Terms and Conditions

Art I – General Provisions

1. Scope

a. The entire business relationship between Motion BBC GmbH, with its registered office in Vienna, Bleichergasse 13/5, 1090 Vienna, ATU75404723 ("Motion") and a contracting party ("Client") is governed exclusively by these General Terms and Conditions ("T&Cs").

b. These T&Cs govern the mutual rights and obligations of the contracting parties and are binding for the entire current and future business relationship, even if no express reference is made to them.

c. Provisions deviating from or supplementing these T&Cs — in particular the T&Cs of the contracting party — only become part of the contract if Motion has expressly confirmed them in writing.

d. All agreements, subsequent amendments, additions and ancillary agreements must be made in writing to be valid.

2. Definition of contracting party

A contracting party within the meaning of these T&Cs is any natural or legal person who uses or wishes to use the services of Motion.

3. Written form

Within the scope of these T&Cs, both fax and email satisfy the requirement of written form.

4. Gender-neutral language

All terms and designations are used in a gender-neutral manner. Masculine designations also include the feminine form.

Art II – Offer and Conclusion of Contract

1. Offers from Motion are non-binding unless expressly designated as binding.

2. The contract is concluded by oral acceptance of the offer by telephone, digital confirmation by email, or in writing by the contracting party.

3. Monthly contracts are automatically renewed for one month at a time, unless otherwise agreed. Monthly contracts may be terminated by either party at the end of the contract term, subject to a notice period of one month.

4. Annual contracts are automatically renewed for one year at a time, unless otherwise agreed. Annual contracts may be terminated by either party at the end of the contract term, subject to a notice period of three months.

5. The contractor is entitled to increase the fees a maximum of once per calendar half-year. The price increase requires the consent of the client. Consent is deemed to have been granted if the client does not object to the price increase within four weeks of receipt of the change notification. The contractor shall specifically draw the client's attention to the consequences of failing to object in the change notification.

Art III – Rights and Obligations of Motion

1. Subject of the services

a. Motion operates internet platforms such as www.motiongroup.at, www.sales-beratung.com and www.personal-recruiting.at — internet-based portals that support contracting parties in new customer acquisition and recruitment. The specific procedure is set out below.

b. New customer acquisition and recruitment via personalised messages

i. Motion supports contracting parties in new customer acquisition and recruitment. Programs for automated, personalised outreach are used to send personalised messages to a predefined target group via various communication platforms such as LinkedIn, Facebook or email programs.

ii. Texts sent automatically via various communication channels ("Campaigns") are sent to the contracting party in advance by email or agreed jointly by telephone.

iii. After conclusion of the contract, campaigns are published at the agreed time, i.e. transmitted to a large number of people via various communication channels and platforms such as LinkedIn, Facebook or email programs. If no publication time has been agreed, publication takes place as soon as possible after completion of the set-up call with the contracting party.

iv. On the basis of the contract, Motion is entitled but not obliged to refer to the client's current campaign on various other communication channels — such as social media platforms.

v. Motion owes neither complete nor correct content of search results nor correctness of the specific presentation. Motion does not owe any obligation that the data delivered is suitable for any intended purpose of the user.

vi. Motion undertakes, at the contracting party's request, to make changes or additions to a published campaign during the publication period, provided this is technically and substantively reasonable. Excluded are changes that alter the nature of the campaign to such an extent that the result is no longer the original campaign but a new campaign.

vii. Motion reserves the right to request the contracting party to change the campaign or to propose changes or additions to the campaign. If the contracting party does not comply or does not accept the proposed change or additions, Motion reserves the right not to publish the campaign. This applies in particular if the campaign violates good morals or official prohibitions in content or appearance, or if publication is otherwise unreasonable for Motion.

c. Transmission of information to Motion

i. The target group to be reached and the message to be communicated to the respective target group are determined jointly with the contracting party.

ii. For analysis purposes, Motion stores the names of all persons contacted.

2. Liability

a. Motion is not obliged to check the contracting party's campaign before publication or thereafter. Motion therefore assumes no liability for any unlawful content of the campaign. The contracting party shall indemnify Motion against any claims asserted against Motion due to legal violations of the contracting party.

b. The contracting party is responsible for the complete transmission of flawless, suitable campaign content. Motion is not responsible for any delays of a substantive or technical nature.

c. Motion warrants preparation and publication of the campaigns desired by the contracting party in accordance with the usual current technical standard. The contracting party acknowledges that, according to the state of the art, it is not possible to create a completely error-free program. Errors in the presentation of the desired campaign do not exist if these are caused by the use of unsuitable display software and hardware or by failures in the communications network.

d. Motion will endeavour to be available around the clock every day and to ensure the greatest possible availability of the servers. Maintenance work, updates and similar work will, where possible, be announced in advance by Motion and carried out in such a way that downtime does not occur or is kept as short as possible. However, 100% availability cannot be guaranteed, and Motion is not liable for damages caused by temporary failure of the functions or by Motion's complete discontinuation.

e. Motion is a campaign medium and is not liable for the successful filling of positions, the successful sale of software, or the like.

f. Motion is obliged to pay damages in all conceivable cases only in the event of intent or gross gross negligence. In the case of light and ordinary gross negligence, Motion is liable exclusively for personal injury.

g. Under no circumstances is Motion liable to the contracting party for compensation of indirect damages, lost profits, lost interest, savings not realised, damages arising from third-party claims, loss of data or consequential damages, in particular damages to hardware or software.

h. Under no circumstances is Motion liable for the temporary or complete blocking of profiles on social media portals such as LinkedIn or Facebook. Motion only sends messages via these portals on behalf of the client. If the client is warned, blocked (by sending too many messages or the like) or hacked on these portals, Motion accepts no liability.

i. Motion is in no event liable for the unlawful sending of marketing/email campaigns under the Telecommunications Act (§ 107 Telecommunications Act, TKG); rather, Motion carries these out only on behalf of the client.

Art IV – Data Processing under Art. 28 GDPR

1. Obligations of the processor

a. Motion undertakes to process data and processing results exclusively within the scope of the written instructions of the controller. If Motion receives an official order to disclose the controller's data, it shall — to the extent legally permissible — inform the controller without delay and refer the authority to the controller. Likewise, processing of the data for the processor's own purposes requires a written instruction.

b. Motion declares legally binding that it has obliged all persons entrusted with data processing to confidentiality before commencing their activity, or that they are subject to an appropriate statutory obligation of secrecy. In particular, the confidentiality obligation of persons entrusted with data processing remains in force after termination of their activity and departure from the processor.

c. Motion declares legally binding that it has taken all necessary measures to ensure the security of processing pursuant to Art. 32 GDPR.

d. Motion takes the technical and organisational measures necessary so that the controller can at any time fulfil the rights of the data subject under Chapter III of the GDPR (information, access, rectification and erasure, data portability, objection, and automated decision-making in individual cases) within the statutory deadlines, and provides the controller with all information required for this purpose. If a corresponding request is addressed to the processor and the requester apparently mistakenly considers the processor to be the controller of the data processing operated by it, Motion shall forward the request to the controller without delay and inform the requester accordingly.

e. Motion supports the controller in complying with the obligations set out in Art. 32 to 36 GDPR (data security measures, notifications of personal data breaches to the supervisory authority, notification of the data subject affected by a personal data breach, data protection impact assessment, prior consultation).

f. Motion is reminded that it must establish a record of processing activities pursuant to Art. 30 GDPR for the present processing.

g. The controller is granted the right of inspection and control at any time, including by third parties commissioned by it, of the data processing facilities with regard to the processing of the data transferred by it. Motion undertakes to make available to the controller the information necessary to monitor compliance with the obligations set out in this agreement.

h. Upon termination of this agreement, Motion is obliged to hand over all processing results and documents containing data to the controller. If Motion processes the data in a special technical format, it is obliged, after termination of this agreement, to return the data either in that format or, at the controller's request, in the format in which it received the data from the controller or in another common format.

i. Motion shall inform the controller without delay if it considers that an instruction from the controller violates data protection provisions of the Union or the Member States.

2. Location of data processing

Data processing activities are at least in part also carried out outside the EU or EEA, namely in the USA.

3. Sub-processors

Motion may engage sub-processors. Standard market contracts are concluded with these companies.

List of sub-processors:

• Heroku – www.heroku.com
• Google Docs/Sheets – www.google.com/docs/about
• Postmark – www.postmarkapp.com
• Hubspot – www.hubspot.de
• AWS – www.aws.amazon.com
• Sevdesk – www.sevdesk.com
• Zapier – www.sevdesk.com

Art V – Rights and Obligations of the Contracting Party

1. The contracting party informs Motion of the target group to be reached and the messages to be sent to the desired target group.

2. The contracting party undertakes to comply with all data protection and personality rights provisions and shall indemnify Motion against any claims asserted against Motion due to legal violations of the contracting party.

3. The data provided by Motion to the customer is intended for one-time use in the specific campaign and may not be reused elsewhere.

4. Payment terms and default interest

a. The invoice is sent to the contracting party in writing. The contracting party expressly consents to the transmission of invoices by email.

b. Unless otherwise agreed, the invoice is due without deductions within 7 days of delivery.

c. Payments to Motion must be made with debt-discharging effect exclusively to the account specified in Motion's invoice. For the timeliness of payment in the case of bank transfers, the credit on the account notified by Motion is decisive.

d. In the event of default in payment, statutory default interest of 9.2% above the base rate is deemed agreed. In the event of default, the contracting party is obliged, in addition to default interest, to reimburse all expedient procedural and extra-procedural costs of collection, including the costs of a lawyer engaged by Motion.

e. Set-off against counterclaims of any kind whatsoever is excluded.

5. The user undertakes to use address and contact data only within the legally permissible framework (in accordance with GDPR/UCA) and for a legitimate purpose. Depending on the purpose or further processing, it may be necessary for the user to inform the data subjects or, prior to processing, to explicitly obtain the necessary consent of the data subject (e.g. via "double opt-in"). Motion advises the user that the determination and provision of the data is not associated with such consent. The user is responsible for the legal admissibility of use, in particular from data protection and competition law perspectives.

Art VI – Termination of the Business Relationship

1. Motion and the contracting party may terminate the business relationship or parts of it, provided there is no fixed-term agreement, subject to a reasonable period of notice.

2. In the event of an important reason, Motion and the contracting party may terminate the business relationship or parts of it with immediate effect at any time. Important reasons are in particular breaches of obligations by the contracting party under the T&Cs and other contractual agreements, and discontinuation of business activity.

Art VII – Final Provisions

1. The court with subject-matter jurisdiction in Vienna, Austria, has jurisdiction over all disputes arising from the business relationship between Motion and the contracting party.

2. Should any provisions of these T&Cs be wholly or partially invalid, the validity of the remaining provisions shall not be affected. The contracting parties will replace the legally invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the content and purpose of the legally invalid or unenforceable provision.