GTC

Frontlead

Part 1: GTC
Part 2: Data processing agreement (“DPA”) pursuant to Art. 28 GDPR
_

Part 1: General Terms and Conditions

 

1. preamble

The company Frontlead (owner Dietmar Stuck e.U.), Frodlgasse 2, 9020 Klagenfurt, Austria, mail frontlead io, +43 676 30 66 933 (hereinafter referred to as “PROVIDER”), specializes in the development of online software, online platforms and high-quality applications and websites. In this context, ANBIETER has developed the online software application “Frontlead”. Frontlead supports the user (hereinafter referred to as “VENDOR”) in offering free and paid personalized forms, funnels, analyses, self-tests, quizzes, research, applications, surveys and much more to third parties (hereinafter referred to as “END USERS”).

These General Terms and Conditions are aimed at companies within the meaning of Section 1 (1) (1) KSchG (or Art. 2 (2) of Directive EU 2011/83/EU) that wish to use Frontlead commercially.


2. scope of application

These GTC govern the acquisition, use and exploitation of the Frontlead software and the associated business and administrative activities.

In the event of a conflict between the German version and the English version, the German version shall take precedence.


3. conditions of use

The VENDOR 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 must treat his data confidentially. If the VENDOR suspects misuse by third parties, he must inform the PROVIDER immediately.

The VENDOR must refrain from all measures that could jeopardize or impair the technical provision of Frontlead (including cyber attacks). Such behavior will be prosecuted.

The VENDOR must take suitable precautions to protect Frontlead from unauthorized access by third parties. He shall inform his employees or employee-like persons that use beyond the contractual scope is not permitted.

It is the responsibility of the VENDOR to create the necessary electronic infrastructure (in particular e-mail account as well as hardware and software infrastructure) for the operation of Frontlead. The PROVIDER has no duty to provide information or advice in this regard.


4. offer, conclusion of contract, start of the payment obligation and amount of the fee

The VENDOR can first create a free test account by clicking on the “Create account” button and entering the required data.

As a result, the VENDOR must accept these GTC and take note of the privacy policy.

If the registration is successfully completed, the VENDOR will be provided with a free trial account.

If the VENDOR wishes to use a paid version of Frontlead, the following section applies:

By clicking on the “Order now” button, accepting these GTC and acknowledging the privacy policy and entering the required data in the input mask, the VENDOR submits a binding offer to conclude a contract with the PROVIDER. The PROVIDER is not obliged to accept this offer. The acceptance of the VENDOR’s offer, and thus the conclusion of the contract, is made by the PROVIDER by sending a link to the Frontlead application.

The amount of the fee depends on the model selected by the VENDOR (Light, Premium or Platinum).


5. commission fee

If the VENDOR charges its customers (hereinafter referred to as “END USERS”) a fee for the implementation of a project via Frontlead, the PROVIDER shall be entitled to a share of this fee in addition to the fee within the meaning of point 4, which shall be calculated as follows:

7.90 % of the payout amount and
EUR 2.00 (plus any value added tax) per payment made.

This participation claim is retained directly by the PROVIDER. The difference is paid to the VENDOR on a fortnightly or monthly basis (depending on the VENDOR’s choice).


6. payment modalities

The fee for the use of Frontlead is automatically debited each month on the 14th day of the month following the conclusion of the contract. The contract is automatically renewed unless it is terminated. Here is an example to better illustrate this. The contract is concluded on 15.5.2020 (by sending the link to create the account). The payment obligation starts on 29.5.2020. From then on, the fee will always be debited on the 29th of the respective month until the end of the contract. The VENDOR must ensure that sufficient funds are available in the account specified by him on this date.

If there are insufficient funds in the VENDOR’s account on this day, the use of Frontlead will be automatically blocked without prior warning. The Provider shall not be liable for any damages incurred by the VENDOR or END USER as a result.

The prices quoted on the PROVIDER’s website are in EUR excluding tax.

The amounts quoted at the time of ordering shall apply. The PROVIDER is responsible for setting the prices.

If the receivables are not paid within fourteen days, the PROVIDER shall charge the legally permissible default interest within the meaning of Section 456 UGB from the due date. An expense allowance of EUR 25.00 per reminder letter may be charged for reminder letters.
Notwithstanding the above, the PROVIDER is entitled to withhold its obligations under this contract for the duration of the default in payment.

If the VENDOR selects the “ANNUAL DISCOUNT” option, a one-off annual fee must be paid. This annual fee is automatically debited on the 14th day following the conclusion of the contract. The contractual relationship is automatically extended by one year if it is not terminated in due time (at least 14 days before the next payment obligation). Here is an example to better illustrate this. The contract is concluded on 15.5.2020 (by sending the link to create the account). The payment obligation starts on 29.5.2020. The next payment obligation arises on 29.5.2021, unless the contractual relationship has been terminated by 15.5.2021 at the latest.

The PROVIDER is entitled to adjust all prices to the current consumer price index once a year on 1.1. or 1.7. The consumer price index at the time the contract is concluded shall serve as a reference.

If the PROVIDER does not make use of its right to adjust prices in one year, this price increase can be made up for in a subsequent year in addition to the current period. Here is an example to better illustrate this: The contractual relationship is concluded on 15.5.2020. From 15.5.2021, the PROVIDER can claim a price increase (inflation in this period of e.g. 3%). If he does not make use of this price adjustment, he can claim the price increase of the current period plus the price increase of the previous period (i.e. plus 3%) from 15.5.2022.


7. work use permit

The PROVIDER grants the VENDOR the non-exclusive license to use Frontlead for the purposes of the business relationship, limited in terms of time, content and location (within the meaning of Section 24 (1) first sentence UrhG).

Any resale of Frontlead requires the express consent of the VENDOR. However, it is expressly pointed out that the VENDOR may make Frontlead available to its customers.

The right to decompile Frontlead is excluded to the extent permitted by law. The VENDOR may not make any changes to Frontlead without the consent of the PROVIDER. Use of the work within the meaning of § 40d UrhG remains unaffected.

Frontlead markings, in particular copyright notices, trademarks, serial numbers or similar, may not be removed, altered or made unrecognizable.


8. license audit

The PROVIDER is entitled to demand proof from the VENDOR at any time that the Frontlead software is being used in accordance with the law and the contract.


9. obligation to make available

The PROVIDER is obliged to make Frontlead available to the VENDOR for the duration of the contractual relationship and to ensure the maintenance of Frontlead.


10. change requests

The VENDOR is entitled to propose changes to Frontlead. The PROVIDER is not obliged to comply with these change requests. The implementation of any change requests is not included in the prices according to point 4. The PROVIDER may therefore invoice the costs incurred in this connection separately.

The copyright exploitation rights to any changes are the sole and exclusive property of the PROVIDER. The latter shall, however, grant the VENDOR a license to use these changes for the duration of the contractual relationship within the meaning of Section 24 (1) first sentence UrhG.


11. duties to cooperate

The VENDOR is obliged to cooperate to the extent necessary for the use of Frontlead. This includes, in particular, the embedding of Frontlead on its homepage. Any failure by the VENDOR to do so shall not be at the expense of the PROVIDER and in particular shall not reduce the latter’s claims to remuneration.


12. service disruptions

If the PROVIDER is temporarily unable to provide Frontlead for reasons beyond its control (e.g. power failure, cyber attacks, force majeure, problems with 3rd party software, server maintenance), the VENDOR’s (full) payment obligations shall remain unaffected.


13 Liability for damages and warranty

The PROVIDER’s liability for slight negligence is excluded. Liability is generally limited to twelve times the amount of the monthly fee to be paid by the VENDOR in accordance with point 4. In the case of the “ANNUAL DISCOUNT” option, the amount of liability is limited to the one-off annual fee.

The PROVIDER’s liability for the VENDOR’s loss of profit is excluded.

This limitation of liability does not apply with regard to personal injury and with regard to the Product Liability Act or in the event of wilful damage.

Warranty claims shall lapse within six months of Frontlead providing the goods. Obligations to give notice of defects within the meaning of § 377 UGB must be complied with.

The PROVIDER is not liable for 3rd party software.

The PROVIDER assumes no liability for the legally compliant (in particular within the meaning of the GDPR and the TKG) utilization by the VENDOR of the leads obtained via frontleads (i.e. information about the END USER for marketing purposes).

The PROVIDER accepts no liability if Frontlead cannot be made available at short notice due to a temporary failure of the server and the VENDOR, its customers or END USERS suffer damage as a result.


14. indemnification and hold harmless

Should the PROVIDER be held liable by a third party due to the unlawful use of Frontlead by the VENDOR, the VENDOR undertakes to indemnify and hold the PROVIDER harmless.


15. involvement of subcontractors

The PROVIDER may use subcontractors to fulfill its obligations under this contract.


16 Amendments to the General Terms and Conditions

The PROVIDER is entitled to amend these terms and conditions at any time. The PROVIDER shall inform the VENDOR of such amendments by sending the amended terms and conditions to the e-mail address last notified to the VENDOR. The VENDOR has the right to object to this change. If the VENDOR does not object within 14 days of this amendment being sent, it shall be assumed that the amendment to the General Terms and Conditions has been impliedly accepted. Unilateral and objectively unjustified changes to the General Terms and Conditions cannot be implemented in this way. This does not affect a price adjustment within the meaning of point 6.


17. non-solicitation

The VENDOR undertakes not to entice away any employees of the PROVIDER during the term of the contractual relationship and for a period of one year after its termination.


18. 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 fulfillment of the contractual relationship. Otherwise, the PROVIDER and the VENDOR are mutually obliged to maintain confidentiality about the circumstances and data related to the other party, which they become aware of as a result of the present business relationship, and in particular to maintain data secrecy. These obligations to maintain data and business secrecy shall also apply beyond the contractual relationship. The PROVIDER and the VENDOR further undertake to instruct and instruct their employees and vicarious agents in this sense.

The PROVIDER (processor within the meaning of Article 4(8) GDPR) and the VENDOR (controller within the meaning of Article 4(7) GDPR) shall conclude a processor agreement in accordance with Article 28 GDPR (see Part 2 below). In particular, it is incumbent on the VENDOR to fulfill its information obligations within the meaning of Art 12 et seq. of the GDPR towards its END CUSTOMERS. However, the PROVIDER shall of course support the VENDOR in this within the scope of its legal obligations (cf. Art 28 para 3 lit f GDPR).


19. reference clause

The PROVIDER is entitled to indicate the fact of the business relationship with the VENDOR by means of a reference on its homepage. In this context (exclusively), he is entitled to use the VENDOR’s logo.


20. duration of the contractual relationship

The contractual relationship with VENDOR is concluded for an indefinite period. It can be terminated by either party subject to a notice period of 14 days before the next payment date (see point 6 on the payment date).
This does not affect the right to extraordinary termination.

Apart from statutory retention obligations (within the meaning of § 212 UGB or §132 BAO), the PROVIDER is under no obligation to store data obtained via Frontlead beyond the contractual relationship.


21. blocking access to Frontlead

If the PROVIDER has reasonable grounds to believe that the VENDOR (or one of the END USERS) is using Frontlead in an unlawful manner, the PROVIDER is entitled to block access to the software immediately and without prior notice. The possibility of further legal remedies remains unaffected.


22 Place of jurisdiction and applicable law

This contractual relationship is based on Austrian law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and of conflict of law rules is excluded.

The exclusive place of jurisdiction is the competent court in Klagenfurt, Austria.


23 Other

Should any part of these terms and conditions be invalid, this shall not affect the validity of the remaining terms and conditions. The invalid condition shall be replaced by a valid condition that comes as close as possible to the economic intentions of both parties to the agreement.

Amendments and additions to these terms and conditions are only valid if they have been agreed and signed in writing. This shall not affect the provisions set out in points 6 (“Price adjustment”) and 16 (“Amendment of the GTC”).

The PROVIDER recommends that the VENDOR save these GTC permanently.

 

_

Part 2: Data processing agreement

(“GCU”) pursuant to Art 28 GDPR

1. entry requirements

1.1. Contracting parties

This contract is concluded between VENDOR
(controller within the meaning of Art. 4 (7) GDPR)

hereinafter referred to as the “controller” on the one hand and the

Frontlead
Owner Dietmar Stuck e.U.
Frodlgasse 2, 9020 Klagenfurt, Austria
Phone +43 676 30 66 933
E-Mail mail frontlead io
Website https://frontlead.io
Company register number 345436w

hereinafter referred to as “Processor” on the other hand.

1.2. Definitions

PROCESSOR means a processor within the meaning of Article 4(8) of the General Data Protection Regulation. A processor in this sense is anyone who processes DATA on behalf of the CONTROLLER.

DATA means personal data within the meaning of Article 4(1) of the General Data Protection Regulation.

GDPR refers to the General Data Protection Regulation as amended.

MAIN CONTRACT means the contract (“GTC Frontlead – see Part 1 above”) between the CONTRACTING PARTIES on which this GCT is based.

DATA CONTROLLER means a controller within the meaning of Article 4(7) of the General Data Protection Regulation. A controller in this sense is anyone who decides on the purposes and means of processing DATA.

The CONTRACTING PARTIES include the RESPONSIBLE PARTY and the CONTRACTOR.

1.3. Preamble

Pursuant to Art 4(8) GDPR, a natural or legal person, public authority, agency or other body which processes personal DATA on behalf of the DATA CONTROLLER shall be qualified as a DATA PROCESSOR. In this case, the CONTRACTING PARTIES are obliged to conclude a processor agreement within the meaning of Art 28 GDPR. By signing the present DPA, the CONTRACTING PARTIES comply with this obligation. The processor provides sufficient guarantees that appropriate technical and organizational measures are implemented in such a way that the processing is carried out in accordance with the requirements of the GDPR and the protection of the rights of the data subjects is guaranteed (Art 28 para 1 GDPR).

1.4. Gender neutrality

For the purpose of better readability, no gender-specific differentiation is made. This is done without any intention to discriminate.


2. main part

2.1. Subject matter, duration, nature and purpose of the processing (Art 28 (3) GDPR)

This contract is concluded for an indefinite period. It ends as soon as the MAIN CONTRACT ends. The subject matter and nature of this DPA is set out in the MAIN CONTRACT and can be summarized as follows: Creation of free and fee-based forms, funnels, analyses, self-tests, quizzes, research, applications, surveys and much more which are offered to third parties for implementation.
For these purposes, the Frontlead software is made available to the RESPONSIBLE PARTY by the CONTRACTOR on a web-based basis.

2.2. Type of personal data and categories of data subjects (Art 28 (3) GDPR)

In the course of the present ORDER PROCESSING, the following types of DATA are processed by the RESPONSIBLE or end users of the software:

– Contact details: E-mail, name, title, address, zip code, country
– Questions and answers in connection with the Frontlead software
– Login data: E-mail, password, name
– Account details
– Date of birth (if applicable), gender
– Company name, VAT number

2.3. Processing only on documented instruction (Art 28 para 3 lit a GDPR)

The Processor shall only process DATA on documented instructions from the Controller, including in relation to the transfer of DATA to a third country or an international organization, unless required to do so by Union or Member State law to which the Processor is subject; in such a case, the Processor shall notify the Controller of such legal requirements prior to processing, unless the law in question prohibits such notification on grounds of important public interest.

2.4. Obligation of confidentiality (Art 28 para 3 lit b GDPR)

The PROCESSOR warrants that the persons authorized to process the DATA have undertaken to maintain confidentiality or are subject to appropriate statutory confidentiality.

2.5. Obligation to implement the necessary measures (Art 28 para 3 lit c GDPR)

The ORDER PROCESSOR warrants to take all measures required under Article 32 GDPR.

2.6. Support obligations (Art 28 para 3 lit e GDPR)

The ORDER PROCESSOR shall, where possible and given the nature of the processing, assist the RESPONSIBLE with appropriate technical and organizational measures to comply with its obligation to respond to requests to exercise the rights of the data subject referred to in Chapter III GDPR.

2.7. Duty to provide information (Art 28 para 3 lit f GDPR)

The PROCESSOR shall assist the CONTROLLER in complying with the obligations set out in Articles 32 to 36 GDPR, taking into account the nature of the processing and the technical information available to the CONTROLLER.

2.8. Return or deletion of the data (Art 28 para 3 lit g GDPR)

The PROCESSOR shall, upon completion of the provision of the processing service, either delete or return all DATA at the option of the CONTROLLER, unless there is an obligation to store the DATA under Union law or the law of the Member States.

2.9. Possibility of review (Art 28 para 3 lit h GDPR)

The PROCESSOR shall provide the RESPONSIBLE with all information necessary to demonstrate compliance with the obligations set out in Art 28 GDPR and shall enable and contribute to audits – including inspections – carried out by the RESPONSIBLE or another auditor commissioned by the RESPONSIBLE.

2.10. Duty to provide information in the event of a data protection breach (Art 28 (3) (h) GDPR)

The ORDER PROCESSOR shall inform the RESPONSIBLE immediately if it believes that an instruction violates the GDPR or other data protection regulations of the Union or Member States.

2.11. Use of sub-processors (Art 28 (4) GDPR)

Where the PROCESSOR uses the services of another processor to carry out certain processing activities on behalf of the controller, the same data protection obligations shall be imposed on that other processor by means of a contract or other legal instrument under Union or Member State law, laid down in the contract or other legal instrument between the CONTROLLER and the PROCESSOR pursuant to this DPA, in particular providing sufficient guarantees that the appropriate technical and organizational measures are implemented in such a way that the processing is carried out in accordance with the requirements of the GDPR. If the Processor fails to comply with its data protection obligations, the first Processor shall be liable to the Controller for compliance with the obligations of that other Processor.

The following subcontractors are currently employed:

-) Stripe, Inc
is an online payment service based in San Francisco, California
for the purpose of payment processing
(Privacy Shield certified)
Conclusion of standard data protection clauses pursuant to Article 46(2)(c) GDPR

-) Digital Ocean, Inc
is a cloud infrastructure provider based in New York City
for the purpose of software hosting
Conclusion of standard data protection clauses pursuant to Article 46(2)(c) GDPR

-) DeSmart sp. z o.o.
is a web development company based in Poland
for the purpose of maintenance
Within the European Economic Area

-) Kamil Orzełek IT
is a backend programming company based in Poland
for the purpose of maintenance
within the European Economic Area

The RESPONSIBLE shall grant a general authorization for the PROCESSOR to engage other sub-processors. However, the PROCESSOR shall always inform the RESPONSIBLE of any intended change with regard to the involvement or replacement of other sub-processors. The RESPONSIBLE has the right to object to such changes (Art 28 para 2 GDPR). The PROCESSOR undertakes to comply with the conditions set out in Art 28 (2) and (4) GDPR for the use of the services of another processor (Art 28 (3) (d) GDPR).


3. costs of participation

The RESPONSIBLE PARTY shall bear the costs incurred in connection with the exercise of the RESPONSIBLE PARTY’s necessary rights of cooperation (in particular, but not exclusively, in connection with an inspection [see Section 2.9] and the exercise of data subject rights [see Section 2.6]). In these cases, the RESPONSIBLE PARTY shall be remunerated at an hourly rate of EUR 120.00 plus VAT.


4. limitation of liability

In the event of joint and several liability due to the violation of data protection provisions (this concerns [merely demonstrative list] both fines within the meaning of Art 83 GDPR, obligations to pay damages within the meaning of Art 82 GDPR and warnings within the meaning of the UWG), the liability of the CONTRACTED PROCESSOR shall be limited to twelve times the monthly remuneration to be paid by the RESPONSIBLE PARTY to the CONTRACTED PROCESSOR. This limitation of liability shall not apply in the event of intentional damage caused by the CONTRACTOR. If claims are asserted against the CONTRACTOR in relation to third parties, the RESPONSIBLE shall indemnify the CONTRACTOR for the amount exceeding the limitation in the sense of this point.


5. final provisions

5.1. Partial invalidity/severability clause

Invalid provisions of individual parts of this DPA shall not affect the validity of the remaining provisions. They shall be replaced by appropriate substitute provisions which, in the light of the purpose of the contract, come closest to what the CONTRACTING PARTIES would have wanted if they had been aware of the invalidity. The same applies to loopholes contrary to the contract. In case of doubt, the rules of Art. 28 GDPR apply.

5.2. Applicable law

This DPA (and all related contractual components) shall be governed by Austrian law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.

5.3. Place of jurisdiction

For the settlement of disputes concerning the validity of the GCT (and all related parts of the contract), arising from the contract and after termination of the contract, the court with subject-matter jurisdiction for the registered office of the CONTRACTOR shall be agreed.


6. contract hierarchy

This DPA forms an integral part of the MAIN AGREEMENT. In the event of an objection, the provisions of the DPA shall supersede those of the MAIN AGREEMENT, provided that the provision concerned primarily deals with a regulation within the meaning of the GDPR.

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