GENERAL TERMS AND CONDITIONS
for usage of the Xohana online platform
of Xohana e.U. (“Xohana”)
1. Scope of the General Terms and Conditions
The following General Terms and Conditions (GTC) shall apply to any and all usage, also future usage, of the Xohana platform and shall be binding for both seekers (users) and providers.
2. Legal succession
Users and providers, as well as Xohana, undertake to ensure that the obligations arising from these GTC devolve or are transferred to their respective legal successors. Already at this point, users/providers agree that their contractual relationship with Xohana will devolve to the corporation to be named Xohana, which is yet to be established, and will continue to exist in relation to this company.
3. General provisions, quotations, binding effect of quoted offers
Xohana provides a virtual platform on which seekers (users) can search for products and services offered by providers (providers) and providers can search for suitable seekers for their products and services. Already prior to registration, users can describe their needs on the platform; the Xohana applications technically facilitate this process by providing suggestions. Once users have completed the specification of their needs, users register and choose a password. User needs are saved and are displayed if providers search for the same needs or receive automatic notification thereof. The concrete specification of a user’s needs is intended as an invitation for providers to submit quotations.
Providers can search for specifically defined needs. Providers can save defined search parameters and are automatically notified via e-mail or another online medium if new needs appear on the platform which match the criteria of the relevant provider. If a provider quotes an offer to a user, this quotation shall be binding vis-à-vis the user. The provider may, however, limit the validity of the quoted offer by stating an expiration date. Any offer by a provider is forwarded to the relevant user by e-mail or another online medium. The user can accept the offer and confirm acceptance vis-á-vis the provider by clicking the “Accept offer” button. Upon confirmation of acceptance, Xohana forwards the user’s e-mail address to the provider.
4. Provision of infrastructure by Xohana
Xohana makes the Xohana platform available to users merely as a platform and provides relevant technical applications (infrastructure). Xohana does not participate in any communication between users and providers, nor does it participate, in any form whatsoever, in any business transactions that may be concluded between users and providers, nor does it assume any liabilities or warranties in these respects, nor guarantees of performance or success. Contracts on services sought on the platform are exclusively concluded directly between the seeker and the provider.
5. Offers by providers
Providers shall be exclusively responsible for the content of legal transactions concluded with users. This shall in particular apply to, without limitation, compliance with all statutory regulations, including, without limitation, the provisions of the relevant E-Commerce Act and any consumer protection regulations (including, without limitation, those pertaining to contracts concluded via distance selling, rights of withdrawing from a contract, price marking). Insofar as Xohana is held liable in connection with the above, the provider shall indemnify and hold harmless Xohana in this respect.
6. Costs of usage
The costs providers incur for usage are specified in the current price list as amended and published on Xohana’s website. Unless explicitly stated otherwise, prices are indicated exclusive of statutory VAT. Payments shall be debited from a prepaid user account.
7. User and provider data, password
The user/provider affirms that all data s/he submitted upon registration are true and complete, that s/he does not use a pseudonym and that s/he is of age. The user/provider shall notify Xohana of any changes in her/his data without delay. The user/provider undertakes to keep confidential the password used for registration. The user/provider shall be exclusively responsible for any data and contents s/he uses.
8. Copyright on contents, unlawful contents and contents in violation of contract
The user/provider affirms that s/he is the owner or authorised user of the contents published by her/him and that the usage of said contents does not interfere with the rights of others, including, without limitation, copyrights, immaterial rights of personality/to privacy, intellectual property rights or other third-party rights. The user/provider further undertakes to refrain from publishing any contents that are punishable under criminal law, or any pornographic, offensive or libellous and defamatory contents, and from advertising, offering or distributing any products in violation of statutory regulations for the protection of minors, weapons, national socialist and other propagandistic products, decoders, tobacco products, medical appliances, medication/drugs, explosives, chemicals or narcotics, and from harassing other users/providers with spam mails or in any other way and from publishing or publicly distributing the contents of other users/providers. The user/provider shall completely indemnify and hold harmless Xohana in this respect.
9. Unlawful contents and contents in violation of contract, abuse of the platform
Users/providers may only make available data and contents to other users/providers if these data and contents do not violate statutory regulations or these GTC. Xohana shall be entitled to refuse, without stating reasons, to publish data and contents online or to make them available to providers/users and shall be further entitled to delete them at any time without prior announcement.
Users/providers shall be prohibited from using mechanisms, software or scripts in connection with usage of the Xohana platform, and from blocking, overwriting, modifying and copying software, in particular from copying software based on robot/crawler search engine technologies.
Users/providers shall be prohibited from using the photographs, texts, audio and video materials as well as logos used by Xohana. Users/providers shall be further prohibited from reproducing contents of the Xohana platform and from creating a browser or border environment around the content of the platform.
10. Right of use concerning content
Xohana shall acquire unlimited, irrevocable, gratuitous and assignable right of use concerning the data and contents provided by users/providers, including, without limitation, the right to permanently display and publish said data and contents on the Xohana website or on any other of its websites and to use them for marketing the Xohana website, and shall, to this end, have the right to replicate, digitalise, advertise, amend, newly produce said data and contents and to make them available to third parties in order to enable users to enter into contact with providers and vice versa.
11. Discontinuation of platform operations, termination
Xohana shall be entitled, at any time, to completely discontinue or temporarily suspend operation of the Xohana platform, without stating reasons.
Users/providers and Xohana may terminate this contract at any time with immediate effect, unless the relevant provider has submitted a binding offer, in which case the termination shall take effect once the binding offer expires or, where applicable, any associated legal transaction has been completed.
12. Limitation of liability, warranty
Xohana shall only be liable in cases of intent or gross negligence. Any liability for slight/ordinary negligence – with the exception of personal injury – shall be excluded.
Xohana shall only be liable for its own contents on the market place. If Xohana obtains knowledge of unlawful contents on external websites, it shall immediately block access to the relevant sites.
Xohana has no possibility to verify whether the identity of a registered user/provider is true and thus assumes no warranty or liability whatsoever for the correctness and completeness of any data provided by users/providers.
Xohana warrants that the platform and its applications are based on state-of-the-art technology. Users who make use of the Xohana platform free of charge shall have no claims based on warranty. Xohana points out that interruptions of availability, transmission delays and transmission errors may occur due to factors outside its sphere of influence or due to necessary maintenance works.
13. Applicable law
These General Terms and Conditions shall be governed by Austrian law, excluding the conflict-of-law rules, however, only to the extent that the protection granted to the user/provider, provided s/he is a consumer within the meaning of the Consumer Protection Act, is not revoked by mandatory legal provisions of the state in which the user/provider has her/his permanent residence.
14. Place of jurisdiction
For all disputes arising directly or indirectly from the legal relationship between the user/provider and Xohana, the user/provider may chose, provided s/he is a consumer within the meaning of the Consumer Protection Act, between the competent court at her/his residence or at the registered office of Xohana. The exclusive venue for users/providers who are not consumers within the meaning of the Consumer Protection Act shall be Graz.
