Terms of Service (250305)

0. Scope of Application

0.1 The following General Terms and Conditions (GTC) apply exclusively to legal transactions between Lupinum OG (hereinafter "Lupinum") and entrepreneurs with registered offices in Austria.

0.2 An entrepreneur is a natural or legal person or a partnership with legal capacity who, when concluding a legal transaction, acts in the exercise of their independent professional or commercial activity.

0.3 These GTC do not apply to contracts with consumers within the meaning of the Consumer Protection Act (KSchG).

1. Validity, Contract Conclusion

1.1 The company Lupinum OG (hereinafter "Lupinum") provides its services exclusively on the basis of the following General Terms and Conditions (GTC). These apply to all legal relationships between the agency and the client, even if they are not explicitly referred to.

1.2 The version valid at the time of contract conclusion is decisive. Deviations from these and other supplementary agreements with the client are only effective if confirmed in writing by Lupinum.

1.3 The contractual basis of the business relationship between Lupinum and the client are (i) the written individual agreement ("Individual Agreement") and (ii) these GTC (all hereinafter also "Contract" or "Contractual Basis"). In case of contradictions or deviations, the written Individual Agreement and then the GTC shall be decisive. With the client's declaration of contract, the Contractual Basis is acknowledged. They apply to all future contracts, even if they are not explicitly agreed upon again. The Contractual Basis also applies to contract changes made after contract conclusion.

1.4 Any terms and conditions of the client will not be accepted, even if known, unless otherwise explicitly agreed in writing in individual cases. Lupinum explicitly objects to the client's GTC. No further objection to the client's GTC by Lupinum is required.

1.5 Lupinum has the right to change the GTC at any time. The client already agrees to such changes. Changes to the GTC will be notified to the client and are considered agreed for all present and future business relationships if the client does not object to the changed GTC in writing within 14 days; the client will be explicitly informed about the significance of silence and the specifically changed clauses in the notification. This consent fiction does not apply to changes of essential service contents and fees. If the client objects in writing to the new version of the GTC within the specified period, the GTC will continue to apply in the previous version. The current GTC can be accessed on Lupinum's website.

1.6 Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions and the contracts concluded on their basis. The invalid provision shall be replaced by a valid one that comes closest to the meaning and purpose.

1.7 Lupinum's offers are non-binding. Price lists are subject to price changes, errors, and printing mistakes.

1.8 In these GTC, the term 'software' also includes organizational concepts and tools that support the development, planning, and use of software.

2. Concept and Idea Protection

If the potential client has previously invited Lupinum to create a concept, and Lupinum accepts this invitation before the conclusion of the main contract, the following regulation applies:

2.1 Through the invitation and Lupinum's acceptance, the potential client and Lupinum enter into a contractual relationship ("Pitching Contract"). This contract is also based on the GTC.

2.2 The potential client acknowledges that Lupinum already provides cost-intensive preliminary services with the concept development, although the client has not yet assumed any service obligations.

2.3 The concept is subject to the protection of copyright law in its linguistic and graphic parts, insofar as they reach work height. Use and editing of these parts without Lupinum's consent is not permitted to the potential client based on copyright law.

2.4 The concept also contains advertising-relevant ideas that do not reach work height and therefore do not enjoy the protection of copyright law. These ideas stand at the beginning of every creation process and can be defined as the spark of everything later produced and thus as the origin of marketing strategy. Therefore, those elements of the concept that are distinctive and give the marketing strategy its characteristic imprint are protected. Ideas within the meaning of this agreement include, in particular, advertising slogans, advertising texts, graphics and illustrations, advertising materials, etc., even if they do not reach work height.

2.5 The potential client undertakes to refrain from using the creative advertising ideas presented by Lupinum as part of the concept for commercial purposes outside the corrective of a main contract to be concluded later or to have them used or to utilize them or have them utilized.

2.6 If the potential client is of the opinion that Lupinum presented ideas to them that they had already come up with before the presentation, they must inform Lupinum within 14 days after the day of the presentation by email, stating evidence that allows a chronological assignment.

2.7 Otherwise, the contracting parties assume that Lupinum presented a new idea to the potential client. If the idea is used by the client, it is to be assumed that Lupinum deserves credit.

2.8 The potential client can be released from their obligations under this point by paying appropriate compensation, which is calculated on a case-by-case basis, plus 20% VAT. The release only takes effect after Lupinum has received the full payment of the compensation.

3. Scope of Services, Order Processing, and Client's Cooperation Obligations

3.1 General Provisions

3.1.1 The scope of services results from the service description in the Individual Agreement or any order confirmation by Lupinum, as well as any briefing protocol.

3.1.2 Lupinum provides the following main services:

a) Web Development and Design

Creation of websites
Content Management System (CMS) implementation
CMS training for clients
Social media integration
Blog and wiki systems
Dark mode implementation
Multilingualism
Accessibility
Responsive design
SEO optimization
Custom feature development

b) Content Creation

Text design and copywriting
Video production including filming, video editing, color grading, sound mixing, motion graphics & animations
Photography

c) Design

Visual brand identity
Brand assets
Custom illustrations
Print design (flyers, folders, business cards, notepads, labels...)

d) IT Services and Software Training

Development of organizational concepts
Global and detailed analyses
Creation of custom programs
Delivery of library (standard) programs
Acquisition of usage rights for software products
Assistance with implementation
Program maintenance

3.2 General Cooperation Obligations of the Client

3.2.1 Checking and Approval of Services

a. All services of Lupinum (especially all preliminary drafts, sketches, clean drawings, brush prints, blueprints, copies, color prints, and electronic files) must be checked by the client.

b. Approval must be given within 2 weeks of receipt by the client. For more complex drafts, partial services, and other requests, a period of maximum 4 weeks applies for client feedback.

c. After these deadlines have passed without client feedback, they are considered approved by the client.

d. For program acceptance, the client shall provide appropriate test data and testing options during normal working hours. The client tests the software using the agreed test data. Acceptance may not be refused in case of non-essential defects.

3.2.2 Information and Provision Obligations

a. The client will make all information and documents necessary for the provision of the service available in a timely and complete manner.

b. The client will inform about all circumstances that are relevant for the execution of the order, even if these only become known during the execution of the order.

c. The client bears the expense resulting from work having to be repeated or delayed due to their incorrect, incomplete, or subsequently changed information.

d. The client will name a contact person familiar with the situation and authorized for the entire specified project duration, who can provide binding information and orders in case of inquiries.

3.2.3 Rights Clearing and Legal Consequences

a. Duty to check:

The client is obliged to check the documents provided for the execution of the order (photos, logos, etc.) for any copyright, trademark, identification rights, or other third-party rights (rights clearing).
The client guarantees that the documents are free from third-party rights and can therefore be used for the intended purpose.
The client is solely responsible for content provided by them.

b. Liability and indemnification:

Lupinum is not liable in case of slight negligence or after fulfilling its warning obligation – in any case in the internal relationship with the client – for a violation of such rights of third parties by documents provided.
If Lupinum is claimed by a third party for such a rights violation, the client shall indemnify and hold Lupinum harmless.
The client shall reimburse Lupinum for all disadvantages that arise from a third-party claim, in particular the costs of appropriate legal representation.
The client shall fully indemnify and hold Lupinum harmless for all third-party claims, especially from the violation of copyright, usage, or personal rights.

c. Support obligation:

The client undertakes to support Lupinum in the defense against any claims by third parties.
The client shall provide Lupinum with all documents for this purpose without being asked.

3.2.4 Rights of Lupinum in Case of Breach of Duty

a. In case of violation of the client's cooperation obligations, Lupinum has the right to withdraw according to § 1168 Para. 2 ABGB after setting a grace period of at least 4 weeks while maintaining the full entitlement to remuneration. An offset according to § 1168 Para. 1 ABGB is excluded.

b. For questionable content:

If Lupinum considers the content provided by the client to be questionable, especially because there is suspicion of infringement of copyright, usage, or personal rights or because of suspicion of other illegality or immorality, it has the right not to incorporate this content and to perform the rest of the work as agreed.
Lupinum also has the right, at its discretion, to withdraw from the contract with immediate effect. In this case, it is entitled to request proportional remuneration for the work performed so far.

3.3 Specific Service Areas

3.3.1 Creative Services (Video, Design, Illustration, and Print)

A. Raw Data and Project Files

Ownership: All raw data, including uncut video material, audio tracks, project files, working files, and source files remain the property of Lupinum. The client acquires exclusively the usage rights to the final media files listed in the respective Individual Agreement. The client can acquire ownership of the raw data through a separate agreement and for an additional fee.
Storage: Lupinum keeps the raw data free of charge for a period of 12 months after project completion. Extended storage of the data can be agreed upon for an annual fee. After the archiving period, Lupinum is entitled to delete the material.

B. Revision Cycles and Acceptance

Standard scope: The project scope includes two standard revision cycles. The first revision cycle allows comprehensive feedback within the framework of the original concept. The second revision cycle is limited to feedback on changes made after the first revision cycle.
Additional changes: Further change requests that go beyond the two standard revision cycles will be charged additionally according to effort.
Acceptance period: The acceptance of the finished work must take place within 2 weeks. After this period, the work is considered accepted.

C. Filming Permits and Locations

Support services: Lupinum assists in obtaining necessary filming permits. The costs for locations and permits are borne by the client.
Special circumstances: For outdoor shoots, weather-related postponements may be necessary. These must be accepted by the client and do not entitle to compensation claims.

D. Output Formats

Delivery scope: Lupinum delivers the work in the agreed formats. For videos, these are usually the common aspect ratios (16:9, 9:16, 1:1) as well as video formats such as MP4 or MOV in the agreed resolutions. For design and print work, print-ready files are delivered in the agreed formats. Illustrations are provided in the agreed file and size formats.
Subsequent adjustments: Format adjustments requested after completion will be charged separately.
Print processing: Print processing is done by the client unless explicitly agreed otherwise.

3.3.2 Web Development and Technical Services

A. Project Files and Access Rights

Source Code and Software Versions:
- The source code remains the property of Lupinum unless otherwise agreed in writing
- The client only gets access to the deployed version of the software on the web
- This version is provided and maintained for the duration of the active maintenance contract
- The client can acquire the source code through a separate agreement and additional compensation
Access Management and Storage:
- All access data for development environments, databases, and server infrastructure remain with Lupinum
- Lupinum stores the source code free of charge for 12 months after project completion
- Further storage or transfer after this period requires a separate agreement

B. Test Phases and Project Acceptance

Three-stage test process:
- Development phase: Internal tests by Lupinum
- Preview/staging phase: The client gets access to the test version on a staging server for verification
- Production phase: Final tests after publication
Review and acceptance obligations:
- The client must actively test the software in the staging and production phase
- The final acceptance must take place within 2 weeks after going live
- Errors reported after acceptance are considered new change requests and will be charged separately
For tests in live operation, the responsibility for data backup lies with the client. Test data must adequately represent the real use cases.

C. Traffic and Usage Limits

Basic traffic regulations:
- The agreed traffic limits are specified in the maintenance contract
- In case of exceeding the limits, the client bears the additional costs
Measures for traffic excess:
- Lupinum continuously monitors traffic usage
- Significant traffic spikes incur additional costs for the client
- In case of serious exceeding of technical limits, Lupinum can temporarily take the website offline without warning
- Resumption of operation takes place after clarification of technical and commercial aspects
Notification and communication:
- Lupinum informs the client when approaching traffic limits
- Joint coordination on necessary measures for traffic optimization

D. Hosting and Infrastructure

1. General Provisions

a. Lupinum advises on the selection of suitable hosting solutions.

b. The costs for hosting, domains, SSL certificates, and other technical infrastructure are borne by the client.

c. Unless otherwise agreed, hosting is carried out on a third-party server.

2. Contract Term and Termination

a. Web hosting contracts:

Are concluded for one year
Can be terminated by both parties at the end of the contract term with a notice period of two months
Are automatically extended for another year in the absence of timely termination

b. Extraordinary termination:

In case of payment default of more than 2 months after invoicing, Lupinum has the right to immediately terminate the hosting contract

3. Liability and Availability

a. Liability exclusions:

Lupinum does not guarantee the availability of third-party services
Lupinum has no influence on the availability of the internet outside its own sphere of influence
For hosting by third-party providers, they bear the sole responsibility for availability
Lupinum assumes no responsibility for damages that may arise to the client through misuse of connections (including virus damage)

b. Indemnification:

The client indemnifies Lupinum from all claims regarding the actual availability of the produced websites

4. Security and Access Restrictions

a. In case of endangering the security of network operation or the maintenance of network integrity, Lupinum is entitled to temporarily restrict access to services as necessary.

E. Domains

1. Registration and Management

a. Lupinum can register and manage domains on behalf of the client.

b. Power of representation:

Lupinum is explicitly authorized by the client to express terminations
This authorization also applies if Lupinum is not registered as the domain owner but only as Tech-C or Admin-C.

2. Contract Term and Termination

a. Regular termination:

The client is entitled to terminate the domain at the end of the contract term with a notice period of two months
In the absence of timely termination, the contractual relationship is automatically extended for another year

b. Extraordinary termination:

In case of payment default of more than 2 months after invoicing, Lupinum has the right to immediately terminate the client domain
The client will fully reimburse Lupinum for all expenses and damages resulting from such termination

3. Legal Aspects and Liability

a. Verification obligations:

Lupinum is not obliged to check the legal admissibility of the domain
This applies in particular to aspects of names, trademarks, or competition law

b. Liability and indemnification:

The client holds Lupinum completely harmless regarding the legal admissibility of the domain
The responsibility for the legal admissibility of the chosen domain lies with the client

4. Payment Terms

a. The costs for domain registration and management are borne by the client.

b. Payment deadlines:

Invoices must be paid within 2 months after invoicing
Exceeding this deadline may result in the consequences mentioned under point 2b

F. Maintenance and Updates

1. Maintenance Contracts

a) Scope: Maintenance contracts can include the following services:

Regular security updates
System and software updates
Backup management
Performance monitoring
Support hotline

b) Term and termination:

Maintenance contracts are, unless otherwise agreed, concluded for a period of 12 months.
Termination must be in text form (e.g., email) with a notice period of 3 months to the end of the contract.
Without timely termination, the maintenance contract is automatically extended for another 12 months.

2. Free and Paid Updates

a) Free updates:

Security-relevant updates within the warranty period
Bug fixes within the agreed warranty period

b) Paid updates:

Updates after the warranty period
Functional extensions
Adjustments due to changed requirements of the client
Without a maintenance contract, updates and maintenance work are charged according to effort

3. Update Obligation

The update obligation according to § 7 VGG is explicitly excluded. Lupinum does not assume any obligation to provide free updates after the warranty period, unless explicitly agreed otherwise.

4. Client Obligations

The client is obliged to:

Allow the installation of security-relevant updates in a timely manner
Create system requirements necessary for updates
Perform appropriate data backups before updates

5. Disclaimer

Lupinum assumes no liability for damages caused by non-installed updates or by incompatibilities with the client's system environment.

G. Browser and Device Compatibility

Development standards: Development is done for the current versions of the agreed browsers at the time of development. Lupinum tests the development on the most common devices and screen sizes to ensure broad compatibility.
Subsequent adjustments: Subsequent adjustments for new browser versions or devices will be charged separately. This also applies to adjustments that become necessary due to updates of browsers or operating systems.

H. Data Protection and Security

Development standards: Lupinum develops according to current security standards and takes into account common best practices in the industry. The client is responsible for the legally compliant collection and processing of user data.
Implementation support: Lupinum supports the implementation of cookie banners, privacy policies, and opt-in/opt-out mechanisms. The final legal review of these implementations is the responsibility of the client.

I. Documentation and Training

Standard services: Lupinum creates and hands over technical documentation (user manuals, detailed documentation) only if explicitly agreed.
Training services: Training for administrators and editors is charged according to effort and can be individually adapted to the needs of the client.
Content Management System (CMS) and training: Lupinum implements the agreed CMS and conducts training for the employees designated by the client. The training content is individually tailored to the client's needs, whereby Lupinum does not guarantee the learning success of individual participants. The client must ensure that the training participants have basic PC skills. These skills are a prerequisite for successful participation in the training.

J. System Passwords

Any system passwords for services individually created for the client will only be disclosed to them if a) no maintenance or support contract exists (anymore) for the component affected by the system password, b) all payment obligations of the client towards the contractor have been fulfilled, c) the contractor needs the password to use, adapt, or further develop the service in accordance with the contractual purpose, and d) they provide a warranty waiver to the contractor.

K. Standard Programs and Libraries

When ordering library (standard) programs, the client confirms with the order knowledge of the scope of services.
The client bears the risk that the programs meet their requirements and are compatible with their existing systems.

3.3.3 SEO Services

A. Service Provision and Guarantees

Basic service provision: Lupinum provides search engine optimization services (SEO) to the best of its knowledge and belief, taking into account current standards and practices in the industry. A guarantee for certain placements or results in search engines is explicitly not assumed.
External influencing factors: The success of SEO services depends on various factors that are outside Lupinum's sphere of influence. These factors include in particular:

The constantly changing algorithms of search engines
The current and changing competitive situation in the relevant market environment
The technical conditions and limitations of the client's website
External factors such as industry trends and user search behavior

B. Duties and Responsibilities of the Client

Provision of content: The client ensures that all content provided by them and technical requirements for the implementation of SEO measures are suitable and legally permissible. This includes in particular compliance with copyright provisions, trademark rights, and other industrial property rights.
Legal safeguarding: The client undertakes to indemnify Lupinum from all third-party claims resulting from the violation of its obligations. This concerns in particular claims arising from the use of illegal or unapproved content.

C. Communication and Cooperation

Reporting: Lupinum will regularly inform the client about the measures taken and their results. This reporting includes:
- An overview of the optimization measures carried out
- Analysis of relevant metrics and developments
- Recommendations for further optimizations
- Documentation of achieved improvements
Cooperation obligations: The client undertakes to provide Lupinum with all necessary information and access required for the implementation of SEO measures. This includes in particular:
- Access to relevant web analysis tools
- Administrative access to the website
- Access to content management systems
- Provision of necessary access data and permissions
- Timely approval of proposed optimization measures
Implementation support: The client will implement the SEO measures proposed by Lupinum in a timely manner or enable their implementation. In case of technical limitations or other obstacles, the client will inform Lupinum immediately so that alternative solutions can be developed.

1. Scope of Services

a. Lupinum offers the following social media services:

Setup and maintenance of social media profiles
Development and implementation of advertising campaigns
Content creation and management
Community management and moderation
Monitoring and reporting

2. Platform-specific Conditions

a. Terms of use:

Lupinum works on the basis of the terms of use of the respective social media platforms
The client acknowledges with the order that these terms of use co-determine the rights and obligations of the contractual relationship
Lupinum cannot guarantee compliance with the terms of use due to their frequent changes and sometimes contradictory nature

b. Platform risks:

The providers reserve the right to reject or remove advertisements and appearances without giving reasons
There is no obligation for platforms to forward content to users
In case of user complaints, content is often immediately removed, even if a counter-statement is possible
The permanent availability of campaign content cannot be guaranteed

3. Legal Aspects and Liability

a. Copyright and third-party rights:

The functionality of social media platforms can lead to unintentional legal violations
Due to the speed of the media, a complete verification of all content is not possible
The client is responsible for clearing the rights of the content provided by them

b. Disclaimer:

Lupinum is not liable for the groundless removal of content by platform providers
No liability is assumed for damages caused by functional changes or restrictions of the platforms
Liability is excluded in case of technical disruptions or failures of the platforms

4. Risk Notes and Risk Management

a. Risk education:

Lupinum informs the client about concrete risks before the campaign starts
Specific risks are documented and discussed with the client
Potential legal violations are identified and communicated in advance

b. Risk acceptance:

If the client decides to carry out the campaign after being informed about specific risks, this is considered risk acceptance
With risk acceptance by the client, Lupinum has fulfilled its contractual obligations regarding risk education

5. Monitoring and Quality Assurance

a. Lupinum conducts regular monitoring of the campaigns:

Monitoring of campaign performance
Observation of user reactions
Checking for potential conflicts or problems

b. Measures in case of problems:

Quick response to user complaints
Adjustment of campaign content if necessary
Proactive information of the client in case of relevant incidents

3.3.5 IT Services

1. Scope of Services

a. Lupinum offers various IT services within the framework of web development and media work.

4. Third-party Services / Commissioning of Third Parties

Service provision: Lupinum is, at its discretion, entitled to perform the service itself, to use knowledgeable third parties as vicarious agents for the provision of contractual services, and/or to substitute such services ("third-party service").
Commissioning modalities: The commissioning of third parties within the framework of a third-party service takes place either in their own name or in the name of the client, the latter after prior information to the client. Lupinum will carefully select these third parties and ensure that they have the required professional qualification.
Contractual obligations: The client must enter into obligations towards third parties who have been named to them and which extend beyond the contract term. This explicitly also applies in the case of termination of the agency contract for good cause.

5. Project Process and Service Agreement

5.1 General Provisions

5.1.1 The scope of services to be provided is specified in the Individual Agreement, which is usually based on an offer. Services that are not explicitly promised in the offer and/or the Individual Agreement do not become part of the contract and are excluded from the scope of services, even if the template used contains or would allow more extensive functions.

5.1.2 Lupinum is entitled to have the tasks incumbent upon it performed in whole or in part by third parties (see 3.4).

5.1.3 As a rule, the project schedule is defined in the offer and/or the Individual Agreement, from which in particular the scope of services/partial services, any project packages, and the intended time schedule result.

5.1.4 Specified delivery or service periods are, unless explicitly agreed as binding, only approximate and non-binding. The proposed time schedule serves only as a rough orientation of the intended completion of services/partial services. In case of a delay of not more than one month, the client is not entitled to make claims due to service delay.

5.1.5 If the delivery/service is delayed for reasons for which Lupinum is not responsible, such as events of force majeure and other unforeseeable events that cannot be averted with reasonable means, the service obligations are suspended for the duration and to the extent of the obstacle, and the deadlines are extended accordingly. If such delays last more than two months, the client and Lupinum are entitled to withdraw from the contract (for details see 6.4).

5.1.6 If Lupinum is in default, the client can only withdraw from the contract after setting a reasonable grace period of at least 14 days in writing to Lupinum and this has elapsed fruitlessly. Claims for damages by the client due to non-fulfillment or delay are excluded, except in case of proof of intent or gross negligence.

5.1.7 If the client wishes subsequent changes and/or additions to the content or the connection of further tools, etc., which are made in modification of the agreed services, or after partial acceptance has been made, this must be agreed separately and in writing. The associated additional expense will be invoiced separately.

5.2 Acceptance of Services/Partial Services

5.2.1 If the services consist in the production of a work (e.g., creation of a website), Lupinum will offer the work to the client for acceptance after its completion.

5.2.2 The client is obliged to accept the work offered for acceptance and to confirm the acceptance in writing upon request, provided it is not afflicted with significant defects.

5.2.3 Significant defects are those that significantly impair the functionality or the agreed purpose of use of the work. Insignificant defects do not entitle to refuse acceptance and are to be documented in an acceptance protocol.

5.2.4 Acceptance is considered to have taken place if: a) the client explicitly declares acceptance, b) the client puts the work into use or makes it productive, c) the client does not respond to the offer for acceptance within 14 days, d) the client refuses acceptance without stating significant defects, or e) the client pays the invoice without reservation.

5.2.5 Acceptance is associated with the handover of the work to the client. The service obligation is considered fulfilled. From this point on, the client bears the risk of accidental loss.

5.2.6 If the work consists of several partial services, Lupinum has the right to request acceptance of each partial service. The unreserved payment of a partial invoice is considered acceptance of the relevant partial service.

5.2.7 Lupinum is entitled to issue partial invoices for partial acceptances. In case of payment default of more than 14 days, further service provision can be refused until payment. After a further grace period of at least 14 days, Lupinum is entitled to withdraw from the contract while maintaining the claim to remuneration for the entire work.

5.2.8 After the provision of the last partial service, a final acceptance of the entire work must be carried out, in which, however, only the integration of the partial services and the overall functionality are checked.

5.2.9 If the client refuses acceptance due to significant defects, these must be specified in detail in writing. Lupinum is entitled and obliged to remedy these defects within a reasonable period and to offer the work for acceptance again.

5.2.10 In case of payment default of more than 14 days for the final invoice, Lupinum is entitled to take the website offline without further warning, provided it is hosted by the agency. After full payment, the website will be put online again immediately.

5.3 Project Packages

5.1 Project packages are explicitly designated as such in the offer and/or the Individual Agreement, and the scope of a project package is precisely defined.

5.2 The schedule for the completion of project packages is determined together with the client at the beginning of the project. Should the client not fulfill their cooperation obligations for the completion of a project package, Lupinum reserves the right to set the completion of this project package to any date. If an earlier date is desired, additional costs may be charged.

5.3 Upon completion of a project package, acceptance must be carried out.

5.4 After acceptance of a project package, a partial invoice is issued, which the client must pay.

5.5 Only after full payment of the partial invoice for the project package is Lupinum obliged to provide further services.

6. Premature Termination

6.1 Lupinum is entitled to dissolve the contract for important reasons with immediate effect. An important reason exists in particular if

a) the execution of the service becomes impossible for reasons for which the client is responsible or is further delayed despite setting a grace period of 14 days; b) the client, despite written warning with a grace period of 14 days, continues to violate essential obligations from this contract, such as payment of a due amount or cooperation obligations. c) justified concerns regarding the creditworthiness of the client exist and the client neither makes advance payments at Lupinum's request nor provides a suitable security before Lupinum's service;

6.2 Should the execution of the order not take place due to circumstances for which the client is responsible, although Lupinum was ready to perform, Lupinum reserves the right to consider the contract as canceled. In this case, Lupinum is entitled to the agreed remuneration for the services to be provided.

6.3 Cancellations by the client are only possible with Lupinum's written consent. If Lupinum agrees to a cancellation, it has the right to charge, in addition to the services rendered and costs incurred, a cancellation fee in the amount of 30% of the not yet invoiced order value of the total project.

6.4 Premature Termination in Case of Severe Service Obstacles

a) In case of a severe service obstacle that makes the continuation of the contract impossible or significantly more difficult, both contracting parties are entitled to prematurely terminate the contract. Severe service obstacles include in particular:

Serious illness, inability to work, or death of Lupinum's project manager
Natural disasters, epidemics, pandemics
War conflicts, terrorist acts
Official orders or legal prohibitions
Other unforeseeable, unavoidable, and severe events

b) The termination can take place if the delay due to a severe service obstacle according to point 6.4 a) lasts longer than 2 months.

c) In case of premature termination for these reasons, the client is entitled to:

Handover of all work results created up to that point
Proportional refund of payments already made for services not yet provided
Support in the transfer of the project to another service provider

d) The cancellation fee specified in section 6.3 does not apply in this case.

7. Fee

7.2 The fee is understood as a net fee plus statutory value-added tax. Unless explicitly agreed otherwise, Lupinum is entitled to a market-standard fee for the services provided and for the transfer of copyright and trademark usage rights.

7.3 Additional costs and disbursements: All services of Lupinum that are not explicitly covered by the agreed fee will be charged separately. Additional disbursements (e.g., travel, meal, or accommodation costs) shall be borne by the client. Costs for equipment rental, locations, performer fees, and third-party services will be charged based on actual expenses.

7.4 Cost estimates from Lupinum are non-binding. If it becomes apparent that the actual costs will exceed those estimated in writing by more than 15%, the client will be notified. The client's consent is deemed given if they do not object within three working days. For deviations up to 15%, no separate notification is required. Cost estimates are considered non-binding.

7.5 If the client unilaterally changes or cancels work that has been commissioned without involving Lupinum - regardless of the ongoing support by Lupinum - they must pay Lupinum for the services rendered according to the fee agreement and reimburse all costs incurred. Unless the cancellation is justified by a grossly negligent or intentional breach of duty by Lupinum, the client must also reimburse Lupinum for the entire fee (commission) agreed for this order, whereby the credit compensation of § 1168 AGBG is excluded. Furthermore, Lupinum must be indemnified and held harmless regarding any claims of third parties, in particular from contractors of the agency. By paying the fee, the client does not acquire any usage rights to work already performed; concepts, drafts, and other documents that have not been executed must rather be returned to the agency immediately.

7.6 Lupinum can request an advance payment of 40% of the total order volume and is not obliged to begin providing the service before payment of the advance. The client is not entitled to offset claims against Lupinum, unless these have been judicially determined or expressly acknowledged in writing by Lupinum. A right of retention is excluded.

7.7 After completion of the two standard revision cycles, changes will be charged at the current hourly rate.

7.8 Adjustments due to price increases a) Lupinum is entitled to pass on price increases for purchased services (e.g., domains, templates) to the client. The client will be informed in advance if possible and has a right of withdrawal within 7 days. If no objection is made, the price increase is considered accepted. b) For contracts for an indefinite period as well as for contracts with automatic extension of the contract term, the agency is entitled to make an appropriate price adjustment annually, taking into account the consumer price index. In addition, the agency is entitled to make an appropriate price adjustment after conclusion of the contract if the costs of the services increase by more than 3% without this being influenceable by the agency.

7.9 If additional effort is unavoidable, Lupinum will inform the client in a timely manner. Without the client's consent, Lupinum is entitled to charge for the unavoidable additional effort, provided it was not caused by Lupinum.

7.10 If a flat rate/hour pool is agreed for a certain period, this serves to secure the minimum availability of Lupinum for the client in the respective period. In the case of unused hours, these hours are therefore not transferable to subsequent periods but expire without this triggering a claim for price reduction. In the case of insufficient hours, the agency must inform the client of this in a timely manner.

8. Payment, Retention of Title

8.1 The fee is due for payment within 14 days of receipt of the invoice, without expenses and without any deduction, unless special payment conditions are agreed in writing in individual cases. This also applies to the recharging of all cash expenses and other expenses. The goods delivered by Lupinum remain the property of Lupinum until the complete payment of the fee including all ancillary liabilities.

8.2 In case of payment default by the client, the statutory default interest applicable to business transactions applies. Furthermore, in the event of payment default, the client undertakes to reimburse Lupinum for the resulting reminder and collection expenses, as well as the costs of (extrajudicial) legal intervention, insofar as they are necessary for appropriate legal prosecution. This includes at least the costs of two reminders in the market-usual amount as well as a reminder letter from a lawyer commissioned with the collection. The assertion of further rights and claims remains unaffected by this.

8.3 In the event of the client's payment default, Lupinum can immediately declare due all services and partial services provided within the framework of other contracts concluded with the client.

8.4 Furthermore, Lupinum is not obliged to provide further services until the outstanding amount has been settled (right of retention). The obligation to pay the fee remains unaffected by this.

8.5 If payment in installments has been agreed, Lupinum reserves the right to demand immediate payment of the entire outstanding debt in the event of non-timely payment of partial amounts or ancillary claims (loss of time limit).

8.6 The client is not entitled to offset their own claims against claims of Lupinum, unless the client's claim has been acknowledged in writing by Lupinum or judicially determined.

9. Property Rights and Copyright

9.1 Property Rights of Lupinum

9.1.1 All services of Lupinum, including presentations (e.g., suggestions, ideas, sketches, preliminary drafts, clean drawings, concepts), remain the property of Lupinum. Even individual pieces of work and original drafts can be reclaimed by Lupinum at any time - especially at the end of the contract.

9.1.2 By paying the fee, the client acquires a simple, non-transferable right of use for the agreed purpose. Unless otherwise agreed, the use is territorially limited to Austria. Complete payment of the fees is a prerequisite for the acquisition of usage rights.

9.1.3 If the client uses services before full payment, this is based on a revocable loan relationship.

9.1.4 The release of open files (e.g., raw data, project files, source files) is not part of the contract. Without explicit agreement, the client has no claim to them.

9.1.5 The client is not entitled to duplicate or reproduce the service provided and to use it beyond the agreed purpose. The making of copies for archiving and data backup purposes is permitted to the client under the condition that all copyright and ownership notices are transferred unchanged to these copies.

9.1.6 Should the disclosure of interfaces be necessary for the production of interoperability of the software in question, this is to be commissioned by the client from Lupinum against cost reimbursement. If Lupinum does not comply with this request and decompilation takes place according to copyright law, the results are to be used exclusively for the production of interoperability. Misuse will result in damages.

9.1.7 If the client is provided with software whose licensor is a third party (e.g., standard software from Microsoft), the granting of the right of use is governed by the license terms of the licensor (manufacturer).

9.1.8 Lupinum reserves all rights to paid or free distribution, demonstration, exhibition, and publication. The same applies to editing and reproduction rights unless explicitly agreed otherwise.

9.2 Changes and Edits

9.2.1 Changes or further developments of the agency's services by the client or third parties require the explicit consent of Lupinum as well as - for works protected by copyright - the author.

9.2.2 The client acquires editing rights only to the extent that they have been explicitly agreed (e.g., for adding content to websites).

9.3 Scope of Use and Compensation

9.3.1 For use beyond the originally agreed purpose, Lupinum's consent is required. For this, Lupinum is entitled to appropriate additional compensation.

9.3.2 After the end of the contract, further use of the agency's services is only permitted with Lupinum's consent. The following compensation regulations apply:

1st year: Full contract compensation
2nd year: 50% of the contract compensation
3rd year: 25% of the contract compensation
From the 4th year: No compensation

9.3.3 The client is liable for any unauthorized use in double the amount of the appropriate fee for this use.

9.4 Copyright Notice

a) Copyright mark: Lupinum has the right to place a copyright mark in appropriate places (e.g., websites). This may not be removed or altered.

b) Self-promotion: Lupinum may use created projects as references, e.g., in showreels, presentations, or on its website. The client can object to this use in writing for important reasons.

9.5 Content and Third-Party Rights

9.5.1 For content (e.g., photos, texts, music) provided by the client, the client is responsible for clearing the rights. Lupinum assumes no liability for possible legal violations.

9.5.2 Lupinum is entitled to take legal measures in case of violation of its copyright and protective rights. At the client's request, claims can be assigned without affecting the client's usage rights.

9.5.3 All content provided by the client (images, texts, etc.) is subject to copyright and, if the client is the owner, remains in their possession.

9.6 Special Regulations for Custom Developments

9.6.1 For custom developments or custom designs, the client acquires a non-transferable, exclusive right of use, which, however, does not include the underlying source code or the concept.

9.6.2 For services based on templates, the client only acquires the rights granted by the supplier of the template.

9.7 Restrictions on the Transfer of Rights

The transfer of rights takes place exclusively for the client's own use. A transfer or assignment to third parties is excluded, even if they are affiliated companies.

10. Identification

10.1 Lupinum is entitled to refer to Lupinum and possibly to the author on all advertising materials and with all advertising measures, without the client being entitled to any remuneration for this.

10.2 Subject to the client's written revocation, which is possible at any time, Lupinum is entitled to refer to the existing or former business relationship with the client on its own advertising media and in particular on its Internet website with name and company logo (reference notice).

10.3 Lupinum is permitted to use its work results or excerpts thereof for the purpose of self-promotion - even after the end of the contract period - free of charge.

11. Warranty

11.1 Scope of Warranty

Lupinum guarantees:

The professional execution of the agreed services
Compliance with current technical standards
The functionality of the implemented solutions at the time of handover
The completeness of the agreed documentation

11.2 Deadlines and Exclusions

11.2.1 The warranty period is six months from the documented handover of the service. Within this period, the client must report defects in writing. After timely notification of defects, the client's warranty claims remain valid even beyond the end of the warranty period, until the reported defect has been remedied or another agreement has been reached.

11.2.2 The client is not entitled to withhold payments due to complaints.

11.2.3 The presumption rule of § 924 ABGB is excluded. The client must prove that the defect was present at the time of handover.

11.2.4 The right to recourse against Lupinum according to § 933b Para. 1 AGBG expires one year after delivery/service.

11.2.5 No warranty exists for:

Compatibility with future software or hardware versions or browser updates
Changes or interventions by the client or third parties after acceptance
Non-observance of installation requirements
Incorrect operation or misuse
Use of unsuitable hardware or software
Disruptions caused by other programs or systems
Damage due to external influences (power failure, natural events)
Suitability for purposes not explicitly agreed upon

11.2.6 Furthermore, Lupinum does not assume any warranty for limitations or defects that are attributable to used open-source software or modules from external manufacturers/suppliers. In these cases, Lupinum assigns its claims against the manufacturer/supplier to the client, who accepts this assignment with the acceptance of the GTC. Should the assignment be ineffective, Lupinum's liability is limited to price reduction after a reasonable period (at least 4 weeks).

11.2.7 The update obligation according to § 7 VGG is excluded, unless explicitly agreed otherwise.

11.3 Defect Notification and Complaint Obligation

11.3.1 According to § 377 UGB, the client must examine the service immediately after delivery. The client must report any defects immediately, in any case within eight days after delivery/service by the agency, hidden defects within eight days after recognizing them, in writing with a detailed description of the defect; otherwise, the service is deemed approved. In this case, the assertion of warranty and damage claims as well as the right to challenge the contract due to defects is excluded.

11.3.2 In case of violation of this complaint obligation, the service is deemed approved, and warranty and damage claims as well as the right to challenge the contract due to defects are excluded. If the complaint obligation is not met, the client also loses claims for damages due to consequential defects, unless an exception according to § 377 Para. 5 UGB applies.

11.3.3 The client bears the burden of proof for the existence of the defect at the time of handover as well as the risk of receipt of the notice of defect by Lupinum.

11.4 Rights in Case of Defects

11.4.1 In case of justified and timely notification of defects, the client is entitled to improvement or replacement. The choice between improvement and replacement is at Lupinum's discretion. Remote support is permissible as a form of defect remedy.

11.4.2 If improvement or replacement is impossible or involves disproportionately high effort for Lupinum, the client is entitled to a price reduction. A conversion (contract rescission) is only possible if the defect is not minor.

11.4.3 For defects that are attributable to incorrect or imprecise instructions from the client, Lupinum assumes no liability (§ 1168a ABGB).

11.4.4 For the improvement, the client is obliged to send the defective item to Lupinum at their own expense.

11.5 Cooperation Obligations of the Client

11.5.1 Prerequisites for error elimination are:

Reporting within the period of § 377 UGB
Sufficient error description by the client
Provision of all necessary documents
No interventions in the software by the client or third parties
Intended operation of the software
Providing necessary system resources and access
if necessary, provide personnel for tests (especially for IT services)

11.5.2 In case of violation of the cooperation obligations:

The warranty periods are suspended
The client bears the resulting additional costs

11.6 Cost Coverage

11.6.1 Unjustified defect notifications:

Testing and error search will be charged
Travel costs are borne by the client

11.6.2 Justified defect notifications:

Remedy is free of charge within the scope of the warranty
Additional services will be charged separately

11.7 Legal Review

11.7.1 It is the client's responsibility to check the legal permissibility of the services (e.g., competition, trademark, or administrative law). Lupinum only conducts a rough check and is not liable for slight negligence in case of legal impermissibility of content specified or approved by the client.

11.7.2 The agency is not liable in case of slight negligence or after fulfilling any warning obligation towards the client for the legal permissibility of content that has been specified or approved by the client.

11.8 Special Provisions for Modules and Software

11.8.1 Lupinum is not responsible for limitations that are due to the software used and is not obliged to implement solutions or adjustments.

11.8.2 Lupinum is only obliged to contact the manufacturer/supplier to demand a remedy of defects. If this is not successful within a reasonable period, the client is only entitled to price reduction claims.

11.9 Special Regulations for Custom Developments

For custom developments, only the warranty rights specified in the offer or in individual agreements apply.

12. Liability and Product Liability

12.1 General

12.1.1 The liability of Lupinum and its vicarious agents ("people") for slight negligence is excluded. This does not apply to personal injuries.

12.1.2 The client bears the burden of proof for gross negligence or intent.

12.1.3 Lupinum is not liable for property damage or financial loss, lost profit, consequential damage, damage due to delay, impossibility, positive breach of contract, or defective performance, except in case of gross negligence or intent.

12.1.4 The liability per case of damage is limited to the net order sum. This limitation applies to all damaged parties in connection with a damage-causing event. Lupinum's liability for indirect damages, consequential damages, lost profit, and damages from third-party claims is excluded, as far as legally permissible.

12.1.5 Claims for damages expire at the latest six months after knowledge of the damage and the damaging party or three years after the damage-causing event.

12.2 Exclusion of Liability for Third-Party Claims

12.2.1 Lupinum is not liable for claims by third parties based on the service provided (e.g., advertising measures), provided Lupinum has fulfilled its obligation to inform or such was not recognizable.

12.2.2 The client indemnifies and holds Lupinum harmless with regard to legal costs, own attorney's costs, costs of judgment publications, or claims for damages by third parties.

12.3 Limitations for Software and Modules

12.3.1 Lupinum assumes no liability for limitations or defects based on open-source software. Solutions for limitations of this software are not part of Lupinum's scope of services.

12.3.2 Lupinum is not liable for damages caused by modules from external manufacturers/suppliers. The corresponding warranty claims are assigned to the client, who accepts this assignment.

12.3.3 Lupinum is not liable for data losses based on the use of open-source software or external modules.

12.3.4 For library (standard) programs, Lupinum only warrants the agreed functionality and assumes no liability for special requirements of the client that have not been explicitly agreed upon.

12.4 Liability for Provided Content and Data

12.4.1 Lupinum is not liable for the content, accuracy, or completeness of the data provided by the client.

12.4.2 Lupinum is not obliged to check trademarks provided by the client (e.g., brands) for possible conflicts, unless a rough check has been explicitly agreed upon. An EU-wide or comprehensive check is not part of the scope of services and is recommended to be carried out by a specialized lawyer.

12.5 Special Liability Provisions for IT Services

12.5.1 Data backup and data loss: The client is obliged to perform a complete data backup before the start of IT services. Lupinum is not liable for data losses caused by omitted or inadequate data backup. The restoration of data is not part of the standard services and will be charged separately.

12.5.2 Lupinum assumes no liability for system failures or business interruptions caused by:

Force majeure
Network failures
Actions of third parties
Incorrect operation by the client or their employees

12.5.3 For remote access, Lupinum is not liable for:

Connection interruptions
Transmission errors
Technical deficiencies in the client's infrastructure

12.5.4 No liability is assumed for the functionality of third-party hardware or software. When installing software, the client is responsible for compliance with the license terms.

12.5.5 Lupinum is not liable for damages caused by:

Viruses, malware, or other harmful software
Incompatibilities between different systems or components
Errors in third-party software

12.5.6 The client bears the burden of proof for:

The existence of a damage
The causality between service and damage
Lupinum's fault

12.5.7 For claimed damages, the client must report these immediately, at the latest within 48 hours after recognizability, in writing.

12.5.8 In case of data loss, Lupinum is liable for a maximum of 10% of the order sum per case of damage, but not more than EUR 15,000 (written out: fifteen thousand euros).

13. Data Protection in Business Transactions

13.1 Data Processing for Business Purposes

13.1.1 Lupinum processes the following personal data:

Name/company
Contact person
Business address and other business contact data
Phone number, fax number, email address
Company-relevant data (commercial register number, VAT number, etc.)
Bank details, payment data

13.1.2 Data processing takes place on the basis of Art. 6 Para. 1 lit. b (contract fulfillment), lit. c (legal obligation), lit. f (legitimate interests) and, where applicable, lit. a (consent) GDPR for the following purposes:

Business processing and contract fulfillment
Fulfillment of legal obligations, in particular tax and commercial law retention obligations
Business communication
Marketing and business initiation within the B2B area

13.2.1 Insofar as processing is based on consent, it is voluntary.

13.2.2 The client can revoke their consent at any time with effect for the future. After revocation, the data will no longer be processed for the purposes for which the consent was revoked. For a revocation, contact Lupinum at: Email: postbox@lupinum.com

13.3 Storage and Disclosure of Data

13.3.1 The data is stored for the duration of the business relationship and beyond that for the duration of the legal retention obligations (in particular 7 years according to § 132 BAO).

13.3.2 Disclosure of data to third parties takes place exclusively:

If this is necessary for the provision of the service or for the fulfillment of the contract (e.g., disclosure to subcontractors)
Due to a legal obligation
For the enforcement of legal claims

13.3.3 Data may be processed outside the EU/EEA, in particular in the USA and Canada. The appropriate level of data protection results from an adequacy decision of the European Commission according to Art. 45 GDPR or from suitable guarantees according to Art. 46 GDPR, such as standard data protection clauses. The client undertakes to comply with the requirements of the GDPR when processing data that they receive from Lupinum.

13.4 Information and Marketing Communication

Lupinum is entitled to contact the client within the framework of § 107 TKG, also for information and advertising purposes (in particular via email, telephone, post, and other electronic communication channels). The client can object to the use of their data for marketing purposes at any time free of charge.

13.5 Data Security Measures

Lupinum implements appropriate technical and organizational measures to protect the processed data and to ensure compliance with data protection regulations.

13.6 Data Subject Rights

The persons affected by the data processing have the right to information, correction, deletion, restriction of processing, data portability, and objection according to the provisions of the GDPR. Complaints can be submitted to the Austrian Data Protection Authority (www.dsb.gv.at).

Lupinum OG Owners: Matthias Amon & Romana Netzberger Innerzaun 26/1, 3321 Kollmitzberg, Austria Telephone: +43 681 20303240 Email: info@lupinum.com

14. Final Provisions

14.1 Place of Performance and Risk Transfer

14.1.1 The place of performance for all services of Lupinum is its headquarters.

14.1.2 In case of shipment, the risk passes to the client as soon as Lupinum has handed over the goods to the transport company chosen by it.

14.2 Jurisdiction and Applicable Law

14.2.1 The contract as well as all rights and obligations derived from it are exclusively subject to Austrian law, excluding its conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods.

14.2.2 For all disputes arising from or in connection with this contractual relationship, the exclusive jurisdiction of the competent court at Lupinum's headquarters is agreed. However, Lupinum is entitled to sue the client also at their general place of jurisdiction.

14.3 Adaptation and Interpretation

14.3.1 Should a provision of this contract be ineffective, void, or contestable, this does not affect the validity of the remaining provisions. Instead of the ineffective provision, a regulation applies that comes closest to the will of the contracting parties. This also applies to any contract gaps.

14.3.2 The contestation of the contract due to error is restricted insofar as this is legally permissible. The contracting parties waive the contestation due to laesio enormis (reduction by more than half) according to § 934 ABGB, insofar as this is legally permissible.

14.4 Contract Changes and Side Agreements

14.4.1 Changes or additions to the contract require written form to be valid. This also applies to deviating from this formal requirement. The written form is maintained by the electronic form (email), provided transmission is made to the email address last notified by the contractual partner.

14.4.2 There are no verbal side agreements. Earlier verbal or written agreements lose their effectiveness with the conclusion of the contract, unless they have been explicitly declared part of the contract.

14.5 Transfer of Rights

Rights from this contract may only be transferred to third parties with Lupinum's express consent.

14.6 Confidentiality

14.6.1 Each contractual partner assures the other to treat all business secrets brought to their knowledge by the other in connection with this contract and its implementation as such and not to make them accessible to third parties, insofar as they are not generally known, or were not already known to the recipient without an obligation to confidentiality, or are communicated or handed over to the recipient by a third party without an obligation to confidentiality, or have been independently developed by the recipient demonstrably, or must be disclosed due to a legally binding official or judicial decision.

14.6.2. The subcontractors associated with Lupinum are not considered third parties, insofar as they are subject to a confidentiality obligation corresponding to this point in content.

14.7 Alternative Dispute Resolution

14.7.1 In case of disputes arising from or in connection with this contract, the parties strive for an amicable solution before initiating court proceedings. This can be done through direct dialogue or through an alternative dispute resolution procedure.

14.7.2 In case of disputes with a value in dispute of up to EUR 10,000, Lupinum will, at the client's request, agree to a mediation procedure or another appropriate alternative dispute resolution procedure. The costs for this are, as far as legally permissible, borne by both parties in equal parts.

14.7.3 In case of disputes about technical aspects or questions of the implementation of project requirements, each party can propose obtaining an expert opinion jointly determined. The costs for this are, as far as legally permissible, borne by both parties in equal parts. The result of the expert opinion is not binding for any of the parties but should serve as a basis for an amicable solution.

14.7.4 Participation in an alternative dispute resolution procedure is in any case voluntary. The legal path remains open at all times without restriction. The limitation period for claims is suspended for the duration of an ongoing alternative dispute resolution procedure.