Terms and Conditions

1. General

1. Scope 

These Terms and Conditions apply to all our services offered via labelup.io between Label Up GmbH, Stiegengasse 2/6, 1060 Vienna AT, hereinafter referred to as the "Provider", represented by its managing directors, and our customer (hereinafter referred to as the "Customer") in the currently valid version. "The Provider's offer is directed exclusively at entrepreneurs within the meaning of Section 1 of the Austrian Commercial Code (UGB). Consumers within the meaning of the Austrian Consumer Protection Act (KSchG) are excluded from use."

2. Amendments to the Terms and Conditions

The Provider is entitled to adapt and supplement these Terms and Conditions at any time.
The Provider shall inform existing Customers in good time of any significant or not merely insignificant amendment to the Terms and Conditions. Significant or not merely insignificant amendments are those that involve a change in the factual or legal situation. This amendment shall become effective if the Customer does not object within two (2) weeks of notification of the amendment. The Provider shall expressly point out to the Customer at the start of the period that silence on their part shall be deemed acceptance of the amendment to the contract. If the Customer objects within the deadline, the Provider has the option to terminate the contractual relationship in an orderly manner.
These contractual terms apply exclusively. Theoretical contractual terms of the Customer shall not apply. Counter-confirmations by the Customer with reference to their own business conditions are hereby expressly rejected.

2. Conclusion and Subject Matter of the Contract

1.  Conclusion of Contract

By signing the main contract (offer), the Customer accepts these General Terms and Conditions.

2. Subject Matter of the Contract

The Provider allows the Customer temporary access to the software solutions and cloud services provided by the Provider (hereinafter "software solutions offered by the Provider"). The Provider shall make the use of the software solutions offered by the Provider available to the Customer at the router output of the Provider's respective data center ("transfer point"). The software solutions offered by the Provider are operated by the Provider as a SaaS solution. During the term of the contract, the Customer is enabled to use the software solutions offered by the Provider, which are stored and run on the servers of the Provider or a service provider commissioned by the Provider, via an internet connection for their own purposes and to store and process their data with its help. The specific scope of services at the time the contract is concluded is described in the main contract (offer) concluded individually with the Customer.

3. Availability

1. The Provider does not warrant the data connection between the transfer point and the Customer's IT systems. It is the Customer's responsibility to establish the technical conditions to receive the software solutions offered by the Provider at the transfer point and to use them. The Provider advises the Customer that restrictions or impairments of the services provided may arise that are outside the Provider's sphere of influence. This includes, in particular, actions by third parties who do not act on behalf of the Provider, technical conditions of the internet that cannot be influenced by the Provider, as well as force majeure. The hardware and software and technical infrastructure used by the Customer can also have an impact on the Provider's services. Insofar as such circumstances have an impact on the availability or functionality of the service provided by the Provider, this shall have no effect on the conformity of the provided services with the contract.
   
   
   

2. Declaratively to Point 1, downtime caused directly or indirectly by any of the following causes shall in particular not be deemed a breach of this contract:

(i) Force Majeure event, 

(ii) improper use of the software solutions offered by the Provider by the Customer or by third parties;

(iii) failure or breakdown of the internet;

(iv) disturbance or failure of the Customer's computer systems or networks;

(v) scheduled maintenance work carried out in accordance with this contract.

3. The Provider may interrupt the provision of services to carry out maintenance work or updates. The Provider shall notify the Customer of the scheduled period of execution of the maintenance work/updates in a reasonable amount of time in advance.

4. The Customer is obliged to notify the Provider of function failures, malfunctions or impairments of the software solutions offered by the Provider immediately and as precisely as possible.

4. Obligations of the Customer

The Customer shall fulfill the obligations incumbent upon them for the provision and handling of this contract. The Customer shall provide their cooperation services free of charge and without explicit ordering by the Provider. The cooperation services are main contractual obligations of the Customer.

1. Provision of Information and Accesses 

The Customer undertakes to provide the Provider with all information (e.g. emails, DNS access, etc.) necessary for linking their Google Merchant Center as well as Google Ad Accounts with the software solutions offered by the Provider. Likewise, the Customer shall truthfully close to the Provider the number of Google Merchant Centers they are currently using. 

2.  Technical Requirements on the Customer's Side

The Customer shall ensure at their own expense that the technical requirements for using the software at the transfer point are met. This includes, in particular, an internet connection with sufficient bandwidth and latency.

3. Specific Obligations in the Google Universe

Since the provision of the Provider's services absolutely requires linking with Google systems, the Customer expressly undertakes to do the following:

• Administration: The Customer is solely responsible for the technical setup and administration of the Customer CSS Center and all associated Google accounts (e.g., role and rights allocation). In particular, the Customer must ensure that the necessary admin rights are granted to guarantee the functions of the software solution offered by the Provider. 

• Access Rights: The Customer is strictly prohibited from revoking existing administrator or access authorizations for the Customer CSS Center or the connected Google Merchant Centers from the Provider. If access is lost, the Customer must restore it immediately and with priority.

• Keyword Block: The Customer is prohibited from unilaterally changing keywords or domain names of the CSS site specified in coordination with the Provider.

4. other Obligations

The Customer shall inform the Provider immediately and in writing about:

(i) the abuse or suspicion of abuse of the contractually agreed service; 

(ii) a danger or suspicion of a danger to data protection compliance or data security that occurs within the scope of providing the contractually agreed service;

(iii) a danger or suspicion of a danger to the services provided by the Provider, e.g., through loss of access data or a hacker attack. The Customer bears sole responsibility for all consequences resulting from a failure to transmit the aforementioned information to the Provider or a delay in doing so.

The Customer is also particularly obliged:

(i) to protect the usage and access authorizations (especially passwords) assigned to them or the users as well as identification and authentication safeguards from access by third parties and not to pass them on to unauthorized users;

(ii) to provide a qualified contact person who is authorized to make all necessary decisions required for the provision of the contractually agreed service; 

(iii) to ensure that (e.g., when accepting texts and data of third parties on the Provider's servers) all industrial property rights and copyrights are observed;

(iv) to obtain the required consent of the respective person concerned, sensory that they collect, process, or use personal data within the scope of using the software and no statutory authorization applies;

(v) to refrain from attempting to unauthorizedly retrieve information or data, either themselves or through unauthorized third parties, or to interfere or let third parties interfere with programs operated by the Provider or to unauthorizedly penetrate data networks of the Provider.

5.  No Misuse

The Customer undertakes to use the services offered by the Provider only within the scope permitted by law and according to these provisions. Any abusive use leads to the exclusion of the usage right granted by concluding the contract. The Provider may deactivate the customer account of the corresponding Customer and extraordinarily terminate the contract after becoming aware of an abusive use. Any fees already paid in this case will not be refunded.
An abusive use exists in particular in the case of illegal uses, such as copyright violations. In addition, an abusive use consists of the provision, distribution or making available in another way of illegally acquired data as well as in the distribution or provision of data for illegal purposes. In particular, the following uses of the platform are abusive: 

(i) sending and storing viruses, worms, Trojans as well as harmful computer codes, files, scripts, agents or programs, 

(ii) uploading programs that are suitable for disrupting, impairing or preventing the operations of the Provider,

(iii) attempting to gain unauthorized access to the service or the software solutions offered by the Provider or to individual modules, systems or applications or to grant this to third parties

5. Contract Duration and Termination

1. The provision of the contractually agreed services shall take place from the date specified in the main contract (offer) initially for the duration of the term agreed in the main contract, unless another contract term was stipulated in the offer. During this minimum term, premature ordinary termination by either party is excluded.
   
   

2. The contract may be terminated by either party with a notice period of one month prior to the end of the minimum term to the end of the scheduled contract duration. If this does not happen, the contract is automatically extended by the original minimum term.
   
   

3. Extraordinary termination for good cause remains reserved for the Provider if the statutory requirements are met. A good cause for the Provider exists in particular if the Customer, despite warning, is in default with the payment of a due remuneration for more than two months. If the Customer is responsible for the reason for termination, the Customer is obliged to pay the Provider the agreed remuneration up to the date on which the contract would earliest end under an ordinary termination.

4. Termination declarations must be in writing to be effective. The receipt of the termination as an email to office@labelup.io satisfies the written form requirement.

6. Remuneration and Value Stabilization 

1. The payment period and amount of remuneration, as well as the method of payment, are based on the main contract (offer) individually concluded with the Customer.
   
   

2. Unless regulated in more detail in the main contract individually concluded between the parties, the entire amount due for the stipulated contract term shall be deemed due with a payment term of within 14 days of contract conclusion.
    

3. All prices of the Provider are fundamentally in EURO plus VAT to be borne by the Customer in the respective legally prescribed amount. The VAT is shown separately in the invoice.
   
   

4. If the Customer delays the payment of a due remuneration by more than two weeks, the Provider is entitled, after prior warning with setting a deadline and expiry of the deadline, to block access to the software solutions offered by the Provider. The Provider's claim for remuneration remains unaffected by the blocking. The Provider is also entitled (i) to demand default interest pursuant to Section 456 UGB and (ii) to suspend access to the software solutions offered by the Provider until all outstanding claims of the Provider (including claims for default interest) have been met by the Customer.
   
   

5. The Provider is entitled to adjust the continuous fees specified in the main contract once per quarter to changing market conditions or to technical innovations. The price adjustment is based on the change of the Consumer Price Index 2020 published monthly by the Federal Institution Statistics Austria, or an index replacing it, whereby upward fluctuations in the index number up to and including 5% are ignored. Increases are deemed accepted by the Customer from the start if they do not exceed 10% annually.
   The index number published for the month in which the offer submission date falls serves as the reference value (basis index) for value stabilization for the first adjustment of the fee. The value adjustment is based on the percentage difference between the target index and the basis index. 

7. Maintenance and Support, Product Synchronization and Data Volume

1. Unless otherwise regulated under Point IX Warranty, the Provider is not obliged to fix occurring errors, carry out maintenance work or provide technical or other support in relation to the software solutions offered by the Provider.
   
   

2. The software solutions offered by the Provider are provided on an "as is" basis. During the term of this contract, however, the Provider will, at its own discretion, maintain the software solutions offered by the Provider, as defined herein, by providing bug fixes, stability and performance improvements, and updates at its own discretion.
    

3. The Customer acknowledges that whenever the Provider has released a new version of the software, the latest version of the software must be used by all users and all obligations stipulated in the contract only apply to the latest version.
   
   

4. The Provider regularly synchronizes and updates the Customer's product range through automated retrievals from the connected Google Merchant Center accounts. This service is included within the agreed service package for a product range up to a total number of 5 million products per Customer. If the product range exceeds this limit, the Provider reserves the right to suspend the automatic updating of these products. Google CSS and the associated functions remain unaffected by this. Further synchronization and updating of the range exceeding 5 million requires a separate agreement via an additional package, which is individually calculated and contractually regulated.

8. Right to Use the Platform and Requirements for Contractual Use

1. The Customer receives the non-exclusive, non-sublicensable right, limited in time to the duration of this contract, to access the software solutions offered by the Provider for their own, internal business purposes within the framework of contextual and proper use and to use the functionalities offered by the software solutions offered by the Provider via a browser in accordance with these conditions. The Customer does not receive any further rights, in particular to the software solutions offered by the Provider, the associated software application, or the operating software.
   
   

2. If the contractual use of the software solutions offered by the Provider is impaired by industrial property rights of third parties without the Provider's fault, the Provider is entitled to refuse the services affected thereby. The Provider shall inform the Customer of this immediately and enable access to their data in a suitable manner. In this case, the Customer is not obliged to make further payments. Other claims or rights of the Customer remain unaffected.
   
   

3. In particular, the Customer may not use the software solutions offered by the Provider beyond the agreed scope of use or allow them to be used by third parties or make them accessible to third parties. In particular, the Customer is not permitted to duplicate, sell, temporarily assign, rent out, or lend contents of the software solutions offered by the Provider or parts thereof.

9. Warranty

1. The Customer acknowledges that software is never completely free of defects, errors and bugs. The statutory warranty is modified to the effect that the Provider only guarantees that the software essentially corresponds to the technical description. The correction of minor bugs or errors is excluded from the warranty right. The nature, scope, and timing of bug updates are solely at the discretion of the Provider.

2. The Customer acknowledges that software is never completely free of security vulnerabilities. The Provider guarantees compliance with customary market security standards appropriate to the purpose of the software. However, a strict warranty or representation that the software solutions offered by the Provider are absolutely break-in or error-free is excluded.

3. The software is provided with the properties and functionalities agreed in the technical description or in the individual main contract. Any further warranty for general merchantability or the suitability of the software for a specific, subjectively intended purpose of the Customer that has not been explicitly agreed in writing is excluded.

4. The Customer acknowledges and agrees that it is possible that the software solutions offered by the Provider may occasionally be unavailable to allow for maintenance work or other development activities. Such scheduled downtimes shall not be deemed a defect or breach of contract and shall not justify any claims by the Customer (such as reduction or damages), provided they do not exceed a total of 8 hours per calendar month. The Provider shall inform the Customer about planned maintenance work in good time in advance (preferably via email or system notification).
   
   

5. The Provider's warranty is limited to the software essentially fulfilling the functions defined in the service description. Rights due to minor defects (e.g. mere visual deviations or minimal delays that do not noticeably impair the main use) are excluded. 

10. Liability

1. The Provider's liability is limited to intent and gross negligence for contract-typical, foreseeable damages. The Provider's liability for damages caused by only minor negligence is in any case excluded.

2. The Provider makes no representation that the Google CSS program or its terms of use will remain permanently and unchanged or that the functionality of the CSS is continuously guaranteed. In particular, the Provider assumes no liability, warranty or responsibility for Google accounts of the Customer that have been suspended, blocked or restricted by Google (esp. Google Merchant Center, Google Ads Accounts, Google MCA) as well as for all resulting direct or indirect consequences and damages (such as lost profits, advertising outages, lost sales, or business interruptions). The risk of regulatory, automated, or arbitrary measures on the part of Google shall be borne solely by the Customer in relation to the Provider.
    

3. Should the terms of the Google CSS program be significantly amended or if the Provider loses its CSS status, the Provider has the right to migrate all Google Merchant Centers of the Customer back to Google Shopping Europe.
   
   

4. The Provider explicitly does not guarantee a saving of the CPC (cost-per-click) of up to 20% in the course of purchasing the comparison shopping service. This is strongly dependent on external parameters and cannot be influenced by the Provider.
   
   

5. Links to other websites and references to information sources serve exclusively for the user's convenience. The Provider has not conducted investigations regarding the accuracy and / or completeness or functioning of these other websites and information sources. The Provider is therefore not liable for damages that may be related to the inaccuracy and / or incompleteness of the information provided there and / or the non-functioning of these other websites and information sources.
    

6. Neither party shall be liable to the other party for incidental, special, exemplary, or consequential damages, including loss of income, profits, revenue, or business interruption, or costs for substitute services or other economic losses, regardless of whether the party concerned was advised of the possibility of such damages or not. The total liability of the Provider towards the Customer as well as towards third parties from or in connection with this contract, access or use of the software solutions is limited – regardless of the legal ground and form of the claim (whether in contract, tort, strict liability, or other claims) – per contract year to that total sum which the Customer actually paid to the Provider in the twelve (12) months immediately preceding the occurrence of the damaging event. This limitation of liability and all exclusions of liability agreed in these conditions explicitly do not apply to damages caused intentionally by the Provider, its legal representatives or its vicarious agents, as well as personal injury and mandatory legal claims, in particular under the Austrian Product Liability Act (PHG).“
    

7. If damages to the Customer result from the loss of data, the Provider is not liable for this, insofar as the damages would have been avoided by a regular and complete backup of all relevant data by the Customer. The Customer shall perform or have performed a regular and complete data backup themselves or through a third party and is solely responsible for this.

11. Indemnification 

The Customer undertakes to indemnify and hold harmless the Provider from all claims by third parties, including reasonable or statutory legal pursuit costs, based on a non-contractual, abusive, and/or unlawful use of the software solutions offered by the Provider and their contents by the Customer, or which occur with their approval, or which arise in particular from data protection, copyright, or other legal disputes associated with the use of the software solutions offered by the Provider. If the Customer detects or must detect that such a violation is imminent, the obligation exists to notify the Provider immediately. The Customer supports the Provider in defending these claims, in particular by providing all information required for the defense. The Customer is obliged to compensate for the damage incurred by the Provider through the successful enforcement of such claims by third parties.

12. Data Protection

1. Insofar as the Provider can access personal data of the Customer or from their area, the Provider acts exclusively as a data processor and will process and use this data only for contract execution.  In this case, a separate data processing agreement pursuant to Art 28 GDPR is concluded.

2. The Customer acknowledges, understands and agrees that the Provider may use, process and exploit customer data transmitted by the Customer to the software solutions offered by the Provider or collected by the Provider on an anonymized basis for any purpose. 

3. The Provider processes personal data of the Customer necessary for the Google Content API for Shopping and the Google Ads API to obtain access to the Google MCA account and the Google Ads account. Personal data of the Customer is generally not passed on to third parties by the Provider. 

4. For the relationship between the Provider and the Customer, the following applies: The Customer remains the controller both generally in the order relationship and in the sense of data protection law. If the Customer processes personal data in connection with the contract (including collection and use), they guarantee that they are authorized to do so according to the applicable provisions, in particular data protection laws, and in the event of a data protection breach, they shall indemnify the Provider from claims of third parties. The Customer assures that they have created all necessary conditions (e.g. by obtaining consent declarations) so that the Provider can also perform the agreed services in this respect without violating data protection regulations.

5. The Customer shall responsibly examine, process and answer any queries, requests and claims of the data subject (also) when the data subject makes claims against the Provider.

6. Usage Analysis and Session Recording.
   To improve the user experience and analyze user behavior, we reserve the right to temporarily record interactions within the web application of the software solution offered by the Provider (e.g. click behavior, mouse movements, navigation paths).

These recordings take place without storing sensitive or personal content (e.g. passwords, text inputs in forms, etc.) and are used exclusively internally. The data is stored for a maximum of 5 days and deleted automatically thereafter.

The legal basis is our legitimate interest pursuant to Art. 6 para. 1 lit. f GDPR.

Users have the right to object to this processing at any time by sending an email to office@labelup.io. 

13. Reference Customers 

The Customer grants the Provider the non-limited right to use the Customer as a reference customer for marketing purposes using their company name and logo, specifically but not exclusively on websites, trade fair banners, online presentations, and in print materials.

14. Final Provisions

1. Rights and obligations from this agreement are not affected by transformations of form or restructuring of the parties' operating organization, even if these lead to the spin-off of business units or the creation of new legal entities.
   
   

2. The rights and obligations arising from the contract are subject to the laws of the Republic of Austria, excluding the UN Convention on Contracts for the International Sale of Goods, international private law and conflict of law rules. The place of jurisdiction for all legal disputes between the parties arising from or in connection with the main contract is the court with subject-matter jurisdiction in Vienna, Austria.

Should any individual provision of this agreement be invalid, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision of these Terms and Conditions shall be replaced by a valid and enforceable provision whose effects come closest to the economic objective pursued by the contracting parties with the invalid or unenforceable provision.