These General Terms and Conditions of Use (GTCU) apply to all users of the Workheld applications and the associated applications and services.
With the acceptance of the offer to use Workheld, a contractual relationship is created between the accepting company (hereinafter referred to as “Customer”) and Workheld GmbH (operator of the Workheld Platform and the associated applications, hereinafter referred to as “Workheld”) with its registered office at Rotensterngasse 5, 1020 Vienna.
1 Scope of Application
1.1 The transfer and use of software and other works copyrighted in favour of Workheld GmbH (hereinafter referred to as ‘Workheld’), subject to these End User Licence Terms for Software and Copyrighted Works (as amended from time to time).
1.2 This End User Licence Agreement (‘EULA’) is a legal agreement between you (a person or entity referred to as an ‘End User’ in the remainder of this EULA) and Workheld for software accompanying this EULA – the Workheld Platform with the Workheld Call and Workheld Flow elements (referred to as ‘WCL’ or ‘WFL’ for short). This document governs your rights and obligations in connection with your use of the Workheld software. The Software includes all associated media, printed materials and documentation online or in electronic format. NOTE: IF YOU DO NOT HAVE A VALID LICENCE FOR “WCL” OR “WFL” (A ‘SOFTWARE PRODUCT’), YOU ARE NOT ALLOWED TO INSTALL, COPY OR OTHERWISE USE THE SOFTWARE – EXCEPT FOR THE PURPOSE OF A TIME LIMITED TRIAL PERIOD.
1.3 No variation to the terms and conditions set out in these Licence Terms shall be effective unless accepted in writing by Workheld. Any legal terms and/or general terms and conditions of the End User shall not apply and are excluded by mutual agreement.
2 Subject matter of the contract
Software in the sense of these terms and conditions are standard distributed or individually for the end user developed or adapted, in favour of Workheld copyrighted computer programs in the sense of § 40a Copyright Act for use on, for the operation or for the control of electrotechnical and / or electronic equipment and systems including documents provided for this purpose.
3 (Rights of Use) Rights to the Software
3.1 After conclusion of the contract (“Subscription”), the End User shall receive the non-transferable and non-exclusive right to use the software in compliance with the contractual specification at the agreed installation location or on the installed App.
3.2 All Software Licences are issued to the End User in accordance with the End User’s details (company name, company address, legal form and VAT number) available to Workheld at the time of entering into the Contract. In the event of a change of name, you will be invoiced by Workheld for all expenses incurred in connection with the change of software licence on a time and material basis.
3.3 When using software products, a licence is required for each Named User.
3.5 All documentation provided by Workheld to the End User, including but not limited to documentation relating to software products, may not be reproduced or distributed in any way, whether for a fee or free of charge.
3.6 All other rights in the Software are reserved by Workheld. Without Workheld’s prior written consent and without prejudice to the provisions of Section 40d of the Copyright Act, the End User is therefore in particular not entitled to sell, rent, lend, sublicense, assign or transfer the Software, reproduce it either in whole or in part, modify it, reverse engineer it, reset it, extract parts of it, make it available to third parties, analyse it, decompile it or disassemble it.
4 Obligations of the End User
4.2 Furthermore, the User undertakes not to misuse the services of the Workheld Applications, in particular:
- not to distribute any immoral, obscene, pornographic or right-wing/left-wing radical, violent content or photos
- not to disseminate defamatory, offensive or illegal material or information about such material – not to threaten or harass other persons or violate their other rights
- not to upload data containing viruses
- not to upload data that is protected by copyright (unless he/she owns the copyright or has the corresponding consent)- not to provide false address data
- not to use the application or the website in a way that adversely affects the availability of the services for other users- not to intercept or attempt to intercept information (e-mails, messages, etc.)
- not to send chain letters, unlawful structural distributions or the like
- not to generate traffic by unauthorised means
Failure to comply with the above duties of conduct may result in the following sanctions
- a request for a statement
- Restriction of use
- Deletion of content
- Blocking of use
- if necessary, handing over information relevant to criminal law to investigating authorities.
Workheld also reserves the right to take legal action of any kind.
4.3 The end user is responsible for the protection of all rights of the licensor (such as industrial property rights, copyright including the right to copyright notice) to the software and the protection of the licensor’s claims to secrecy of trade and business secrets also by his employees and vicarious agents or third parties; this also applies if the software has been modified or combined with other programs. This obligation shall remain in force even after termination of the contract.
4.4 The End User undertakes to use the Subject Matter in accordance with the Contract and to indemnify and hold Workheld harmless in this respect.
4.5 The End User agrees to comply strictly with the instructions given by Workheld for the operation of the Software.
4.6 The End User shall keep the subject matter of the Contract in safe custody to prevent misuse, unauthorised copying and/or use. The End User shall ensure that access authorisation to the Software is regulated against inspection and use by unauthorised persons, that authorisation to use the Software is defined by technical measures and that each device on which the Software can be accessed is secured by precautions against unauthorised use. The end user shall take reasonable precautions to prevent malfunction of the software as far as possible.
5 Software Specifications
5.1 Workheld may change the software specifications for new versions.
5.2 The End User acknowledges that the Software is only compatible with the hardware or software agreed in the Purchase Agreement. In the case of access via Bowser, Workheld requires the latest stable version of the following browsers: Chrome, Firefox and Edge. If iOS, Android or Windows Apps are used, the latest stable version of these platforms is required. Any additional costs for migrations that may be necessary due to the product policy of a manufacturer will not be borne by Workheld.
6.1 Workheld warrants that the Software is free from viruses, ransomware, spyware and other malicious software.
6.2 Workheld warrants to the End User that, provided the End User uses the Software in accordance with these Terms, the Software does not infringe any third party intellectual property rights.
6.3 Even in the case of defects of title, Workheld shall in all cases first have the option of providing warranty by way of improvement; Workheld shall, at its option, provide the purchaser with a legally flawless possibility of use of the subject matter of the contract within the scope of this contract or of the replaced or modified equivalent subject matter of the contract (reasonable work-around).
6.4 The End User acknowledges that complex software can never be completely free of defects, bugs or errors. Workheld does not warrant that the Software will be free from defects, errors or bugs except as set out above.
6.5 The End User acknowledges that complex software will never be entirely free from security risks. Except as otherwise provided in these End User Licence Terms, Workheld does not warrant that the Software will be completely secure.
7 Indemnity and Hold Harmless
7.1 Workheld is not responsible for any information entered by the User or for providing access to such information.
7.2 Workheld will assist the End User in defending any claim that Software used in accordance with this Agreement infringes an intellectual property right or copyright effective under Austrian law. The End User shall notify Workheld in writing without undue delay and, in the event of litigation, file a notice of dispute pursuant to Section 21 of the Austrian Code of Civil Procedure (ZPO) if any such claims are brought against it. If claims are made for infringement of proprietary rights for which Workheld is responsible, Workheld may, at its own expense, modify or replace the Software or obtain a right to use it. If this is not possible with reasonable effort, the End User shall, at Workheld’s request, immediately return the original and all copies of the Software, including any documentation provided.
7.3 All claims of the End User in respect of infringement of industrial property rights and copyright are hereby finally settled, to the exclusion of any further obligation of Workheld.
7.4 If a claim is made or threatened against Workheld by a third party because of the End User’s misuse of the Services, the End User will notify Workheld immediately. Workheld will give the End User the opportunity to defend the claim or to obtain full redress.
7.5 The End User agrees to compensate Workheld for any loss or damage suffered by Workheld as a result of any proven infringement by the End User of any third party rights, including but not limited to patent, trade mark, design, semiconductor, copyright and other related claims (e.g. unfair competition claims) or claims based on personal rights or other intellectual property rights.
7.6 The damages to be compensated also include payments for an out-of-court settlement of disputes, which Workheld may agree with the End User’s consent. The End User may only withhold such consent for good cause and not unreasonably.
7.8 Workheld shall be liable – except for personal injury – only in case of gross negligence.
7.9 The amount of liability shall in no event exceed the license fee paid by the End User for the Software.
7.10 WORKHELD SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF INTEREST, LOSS OF DATA OR LOSS OF USE OF DATA.
7.11 In the event of maintenance work, there may be restrictions on the services offered – the User shall not be entitled to any claims arising therefrom.
7.12 If a contract is concluded between users by means of the use of Workheld or the Workheld applications, only the participating users become contracting parties to the concluded transaction. Claims arising from contracts between users cannot be asserted against Workheld. Workheld itself does not become a contracting party to the contracts concluded exclusively between users. The performance of these contracts concluded via Workheld’s platform is exclusively between the users. Workheld is not responsible for any disputes between users that may arise from the contractual relationship.
8 Return and destruction of the software
Upon termination of the right of use, the end user is obliged, at Workheld’s discretion, to return the entire software, including any documents provided, to Workheld or to demonstrably destroy it. This also applies to software that has been modified or combined with other programs.
9 Duration and Termination
9.1 The duration of the right of use is governed by the licence agreement to be entered into between the end user and Workheld, and in respect of any software maintenance contract services by the provisions of the relevant service certificate. The right of use ends in any case
9.1.1 upon expiry of the agreed period of use;
9.1.2 upon uninstallation of the Solution;
9.1.3 by termination after expiry of any agreed minimum period of use and – in the absence of any other agreement – compliance with a three-month notice period to the end of the billing period;
9.1.4 by premature termination in the event of serious breaches of contract if the contractual condition is not restored within a reasonable period of grace set in writing;
9.1.5 by premature dissolution in the event of the opening of insolvency proceedings against the assets of the end user or in the event of the rejection of an application for the institution of insolvency proceedings for lack of sufficient assets. Such dissolution shall take effect immediately upon the declaration that the enterprise will not be continued. In the event that the company is continued, the dissolution shall not take effect until 6 months after the opening of insolvency proceedings.
9.2 If the dissolution is indispensable to avert serious economic disadvantages to Workheld, it shall take effect immediately.
10 Export Restrictions
10.1 Any transfer of the subject matter of the contract, documents and other materials, in particular any re-export, may be subject to authorisation under the export regulations of the USA, the European Union and any other countries. In such a case, the end user shall be obliged to obtain the relevant permits from the authorities concerned before passing them on. This obligation must be contractually transferred to the respective purchaser or authorised user in the event of any further transfer.
10.2 Should it transpire after the conclusion of the contract that the delivery of the contractual components is subject to an export restriction of the United States of America or the legal provisions of the European Union or is subject to the “Arab Boycott”, Workheld is entitled to withdraw from the contract. If the End User has not informed Workheld about such circumstances at the time of the conclusion of the contract, the End User shall fully compensate Workheld for the resulting expenses and damages.
11 Law and Jurisdiction
11.1 The contractual relationship shall be governed exclusively by Austrian law to the exclusion of its conflict of law rules. The application of the United Nations UNCITRAL Convention on Contracts for the International Sale of Goods is excluded.
11.2 The competent court in Vienna, Innere Stadt, shall have jurisdiction to decide on all disputes arising from the contractual relations – including those concerning their existence or non-existence.
12 Final Provisions
12.1 The current version of the GTCS is available at www.workheld.com. Agreements that deviate from or supplement these GTCS must be in writing in order to be valid.
12.2 Workheld is entitled to unilaterally amend these GTC. The customer will be informed of any amendment by notification of the content of the amended provisions. The amendment shall become valid if the customer does not object to the inclusion in the contractual relationship in writing (by post to Workheld GmbH, Rotensterngasse 5, 1020 Vienna or by e-mail to email@example.com) within six weeks after receipt of the notification of amendment.
12.3 Should individual provisions of this agreement be invalid or unenforceable or become invalid or unenforceable after conclusion of the contract, the validity of the rest of the contract shall remain unaffected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision whose effects come as close as possible to the economic objective pursued by the contracting parties with the invalid or unenforceable provision.