna, Austria (hereinafter referred to as "COMPANY") offers the software “Timelapserobot”.
The licence agreement regulates the rental and use of the software "Timelapserobot" (hereinafter referred to as "SOFTWARE").
This licence agreement is addressed to persons who wish to use the services for professional purposes, i.e. entrepreneurs in the sense of section 1 Abs 1 number 1 KSchG („Austrian Customer Protection Act“) but also private customers (consumers in the sense of section 1 Abs 1 number 2 KSchG) (both together hereinafter referred to as "CUSTOMERS").
For the purpose of better readability, no gender-specific differentiation is made. This is done without any intention of discrimination. All genders are equally addressed.
2. Scope of application
All business relations between the COMPANY and the CUSTOMER in connection with the acquisition and use of the SOFTWARE are subject to this license agreement in the version applicable at the time of the conclusion of the transaction. Any deviating terms and conditions of the CUSTOMER shall not apply unless the COMPANY has agreed to their validity in writing.
The SOFTWARE contains proprietary software components and open source components (hereinafter "OSS components"). With regard to the OSS components, the respective licence conditions of the OSS licensors shall apply. The COMPANY is not the contractual partner of the CUSTOMER with regard to the OSS components and cannot be held liable for them. This licence agreement therefore relates exclusively to the proprietary software components. „Proprietary software“ refers to those elements which were developed by the COMPANY and whose source code is to be qualified as confidential.
Contractual, ordering and business language is English or German, depending on the choice of the CUSTOMER.
The license agreement is permanently available on the website.
3. Use of open source components
The SOFTWARE developed and provided by the COMPANY contains components that are licensed as Open Source Software. The OSS components may only be used under the respective OSS licence conditions. The OSS components are listed in Annex I. The source code of the OSS components (see „Readme“ in Annex I), the respective licence texts, any copyright notices and their disclaimers shall be made available to the CUSTOMER via link in Annex I.
Upon request by the CUSTOMER, the open source code can also be transmitted on a permanent data carrier (e.g. USB stick).
Attention: With regard to the OSS components used, the contractual partner of the CUSTOMER is not the COMPANY, but the respective open source licensor.
Attention: The COMPANY draws attention to the fact that risks are associated with the use of OSS components. As - demonstrative - examples are to be mentioned: Because the source code of the OSS components is public, it is susceptible to security incidents; furthermore, permanent maintenance and use of the OSS components is not ensured; warranty and damage claims are largely excluded.
4. Conditions of use
The CUSTOMER is obliged to provide true and complete information in the course of the business relationship and to keep his data up to date at all times. He shall treat his data confidentially. If the CUSTOMER suspects misuse by third parties, he must inform the COMPANY immediately.
The CUSTOMER shall refrain from all actions that could endanger or impair the technical provision of services of the COMPANY (including cyber attacks). Such behaviour will be legally prosecuted.
It is the CUSTOMER's responsibility to create the necessary electronic infrastructure (in particular e-mail account as well as hardware and software infrastructure) for using the services. This also means that the CUSTOMER has the necessary software and hardware equipment to use the SOFTWARE. The COMPANY shall have no obligation to provide information or advice in this regard.
It is the sole responsibility of the CUSTOMER to ensure that the SOFTWARE does not capture content that contains illegal content. In particular, care must be taken to ensure that data protection and copyright laws are observed when taking photographs and that no violent or immoral content is photographed.
5. Offer and conclusion of contract
By clicking the button "Buy now" (or a similar button) and entering the required data in the input mask, the CUSTOMER makes a binding offer to conclude a contract with the COMPANY. The COMPANY is not obliged to accept this offer, but will confirm receipt of the offer ("order confirmation"). The acceptance of the CUSTOMER's offer, and thus the conclusion of the contract, is made by the COMPANY by granting the CUSTOMER permission to use the SOFTWARE or by accepting the offer explicitly ("contracting confirmation") via email. Please note that the order confirmation and the contracting confirmation may be combined.
6. Payment modalities
The prices listed on the website of the COMPANY are in EUR or US-Dollar. In case of doubt, the sales tax is not yet included.
The content of the agreed service results from the package selected by the CUSTOMER.
The amounts stated at the time of order shall apply in each case.
Payments are due upon invoicing.
Payment is made in advance for one month. In the event of a subscription, the account named by the CUSTOMER may be automatically debited.
The COMPANY reserves the right to adjust the agreed fees to inflation once a year. The reference value shall be the Austrian consumer price index published on the website of Statistics Austria at the time of conclusion of the contract.
7. Rights of use and copyright
The CUSTOMER may only use the SOFTWARE offered by the COMPANY for the intended purpose.
Upon full payment of all fees and expenses, the COMPANY grants the CUSTOMER a non-exclusive licence (within the meaning of Section 24 (1) first sentence „Werknutzungsbewilligung“ UrhG [Austrian Copyright Act]) to use the SOFTWARE, which is timely limited for the duration of the subcription (“subscription license”) and place and limited in terms of content for the purposes of the business relationship.
One licence entitles the user to use only one camera. If several cameras are to be used, several licences are required.
Sub-licensing or further licensing is only allowed with the explicit consent of the COMPANY.
The right to decompile the SOFTWARE is excluded to the extent permitted by law. The CUSTOMER is not allowed to change the SOFTWARE without the consent of the COMPANY.
Markings of the SOFTWARE, especially copyright notices, trademarks, serial numbers or similar may not be removed, modified or made unrecognizable.
The source code of the SOFTWARE is expressly not owed. Support service is also not owed.
Attention: The use of the OSS components is governed by the respective licence conditions. All restrictions on use and copyright designations made in these licence conditions do not apply with regard to the OSS components.
8. Right of withdrawal according to the Austrian distance selling and foreign trade act (“FAGG”)
This right of withdrawal only applies to private consumers.
The right of withdrawal shall not apply if the delivery of intangible digital content or services is made (i) with the express consent of the CUSTOMER, coupled with (ii) the CUSTOMER's knowledge of the loss of the right of withdrawal in the event of premature fulfillment of the contract and (iii) after the provision of a copy of the contract or confirmation of the contract.
The CUSTOMER has the right to withdraw from an already concluded contract within fourteen days without giving any reason if the contract was concluded electronically. The revocation period is fourteen days from the day of the conclusion of the contract.
In order to exercise the right of withdrawal, the COMPANY must inform the CUSTOMER of the decision to withdraw from this contract by means of a clear declaration (e.g. a letter or e-mail sent by post). For this purpose, the COMPANY may use the model cancellation form, which is listed in Annex I B of the Austrian distance selling and foreign trade act (https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=20008847) and can also be accessed on the website of the COMPANY.
A declaration of revocation is to be sent to the following address:
+43 660 150 69 00
office [at] filmspektakel.at
In order to comply with the withdrawal period, it is sufficient that the CUSTOMER sends the notification of the exercise of the right of withdrawal before the expiry of the withdrawal period. If this option is used, the CUSTOMER will be sent a confirmation of receipt of such revocation. If the CUSTOMER revokes the contractual statement or a contract that has already been concluded, the COMPANY shall return all payments that it has already received from the CUSTOMER without undue delay and no later than within fourteen days from the day on which the COMPANY received the notification of revocation of this contract. For the repayment, the COMPANY shall use the same means of payment that the CUSTOMER used for the original transaction.
If the CUSTOMER has requested that the service should start during the withdrawal period, the CUSTOMER shall pay the COMPANY a reasonable amount corresponding to the proportion of the services already provided up to the time the CUSTOMER notifies the COMPANY of the exercise of the right of withdrawal with regard to this contract, compared to the total scope of the services provided for in the contract. It is pointed out that the major part of the service of the COMPANY will be timely to the conclusion of the contract.
Unless expressly agreed otherwise, the COMPANY will not back-up any data generated and/or stored in the SOFTWARE during its use.
10. Duties to cooperate
The CUSTOMER is obliged to support the COMPANY in the provision of the SOFTWARE continuously and to a reasonable extent and, if necessary, to allow (remote) access to the SOFTWARE. In particular, the CUSTOMER must provide the COMPANY with the necessary information, data and descriptions and communicate its wishes and ideas for the provision of the service in a timely and clear manner.
In the event of necessary (security) updates, the CUSTOMER is obliged to tolerate their installation by COMPANY.
11. Change Management, Customizing, Upgrades and Updates
The CUSTOMER has the right to propose changes to the SOFTWARE (change request or customizing), whereby the COMPANY is not obliged to implement these changes.
The desired changes must be described by the CUSTOMER as precisely as possible in the form of a specification sheet („Lastenheft“).
Change requests and support requests will be charged on a time and material basis unless otherwise agreed.
Attention: For modifications and edits to the OSS components, the obligations of the COMPANY shall be governed solely by the OSS Licence Terms.
12. Liability and warranty
The performance description available at the time of conclusion of the contract is decisive for the quality of the SOFTWARE delivered by the COMPANY.
The COMPANY is entitled to remedy any faults by means of economically and technically reasonable workarounds.
The liability of the COMPANY for slightly negligent conduct is excluded. The COMPANY's liability is limited to the amount of the order value paid by the CUSTOMER. The COMPANY is not liable for loss of profit.
Attention: With regard to OSS components, liability and warranty are governed solely by the rules of the OSS licence conditions. These OSS licence conditions generally hold far-reaching liability and warranty restrictions. The COMPANY is not liable for the OSS components.
13. Data protection and protection of business and trade secrets
The disclosure of data and information to the respective required business partners is permitted to the extent necessary for the fulfilment of the contractual relationship and legal obligations (Art 6 para 1 lit b and lit c GDPR). Otherwise, the COMPANY is obliged to maintain secrecy about the circumstances, data or business and trade secrets related to the other party of which they become aware as a result of the present business relationship and in particular to observe data secrecy. These obligations regarding data and business secrecy shall also apply beyond the contractual relationship.
The source code of the proprietary software is to be qualified as a trade secret within the meaning of section 26b UWG (Austrian Act against unfair competition) and as such is to be subject to appropriate confidentiality measures.
The COMPANY draws attention to the fact that data of the CUSTOMER may be processed for advertising purposes on the basis of legitimate interests (Art 6 para 1 lit f GDPR). The CUSTOMER may object to this form of data processing at any time (Art 21 para 2 GDPR).
14. Reference clause
The COMPANY is entitled to indicate the fact of the business relationship with the CUSTOMER by a reference on its website or other business papers. It is (exclusively) entitled to use the logo of the CUSTOMER in this context. This right also exists beyond this contractual relationship.
15. Duration of contract
The contractual relationship is concluded for an indefinite period. During the first 14 days, the contractual relationship can be terminated at any time. Thereafter, a monthly termination is possible on the respective day of the start of the period subject to payment, subject to a notice period of two days. Here is an example for better illustration. The contract is concluded on 1.9.. On 15.9. the first monthly installment is debited in advance. The contractual relationship can be terminated for the first time on 15.10. subject to a notice period of two days.
16. Jurisdiction and Applicable Law
This contractual relationship is based on Austrian law and this is deemed to be agreed upon. However, this choice of law may not result in a consumer being deprived of the protection afforded to him by the mandatory provisions of his country of residence (Art 6 number 2 Rome I Regulation). The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) as well as of conflict-of-law rules is excluded.
The exclusive place of jurisdiction shall be Vienna, Austria. If the CUSTOMER is a consumer and has his domicile or habitual residence in Austria or is employed in Austria, the CUSTOMER may be sued in derogation thereof only before those courts in whose district his domicile, habitual residence or place of employment is located.
Reference is made to the possibility of dispute resolution by way of an online dispute resolution platform (Art 14 para 1 S 1 ODR Regulation) (https://ec.europa.eu/consumers/odr/main/index.cfm?event=main.home2.show&lng=DE) and national consumer arbitration boards. The COMPANY undertakes to participate in such arbitration proceedings if the CUSTOMER is to be qualified as private consumers.
Annex I Open Source: