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Terms and Conditions - UP'N'CHANGE

Terms and Conditions

Terms and Conditions B2C/B2B of UP’N‘CHANGE GmbH

1. Scope

  1. The following general Terms and Conditions shall apply to and govern the use of all services provided by UP’N’CHANGE (“Provider”) through the website https://www.upnchange.com/. The General Terms and Conditions (hereinafter referred to as “GTC”) shall apply to all current and future services agreed between the provider and the customer. “Customer” shall refer to the contract partner of the provider and can be either a natural or a legal person. The terms “consumer” and “businesses” will hereinafter be used within the meaning of the Consumer Protection Act (Konsumentenschutzgesetz – KSchG).
  2. By registering, the customer expressly accepts these GTC as well as the privacy statement of UP’N’CHANGE.
  3. In principle, customers who want to use a service of UP’N’CHANGE can be all natural and legal persons (“customers”) having full legal capacity.
  4. Individuals who have not yet completed 18 years of age may not use the services offered by UP’N’CHANGE.
  5. Any conditions derogating from the present GTC shall not be valid unless agreed in writing between UP’N’CHANGE and the customer.

2. Registration / Contract conclusion

  1. A registration on the platform of UP’N’CHANGE shall be required in order to use the services of UP’N’CHANGE. For this purpose, the customer must provide their name and a valid e-mail address, as well as payment information. The customer will then receive a link intended exclusively for them, with which they can use the services. The customer shall not be entitled to a registration on the platform.
  2. The services presented by UP’N’CHANGE on the website https://www.upnchange.com/ are a non-binding invitation of UP’N’CHANGE to the customer to submit a binding offer for the services. By placing an order, the customer submits such a binding offer. A contract between the customer and UP’N’CHANGE will only be concluded when UP’N’CHANGE has accepted the offer with a separate order confirmation and has sent an e-mail message to the customer containing the access link.
  3. No right to a contract conclusion (“purchase”) exists. UP’N’CHANGE is entitled to refuse a purchase without stating any reason.
  4. Every customer has the possibility of using the sent usage link once. In the case of easyCoaching digiTools, the link is open and valid for 12 months until termination of the tool. In the case of easyTest digiTools, the link is open and valid for the duration determined by the customer until termination of the tool. This period is usually 2 weeks, yet not longer than 1 month.
  5. After conclusion of the purchase, the customer has the possibility to use the services of UP’N’CHANGE immediately.
  6. The purchase and the use of the services of UP’N’CHANGE are subject to charge.
  7. The purchase gives the customer access to a service. Depending on the respective purchased package, this corresponds to a one-time access to the use of the service or a package with a limited number of usages. Access to the service is valid for a period of 12 months as of purchase, in the case of easyTests, this period will depend on the duration of implementation defined by the customer (not more than 1 month).

3. Services – InnoSparker & Conflict Facilitator

  1. UP’N’CHANGE offers customers access to its central services on its website https://www.upnchange.com/ :
    1. InnoSparker (an easyTest by UP’N’CHANGE)
    2. Conflict Facilitator (an easyCoaching by UP’N’CHANGE)
  2. UP’N’CHANGE offers customers guidance in the case of conflicts, as well as evaluation tools and instruments for creativity measurement, which do not constitute a medical service or psychological care. This guidance does not constitute instructions but merely serves as an instrument for conflict resolution.
  3. UP’N’CHANGE merely offers digital measuring instruments (InnoSparker) and proposals for conflict resolution mechanisms (Conflict Facilitator) without having knowledge of the actual disputes or the ability or intention to influence these.
  4. In the case of easyCoaching digiToolsUP’N’CHANGE is not able to gain insight into the underlying topics of the respective Services or to use any other intervention possibility whatsoever. For easyTests, only the information serving as a basis for evaluation will be stored. UP’N’CHANGE does not have any possibility of intervention whatsoever.
  5. In view of the technical and economic development of the internet, legal provisions or requirements and improvements of own and third-party products, UP’N’CHANGE may at any time introduce changes to the services it provides and will immediately inform the customer in case of a change in the contractual situation that may affect them.
  6. The customer is entitled to make the services available to his employees and to utilise the results exclusively for his own use or for the fulfilment of professional purposes.

4. General duties, obligations and rule of conduct of the customer

  1. In order to fully use the services of UP’N’CHANGE, the customer must always use the latest (browser) technologies or allow for their use (e.g. activation of JavaScript, cookies, pop-ups). Should the customer use older technologies, they may not be able to use the full scope of the services provided by UP’N’CHANGE.
  2. The customer must treat the access link in a strictly confidential manner and protect it against unauthorised access by third parties.
  3. UP’N’CHANGE is not obliged to provide a new access link in the event of its loss or unauthorised use by a third party, causing it to be used up.
  4. Should the service be rendered impossible by the customer, UP’N’CHANGE is relieved from its obligation to fulfil the contract.
  5. The customer warrants that they will not make unlawful use of the services of UP’N’CHANGE.

4.1 The following obligations apply to business customers

  1. Where the customer purchases packages for their company, UP’N’CHANGE shall not be liable for any unlawful use of the access link. If the customer has reason to believe that third parties somehow gained knowledge of the access link, UP’N’CHANGE shall not be liable for unlawful access that may reduce or use up the package.
  2. In addition, UP’N’CHANGE is not obliged to provide a new access link if such a link was lawfully delivered to the customer. If the customer discloses the access link to third parties, they will be liable toward UP’N’CHANGE for all damage caused as a result.
  3. The customer is obliged to undertake everything in their power to ensure compliance with the statutory provisions on data protection and data security.
  4. The customer agrees to use the services provided by UP’N’CHANGE as intended and to abstain from any actions during their use that may cause damage or put UP’N’CHANGE and/or other customers at risk or limit the availability of the services for other customers. The intended use of the services also entails compliance with all instructions, recommendations, etc. that UP’N’CHANGE may issue at the time of the conclusion of the contract or thereafter on its homepage, in operating instructions and/or in other documents made available to the customer.
  5. The customer must comply with the following rules in particular:
    1. The customer shall inform their employees about the entry of personal data as part of the use of the services. For this purpose, they must also send the privacy statement and also inform the affected individuals thereof.
    2. The publication of third-party data (e.g. the creation of a profile for a third party) is not permitted without their consent and is basically not provided for.
    3. Notwithstanding any civil and criminal penalties, the customer must hold harmless and indemnify UP’N’CHANGE against any damage whatsoever and against any claims of third parties resulting from this business relationship.

5. Rights of use and copyrights

Towards the customer, UP’N’CHANGE shall be the sole owner of the reproduction, dissemination, processing and all other copyrights, as well as of the right of intangible transfer and reproduction of the service of UP’N’CHANGE and of the individual contents and know-how contained therein. The use of the service of UP’N’CHANGE and of the contents, materials, as well as trademarks and trade names is admissible exclusively for the purposes referred to in these general Terms and Conditions.

6. Term and termination

  1. The services are basically available upon purchase and can be used immediately. The easyCoaching services of UP’N’CHANGE can be used for a period of 12 months as of the purchase of the access link or the package and this period cannot be extended. After these 12 months, the customer’s possibility of obtaining the services expires automatically. In the case of easyTests, the duration of use corresponds to the time determined by the customer, yet not longer than 1 month. After the end of the 1 month, the customer’s possibility of obtaining the services expires automatically.
  2. In case of good cause,UP’N’CHANGE is entitled to terminate the present contract without notice by invalidating the access link. Good cause includes, in particular, when
    1. UP’N’CHANGE has made the customer aware of the violation of a provision of the present contract and requested that the customer terminates the violation by granting a period of at least 14 days and the customer failed to comply with this request within the said period.
    2. UP’N’CHANGE becomes aware of an unlawful use of the services.

7. Warranty

  1. UP’N’CHANGE endeavours to provide a continuous availability of its services. It is not possible to rule out downtime that is caused by maintenance, updates and circumstances (such as technical problems of third parties, force majeure) which are outside the sphere of influence of UP’N’CHANGE and thus not attributable to the same, and which render the Services provided by UP’N’CHANGE inaccessible over the Internet. UP’N’CHANGE does not warrant for technical interruptions, power failures or other malfunctions of the website https://www.upnchange.com/. All services offered on the website are subject to an availability of 99% over a period of one year. Any announced maintenance work shall not reduce the availability time.
  2. UP’N’CHANGE does not warrant that the services offered will meet the expectations of the customers, in particular that the use of the services will achieve the desired success (e.g. the resolution of conflicts etc.).
  3. The access link shall be valid for 12 months as of the purchase of the respective service or for a maximum of 1 month in accordance with the time of an easyTest as defined by the customer. After expiry of the year or the time defined by the customer, an extension is only possible through a renewed payment of the relevant amount.
  4. Where the package of a customer is exhausted prior to the expiration of the one-year period or – in the case of easyTests – of the one month, the access link is invalidated and the customer can purchase an additional package.
  5. UP’N’CHANGE is entitled to invalidate the link after one year as of purchase, without explicitly notifying the customer thereof.

8. Liability

  1. Unless this violates binding law, UP’N’CHANGE shall be liable for damage caused in connection with the present contract by the company or its employees and/or agents only where such damage was caused by gross negligence or intent. The relevant liability restrictions, however, shall not apply to compensation for personal injuries.
  2. Compensation to companies for lost profits and consequential damage is ruled out. This shall also apply in case of delay or the impossibility of service.
  3. Notwithstanding the liability limitation under 8.2. , the liability of UP’N’CHANGE for consequential damage, loss of profit, data loss and damage to property is hereby expressly ruled out. The reversal of the burden of proof in accordance with Section 1298 Austrian Civil Code is ruled out towards companies.
  4. Once the access link has been sent to the authorised individual, UP’N’CHANGE is no longer liable for any use whatsover by the customer or a third party.
  5. The knowledge obtained from the services does not justify any liability claim towards UP’N’CHANGE or the individuals attributable to it. The customer acts at their own risk.
  6. The services are not intended to provide diagnosis or treatment recommendations. Their contents are not a substitute for medical or psychological treatment, nor do they constitute a recommendation to refrain from, discontinue or use such a treatment.

9. Special provisions for consumers

The following specific provisions of the Austrian Distance and Off-Premises Act (FAGG) shall apply exclusively to customers who are consumers within the meaning of Section 1 Consumer Protection Act (KSchG). A consumer is considered any natural person who is acting for purposes which are outside his or her trade, business or profession.

9.1. Right of withdrawal

If you are a consumer within the meaning of the Consumer Protection Act, you may withdraw from this contract within fourteen days without giving any reasons. The withdrawal period is fourteen days as of the day of the respective conclusion of the contract. To exercise the right of withdrawal, you must inform us (UP’N’CHANGE GmbH, Obere Donaustraße 15A/1/1, 1020 Vienna, office@upnchange.com) of your decision to withdraw from this contract by submitting an unequivocal statement (e.g. a letter sent by post, fax or e-mail). To meet the withdrawal deadline, all you need to do is to send your notice concerning your wish to exercise your right of withdrawal before the withdrawal period has expired. You may use the attached model withdrawal form (see Section 9.2. of the GTC) though this is not obligatory.

Consequences of withdrawal

If you withdraw from this contract, we will refund to you all payments we have received from you in connection with the respective contract immediately and not later than within fourteen days from the date on which we received information about your decision to withdraw from this contract. Unless expressly otherwise agreed with you, we will refund the amount using the same means of payment as you used for the initial transaction; under no circumstances will you incur any fees as a result of this refund.

If you requested that the services should begin within the withdrawal period, you must pay to us an appropriate amount corresponding to the share of Services you have already received used until the time you informed us about your decision to exercise the right of withdrawal compared to the entire scope of services defined in the respective contract.

9.2. Model withdrawal form

If you wish to withdraw from the contract, please complete this form and return it to us.

UP’N’CHANGE GmbH
Obere Donaustraße 15A/1/1
1020 Wien
office@upnchange.com

I/We(*) hereby withdraw (*) from the contract concluded by me/us (*) regarding the purchase of the following goods (*)/the supply of the following Service (*)

Ordered on (*) ___________________ / received on (*) _____________________

Name of the consumer(s)

Address of the consumer(s)

Signature of the consumer(s) (only in case of notification on paper)

Date:

(*) Delete where not applicable

9.3. Exceptions from the right of withdrawal in accordance with Section 18 para.1 (11) Austrian Distance and Off-Premises Contracts Act (FAGG)

UP’N’CHANGE shall provide its services in digital form. According to Section 18 para.1 (11) Austrian Distance and Off-Premises Contracts Act (FAGG), the right of withdrawal is ruled out in connection with contracts for the provision of digital contents not stored on physical storage media in case the company – with the consumer’s consent, in combination with his knowledge of the loss of the withdrawal right in case of premature commencement of contract performance and after provision of a copy of the contract or a confirmation according to Section 5 para.2 or Section 7 para. 3 FAGG – commenced the delivery before expiry of the withdrawal period according to Section 11 FAGG.

10. Discontinuation of the Services

UP’N’CHANGE is entitled to discontinue in whole or in part the service that is the subject-matter of this contract if the safety of UP’N’CHANGE or its customers is at risk. This right also applies where the continuation of the services or parts thereof is not economically feasible. UP’N’CHANGE shall immediately inform the customer about such measures.

11. Amendment of these Terms and Conditions

  1. UP’N’CHANGE may amend these Terms and Conditions at any time. UP’N’CHANGE will inform the customer about such changes either by sending the amended Terms and Conditions to the e-mail address indicated during registration or by publishing them on the platforms of UP’N’CHANGE.
  2. Amendments or additions to the GTC shall become an integral part of the contract unless the Customer requests negotiations about the amendments in writing not later than within 14 days. Unless results are achieved in these negotiations within an appropriate period, both the Customer and UP’N’CHANGE shall have the right to terminate the contractual relationship in writing by e-mail (office@upnchange.com).

12. Data protection

  1. The security and strictly confidential treatment of personal data are the top priority at UP’N’CHANGEUP’N’CHANGE processes personal data always in compliance with the data protection legislation in force.
  2. UP’N’CHANGE stores and processes the personal data provided by the customer (in particular first name, last name, address, e-mail address) for contract performance and billing purposes.
  3. For further information on data protection, go to the Terms of Use & the Privacy Statement of UP’N’CHANGE, available in the Services chosen by you or at www.upnchange.com/.

13. Place of performance / Jurisdiction / Choice of law / Contract language

  1. The services are directed to the following German- (i.e. Austria, Germany and Switzerland) and the following English-speaking (UK, USA) countries, the place of performance is Vienna and German or English shall be the contract language, depending on the used IP address.
  2. All contractual relationships entered with the customer shall be governed by and construed by Austrian law to the exclusion of the conflict of law rules of International Private Law (e.g. Act on International Private Law, EEC Convention on the Law Applicable to Contractual Obligations, etc.).
  3. The statutory jurisdictions shall apply for disputes with consumers within the meaning of the Consumer Protection Act (KSChG) who have their residence or their habitual place of abode in Austria or are employed in Austria.
  4. In the case of companies, the jurisdiction for disputes shall lie with the court having subject-matter jurisdiction for the Vienna First District.

14. Severability

Should any provisions of this contract be or become ineffective, invalid and/or annulled during their term, this shall not affect the legal effectiveness and validity of the remaining provisions. In this case, the contracting parties already agree to replace the (now or then) ineffective, invalid and/or annulled provision with one that is effective and valid and, to the extent possible and permitted by law, comes closest to the replaced provision in terms of its economic effect.

15. Final provisions

All legally binding statements in connection with this contract must be sent in writing to the last indicated e-mail address of the other contracting party. When a statement is sent to the last indicated e-mail address in writing, it shall be deemed received by the other contracting party.