Effective date: 22nd of October 2018
Terms and Conditions
The Chatvisor GmbH (limited liability company), Hafenstrasse 47-51, 4020 Linz, Austria (“Chatvisor“), is the developer and owner of the exclusive right of use of the digital marketing and support platform Chatvisor (“platform“), which enables better customer communication online (= Customer Service Suite). Moreover you can distribute digital content through Facebook Messenger to end customers (= Messenger Marketing Suite).
Messenger Marketing Suite
Between Chatvisor and Facebook there are no particular contractual relationsships regarding the supply of services on the part of Chatvisor to its clients. Therefore’s an existing dependency of Chatvisor to Facebook to be able to provide services to its clients. Changes of Facebook on Facebook Messenger can affect or even avoid the services of Chatvisor. Chatvisor has no influence on the design of Facebook’s services. For that reason a situation can occur, where Chatvisor can’t fulfill its services to clients partially or even entirely. This means that a situation may occur in which Chatvisor is able provide its services to its clients only to a limited extent or not at all. In such circumstances, Chatvisor and the client each has an exceptional right to terminate.
Your use of the Messenger Marketing Suite is also governed by the Facebook Platform Policies (https://developers.facebook.com/policy) and Facebook Commerce Product Merchant Agreement (https://www.facebook.com/legal/commerce_product_merchant_agreement), which are hereby incorporated by reference and are a part of these Terms. You are solely responsible and liable for complying with Facebook’s policies. By using Chatvisor you agree to all of these Terms.
1. Range of Application
1.1 These general terms and conditions (“terms and conditions“) apply to all contracts made between Chatvisor and its clients (“clients“) regarding the use of the platform (“usage agreement“).
1.2 The application of a client’s own terms and conditions is excluded. Deviating, opposing or complementary terms and conditions of a client will only be incorporated into the contract when expressly approved in writing by Chatvisor. This approval requirement applies in each case.
1.3 The agreed scope of platform usage, supplemental services, start of collaboration and ongoing services, payment and any further applicable services, will be set out either through booking a self-service offer via our website or via an individual contract between Chatvisor and its client.
2. Functionalities of Platform
Messenger Marketing Suite
2.1 The Messenger Marketing Suite extends the client’s Facebook page and the associated Facebook Messenger channel with additional functionalities.
2.2 Via the platform, the client has the possibility to automatically collect subscribers (after opt-in) through various Growth Tools/Growth Actions, who are to be supplied with news in the future.
2.3 On the platform the client can build a “Messenger newsletter” (= Broadcast) using a modular building block system and dispatch to subscribers. The Messenger Newsletter has various options for presentation - images, videos, text, etc.
2.4 Chatvisor makes the platform available to the client as a technical infrastructure. Chatvisor itself does not create its own content, unless explicitly agreed otherwise.
Customer Service Suite
2.6 The co-browsing function enables users of the website to share their website session with the client (or one of his employees).
2.7 Further functions include e.g. WebChat, VideoChat.
2.8 Chatvisor provides the platform on Chatvisor’s servers for use at the access point of Chatvisor’s (or its hosting partner’s) computer centre (“Delivery Point of Service”). In order to use the Platform, the client must have its own access to the Internet and access the Platform at the Service Delivery Point via this access.
2.9 The platform is 99% available. Availability refers, in relation to the duration of a contractual year, to the ratio of the period during which the client was able to use the platform with an existing internet connection (plus the period during which access was not possible due to planned maintenance work or malfunctions beyond the control of Chatvisor) to the length of the entire contractual year.
3. Rights of Use for the Platform
3.1 Chatvisor grants the client the non-exclusive and non-transferable right to use the platform, exclusively for the fulfillment of the purpose of the respective contract of use. The right of use expires at the end of the contract period.
3.2 The client is not entitled,
- to rent, lease, loan, reproduce, resell or otherwise distribute or transfer the Platform or access to the Platform, including via the Internet or any downstream public or private data network;
- using the platform to develop other services;
- to activate and use functionalities of the platform for which he has not been granted any rights of use;
- to change, translate, duplicate, decompile the source code of the platform, to examine its functions, except as far as legally obligatory according to § 40d or § 40e UrhG.
4. Support Services
4.1 Chatvisor offers the client certain support services free of charge, the scope of which results from the placing of the order.
4.2 Other support services commissioned by the client, in particular consulting and technical services, will be invoiced to the client by Chatvisor on a time and material basis. Before costs are incurred, the client is informed and asked for consent.
5.1 The remuneration of the services used by the client results from the respectively valid price lists or individually agreed offers. Chatvisor accepts the methods of payment as indicated in the client’s Chatvisor account.
5.2 Chatvisor may change prices from the next renewal date. The client will be informed in writing of changed prices at least four weeks in advance. In the event of a price increase, the client has the right to terminate the contract extraordinarily with a notice period of two weeks to the end of the not yet extended contract. Otherwise, the price increase at the next renewal date shall be deemed accepted.
5.3 Unless otherwise agreed, invoices shall be issued to the client in electronic form. The retrieval of the invoice is accessible via the Chatvisor account of the client.
5.4 Current remuneration for the respective service period is payable in advance. Invoices are due upon invoicing and are payable within 30 days.
5.5 All agreed payments are net amounts and do not include value-added tax at the statutory rate.
5.6 The offsetting with counterclaims by the client or the withholding of payments due to such claims is only permitted if the counterclaims are undisputed or legally binding.
5.7 Objections to the invoice must be raised in writing to Chatvisor within four weeks of receipt of the invoice; otherwise the invoice shall be deemed approved. Legal claims of the customer in case of objections after the deadline remain unaffected.
5.8 The assertion of the statutory rights of retention and refusal to perform remains reserved.
5.9 In case of default of the client Chatvisor is entitled to interest on arrears in the statutory amount (possibly eight percentage points above the base rate).
6. Cooperation Obligations of the Client; License; Rights of Third Parties
6.1 If the client maintains media content (pictures, videos, …) for the dispatch of a Messenger Newsletter on the platform, the client grants Chatvisor a non-exclusive, temporally and locally limited right to reproduce, edit, transmit and, if necessary, use the media content in any other way, insofar as this is necessary for the fulfillment of Chatvisor’s contractual obligations.
6.2 The client assures that (i) he is the owner of all necessary rights to the media contents in order to grant Chatvisor the aforementioned rights, (ii) that the client can freely dispose of these and (iii) that the media contents are not encumbered with rights of third parties.
6.3 Within the scope of using the platform, the client assures that he will not store any illegal content or content that violates laws or official regulations, in particular content that glorifies violence, is unconstitutional or pornographic and any other inadmissible offers on the servers of Chatvisor and/or have them stored by Chatvisor.
6.4 Without prejudice to other rights, the client releases Chatvisor from any liability towards third parties, including reasonable costs of legal defence, in the case of a violation of the above assurances. Chatvisor is also entitled (i) to delete data that does not comply with the provisions of Clause 6.1, and (ii) to delete content that does not comply with the provisions of Clauses 6.2 or 6.3, if the client does not delete it despite being requested to do so.
6.5 The client is aware that Chatvisor does not create separate backup copies of the media content and deletes these in accordance with Section 6.4 and after expiry of the contract term in accordance with Section 10.5. It is the client’s responsibility to independently create backup copies of the media content.
7.1 The strict liability is excluded for initial defects. The fault-dependent liability of Chatvisor remains in force. In determining whether Chatvisor is at fault, the clientr acknowledges that software cannot be created completely error-free.
7.2 The removal of defects takes place according to the choice of Chatvisor either through free repair or replacement delivery.
7.3 A termination of the client due to non-granting of the contractual use is only permissible if Chatvisor has been given sufficient opportunity to remedy the defect and this has failed.
8.1 Chatvisor is liable without limitation for damages caused by Chatvisor or a legal representative or vicarious agent of Chatvisor intentionally or through gross negligence.
8.2 In the case of a slightly negligent violation of essential contractual obligations, Chatvisor’s liability is limited to the foreseeable damage typical for this type of contract. Essential contractual obligations are abstract such obligations, the fulfillment of which makes the proper execution of a contract possible in the first place and on the observance of which the contracting parties may regularly rely.
8.3 Liability under the Product Liability Act remains unaffected.
8.4 In all other respects Chatvisor’s liability is excluded.
8.5 The limitation period for compensation claims of the client against Chatvisor is one year.
9.1 Chatvisor expressly points out to the client that data protection and data security for data transmissions in open networks such as the Internet cannot be guaranteed according to the current state of the art. Chatvisor has taken all technical and organizational measures in accordance with the law to secure personal data stored by Chatvisor against misuse and unauthorized access. However, third parties are under certain circumstances technically in a position to monitor the message traffic without authorization, especially in the case of data transmission via the Internet outside the access area of Chatvisor.
9.2 The client is responsible for ensuring that Chatvisor is used in accordance with data protection regulations towards the end client.
10. Contract Period; Termination of Access
10.1 The client is permitted to use the platform for the duration of the agreed contract period. The contract period begins with the date of commissioning.
10.2 Unless otherwise agreed, the minimum contract term is one month. The user contract shall always be extended by a further contract month at the end of the minimum contract term if it is not terminated by one of the parties five working days prior to the end of the respective contract month at the latest. The right of both parties to terminate without notice for good cause remains unaffected.
10.3 Chatvisor has in particular the right to terminate without notice for good cause in the following cases:
- the client becomes insolvent or overindebted;
- an application is filed for the opening of insolvency proceedings against the client’s assets, or
- the client is in default for two consecutive months with the payment of the agreed current remuneration or a not inconsiderable part thereof or is in default for a period extending over more than two months with the payment of the current remuneration in the amount of an amount which reaches the current remuneration to be paid for two months.
10.4 Termination must always be in writing (mail or e-mail).
10.5 After expiry of the contract period, the client is no longer able to access the platform and the media content - except in case of a contract extension or the conclusion of a new usage contract - and the media content is deleted from the platform by Chatvisor. The media contents stored by the client on the platform are finally deleted by Chatvisor at the latest one month after the end of the contract period.
11.1 The parties are obliged not to make confidential information accessible to third parties for a period of two years after the end of the contract term and not to use it for other purposes not serving the cooperation. The following are considered confidential
- all information on the remuneration agreed between the parties,
- all information about the duration of the contract,
- all technical information and know-how made available to the client as well as
- any other information that is identified as confidential by either party.
11.2 The obligation to maintain secrecy does not apply to information which has become or is already known to the other party without breach of secrecy by one party, or to information which has become or is known to the public without breach of secrecy by the other party, or which is to be made accessible to third parties by virtue of a statutory, judicial or official order.
12. Change of Terms and Conditions
12.1 Chatvisor reserves the right to change the services offered as well as the GTC as far as the respective change is necessary to reflect changes that were not foreseeable when the respective order was placed and the non-observance of which would impair the contractual balance between Chatvisor and the client, in particular as far as Chatvisor (i) is obliged to establish the conformity of the services with the applicable law, in particular if the applicable legal situation changes; and/or (ii) in order to comply with a court decision against Chatvisor or an official decision, and/or (iii) to adapt the Platform due to mandatory technical specifications by Facebook.
12.2 At no time will the performance changes limit the fulfillment of the main contractual obligations by Chatvisor.
12.3 In cases other than paragraph 12.1 Chatvisor informs the client in advance of the changes to the GTC. If the client does not object to their validity within four weeks after receipt of the notification, the changes shall be deemed accepted with effect for the future. If the client objects to the changes, Chatvisor is entitled to terminate the contractual relationship. Chatvisor will refer to the effect of silence and the right of termination in the notification.
12.4 Any change to the subject matter of the contract and the main performance obligations that would lead to a change in the contractual structure as a whole is excluded from the right to make changes pursuant to Section 12.3. In these cases Chatvisor will inform the client of the intended changes and offer the continuation of the contractual relationship under the then changed conditions.
13.1 The agreements concluded between the parties including these GTC are subject to the substantive law of the Republic of Austria to the exclusion of the UN Convention on Contracts for the International Sale of Goods and international private law.
13.2 The exclusive place of jurisdiction is Linz, Austria.
13.3 Should one or more provisions of these General Terms and Conditions be or become invalid, the courts of Linz, Austria shall have exclusive jurisdiction.
13.5 Without the prior written consent of Chatvisor, the client may neither permanently nor temporarily transfer the rights and obligations arising from the user contract to third parties.