Last revised on: May 11, 2016
1. General
The mobile-pocket application and the mobile-pocket business portal are operated by bluesource mobile solutions gmbh, Softwarepark 32, A-4232 Hagenberg im Mühlkreis, FN 283982x (hereafter “bluesource”). The following Terms of Use govern the use of the mobile-pocket business portal and are to be observed by the user at all times.
2. Validity
2.1. With the use of the service of the mobile-pocket business portal the principal or business partner (hereafter “Client”) of bluesource agrees to these Terms of Use in their currently valid version, which form the legal basis of the mobile-pocket business portal. The General Terms and Conditions of bluesource apply in addition. Terms of Use or General Terms and Conditions of the Client shall not apply with regard to bluesource.
2.2. The usage relationship between bluesource mobile solutions gmbh (hereafter “bluesource”) and the Client commences upon the Client´s successful registration to the portal. The usage relationship is established for an indefinite period; it can be terminated without providing reasons and with a notice period of two weeks.
2.3. bluesource can terminate the usage relationship with immediate effect for cause, if the Client acts in severe violation of these Terms of Use or of statutory provisions. In this case, the Client can be prohibited to place advertisements and access to the portal can be blocked with immediate effect.
3. Use of the mobile-pocket business portal
3.1. The apps and wallets connected to the mobile-pocket HUB offer users the possibility to store loyalty cards on mobile devices and display these as digital identification. In addition, users can use the application to be informed of current offers by the card operators and other actions of partner businesses.
3.2. Clients can use the mobile-pocket business portal to place advertising material in the applications connected to the mobile-pocket HUB pursuant to these Terms of Use, so that as a result these advertisements are displayed within these applications. An advertisement can consist of an image, a text and/or animated images, furthermore of a sensitive surface that, if clicked, establishes a connection using an internet address provided by the principal to further data in the sphere of the Client (hereafter “links”). The placement of personalized advertising material, i.e. advertisements directed at specific users, is possible.
3.3. Clients can use the mobile-pocket business portal by registering with the required data. After successfully creating a client account, new Clients will receive a confirmation by e-mail at the address they have provided. bluesource reserves the right to reject Clients due to incomplete or misleading entries made in the course of the registration as well as for other reasons at its own discretion.
3.4. For the duration of this usage relationship, bluesource provides Clients with the non-exclusive, non-transferable and non-sublicensable right to use the mobile-pocket business portal in its current version, with updates and other components pursuant to these Terms of Use.
3.5. The Client is not allowed to modify, copy, disassemble, reassemble, publish, reconstruct (“reverse engineer”), build a derivate or duplicate the mobile-pocket business portal or its components. The Client is only allowed to use the mobile-pocket business portal for its own purposes and cannot make it available to third parties.
4. Scope of services, warranty
4.1. The mobile-pocket business portal is provided by bluesource on an “as is, with all its faults”-basis. The Client is as such aware of the fact that, with the current state of technology, it is not possible to place a product that is completely free of errors (i.e. deviations of the placed advertisement from the original). bluesource therefore makes no warranty for the suitability of the portal for specific purposes nor does it guarantee that the portal shall meet the specific requirements or expectations of the Client.
4.2. bluesource assumes no liability especially for errors or defects in the display of placed advertisements if these do not meet the technical requirements necessary for placement, if they are caused by the use of unsuitable software or unsuitable hardware on the part of a user, by disruptions in the communications networks of other operators, other disruptions on the part of third parties or disruptions caused by unforeseeable and inevitable events not attributable to bluesource.
4.3. bluesource shall also bear no responsibility for a shutdown of the mobile-pocket business portal or the mobile-pocket application or website if this does not render the placement of provided advertising material impossible and/or this interruption does not exceed 24 hours (continuously or cumulatively) within 30 days following the commencement of a contractually agreed placement. Not included in this period are interruptions caused by necessary maintenance work. In the event of a shutdown over a significant time period during which the placement of provided advertising material is not available, the Client shall accordingly not be obligated to fulfil its payment obligations for this time period. Any further claims are expressly excluded.
5. Prices and billing
5.1. With regard to the pricing, payment and billing, reference is made to sections 3 and 5 of the General Terms and Conditions of bluesource. All prices are in Euro excluding VAT. Placed advertising material and any other services shall be billed in accordance with the prices individually agreed with the Client or, in the absence of such an agreement, in accordance with the general price list.
5.2. Invoices issued by bluesource are to be settled by the Client no later than 14 days after receipt, including VAT and without any deduction and charges. This also applies to partial invoices.
6. Obligations and liabilities of the Client / content-related requirements for the advertising material
6.1. It is expressly noted that the advertising material and links as provided by the Client and consequently placed are not located within the sphere of influence of bluesource. The responsibility for placed advertising (both in regard to content and type of placement) exclusively lies with the Client and bluesource in this respect assumes no responsibility and liability. bluesource moreover has no control over websites or Client portals reachable via links, is not responsible for the content or information available on these websites or Client portals and can neither assume liability for it nor can it be considered a representative or agent of the operator of these websites.
6.2. For these reasons, the Client warrants and represents that it holds all rights necessary for the placement of advertising material (especially rights of use and exploitation pursuant to the Austrian Copyright Act – Urheberrechtsgesetz). In addition, it represents that it knows and abides by the relevant statutory provisions (especially the relevant competition and data protection regulations), guidelines and industry regulations. The Client shall, in the event that the provided and placed advertising material and links violate statutory provisions and/or the rights of third parties, fully indemnify bluesource and hold it harmless if any claims are asserted against it. bluesource is entitled to stop further placements if a violation of these Terms of Use is detected or if in this context legal action is ongoing or likely to be initiated.
6.3. The Client moreover ensures that the provided advertising material does not contain any content that offends against the public interest or common decency, especially that it does not contain any content of a pornographic, extremist, racist or other discriminatory nature. bluesource is entitled to refuse the placement of such advertising material, to block it and remove it immediately and to temporarily stop the placement of further advertising material until the Client has satisfied bluesource that further advertising material and links provided by it meet the requirements of these Terms of Use.
6.4. In the event that advertising material is refused, blocked or removed pursuant to sections 5.2 or 5.3 of these Terms of Use, the Client´s payment obligations shall remain fully unaffected.
6.5. The Client provides bluesource with all copyright-related rights of use, ancillary copyrights and other rights, including the right to reproduction, dissemination, transfer, transmission, modification, extraction from a database and retrieval as required for the provision of services by bluesource, especially for the placement of advertising material and links in the mobile-pocket applications and website, and this in the temporal, geographical and content-related extent necessary for the provision of the services. These rights are in all cases geographically unlimited and entitle to placement using all known technical procedures.
6.6. bluesource can terminate the usage relationship with immediate effect for cause. Such cause is especially present in the event that the Client acts in serious breach of its obligations pursuant to these Terms of Use or of statutory provisions, if bluesource has serious doubts about the Client´s solvency, if an act or omission on the part of the Client causes damage to the reputation of bluesource or of its services or if insolvency proceedings are opened over the Client´s assets or if the opening of such proceedings is dismissed due to insufficient assets.
7. Liability
7.1. Claims for compensation and liability are in principle excluded for damage of any type (material or immaterial damage as well as loss of profits) that is caused by the use or non-use of information presented or by the use of incorrect and incomplete information, insofar as no premeditation or gross negligence is demonstrated on the part of bluesource.
7.2. The aforementioned limitation of liability does not apply for claims for compensation resulting from injuries to life, body or health as well as in the event of mandatory statutory regulations and essential contractual duties.
7.3. Clients are liable to bluesource for damage caused by their of the mobile-pocket business portal that is unlawful or contrary to these Terms of Use and shall indemnify bluesource with regard to claims of third parties resulting from unlawful use
8. Data protection and impermissible advertising
8.1. By registering with mobile-pocket, the Client agrees to the IT-based storage and use of its data necessary for the creation and execution of the usage relationship, in particular for the use of the mobile-pocket business portal. Reference is expressly made to the privacy statement of bluesource, which is available under https://www.bluesource.at/en/data-protection-statement/.
8.2. If by an act or an omission on part of the Client relevant provisions of the Austrian Data Protection Act (Datenschutzgesetz) and/or the Austrian Telecommunications Act (Telekommunikationsgesetz) and/or competition law are violated, the Client shall be held liable and is obligated to fully indemnify bluesource and hold it harmless in this regard.
8.3. It is noted that the transmission of data on the internet (e.g. in the course of e-mail communication) may not be entirely secure. Full protection against data access by third parties is not possible.
9. Scope of application and amendments
9.1. These Terms of Use in their current version regulate the relationship between bluesource and the Client. They govern all content, functions and other services provided in the framework of the mobile-pocket business portal. If Clients do not agree to these Terms of Use, they are not entitled to use the mobile-pocket business portal and are obligated to cease using it without delay. In order to use certain services by bluesource to their full extent, it may be necessary to download software or content and/or to agree to additional terms of use (hereafter “additional terms”). In this event, any existing additional terms shall be referred to expressly and in due time. The use of certain services – especially those requiring specific agreement to additional terms – can be limited to certain Clients and/or groups of Clients.
9.2. bluesource reserves the right to modify or adapt these Terms of Use due to new developments in statutory law, case-law, technology, our services and/or other reasons. If, as a result of modifications and/or deviations, interests of the Clients could be impaired, these amendments will be announced to the Client at least two weeks before they enter into effect, using the contact data provided during the registration. The further use starting from the point of announcement of the modifications plus two weeks is then subject to the new/amended Terms of Use. If the mobile-pocket business portal continues to be used after two weeks following the announcement of the amendments, this shall automatically constitute agreement to the new, amended Terms of Use.
9.3. Should one or more provisions of these Terms of Use be invalid, this shall not cause the Terms of Use to become invalid in their entirety. The invalid provision shall be replaced by the appropriate statutory provision.
9.4. In the absence of mandatory statutory provisions to the contrary, these Terms of Use are governed by Austrian law under the exclusion of the UN Sales Convention (CISG). Austrian law applies to all legal relationships of the parties to each other resulting from the use of the mobile-pocket business portal. Place of performance and fulfillment is the registered office of bluesource. Legal venue for all disputes between bluesource and businesses arising from or in connection with these Terms of Use is the court at the registered office of bluesource.