TOS, callrichard, 28.11.2024

The following translation is for your information only. In the event of any conflict or inconsistency between this translated version and the Austrian version (including as a result of delays in translation), the Austrian version shall supersede.

General Terms and Conditions of Callrichard

Status: 28.11.2024

1. Scope

1.1 These General Terms and Conditions (hereinafter referred to as "GTC") apply to the provision and use of the platform of Callrichard GmbH (hereinafter referred to as "Callrichard Platform" or the "Platform") by Callrichard, chatarmin.com GmbH, Josef-Brennerstr. 11/11, A-3400 Klosterneuburg, or a partner authorized by Callrichard GmbH to distribute the platform (hereinafter referred to as "Callrichard"). The services offered by Callrichard are exclusively directed at entrepreneurs within the meaning of the ABGB (hereinafter "Customer", together with Callrichard the "Parties").

1.2 Deviations from these GTC shall only be deemed agreed if they have been expressly confirmed in writing by Callrichard. In particular, Callrichard's mere failure to object to Customer's general terms and conditions shall not cause them to be deemed agreed. This also applies if Callrichard performs services without reservation in the knowledge that the Customer's terms and conditions conflict with or deviate from these GTC.

1.3 The exact subject matter and scope of the available functionalities of the Callrichard platform, Callrichard's obligations in this respect, any Professional Services to be provided by Callrichard, as well as the remuneration to be paid, are governed by the usage agreement concluded between Callrichard and Customer (hereinafter the "Usage Agreement"), any supplementary agreements (each a "Supplementary Agreement"), and Callrichard's Service Level Agreement (hereinafter the "SLA", together with the Usage Agreement, the GTC, and any Supplementary Agreements, the "Contract Documents").

1.4 Definitions, unless defined in these GTC, shall have the same meaning as under the User Agreement.

1.5 For good cause, in particular in the event of changes in the legal situation, supreme court rulings, the Callrichard platform, or market conditions, Callrichard may notify the Customer of an amendment to these GTC and/or the SLA, indicating the material changes. The amended GTC and SLA shall be deemed agreed if the Customer has not objected to the amendment within one month after receipt of the notification and Callrichard has specifically pointed out this consequence to the Customer when notifying the amendments. Changes to the service content agreed with the Customer require the Customer's express consent irrespective of the above provisions.

2. Provision of the Callrichard platform; set-up and support

2.1 The Callrichard Platform provides customers with a system for automating dialogues with their customers ("End Customers"), including spoken dialogues via telephone ("Channel Telephone"), textual dialogues via tools provided by the customer (e.g., chat widgets on the Customer's website) ("Channel Chat"), external messenger services (e.g., WhatsApp, Facebook Messenger, Google Assistant) ("Channel Messenger"), and external voice applications (e.g., Google Assistant, Siri, Alexa) ("Channel Voice", together with Channel Phone, Channel Chat, and Channel Messenger, the "Channels"). During the Dialogues, data of the Customer, including (personal) data about end customers (collectively, the "Customer Data"), is processed. The Customer Data may be transmitted to the Callrichard Platform by the Customer itself or by engaging service providers (e.g., WhatsApp, Facebook, Amazon, Google) (the "Third Party Service Providers") contractually associated with the Customer or its End Customers. Callrichard acts solely as a technical service provider for the Customer in the communication between the Customer and the End Customer. Responsibility for the content of the dialogues, conversation topics, and the collection, processing, and use of customer data lies exclusively with the Customer.

2.2 Callrichard provides the Customer with the Callrichard Platform with the following features (hereinafter collectively referred to as the "Features"):
a) Software that connects and executes speech recognition services and classification services, queries customer systems, provides dialog content via API, and enables automated dialogs through the aforementioned channels (the "Callrichard Engine"); and
b) A graphical, web-based user interface for configuring, managing, and training the Callrichard Platform and automated dialogs (the "Callrichard Frontend").

2.3 The exchange of customer data between the Callrichard Platform and customer systems occurs via a direct connection, possibly involving their third-party service providers or a Callrichard service provider. Callrichard will assist the Customer in setting up access to the Callrichard Platform. Additional fees for the setup by third-party service providers are borne by the Customer.

2.4 Callrichard utilizes external service providers, such as Tenios GmbH, for the Telephone channel and Google Dialogflow and/or Microsoft Azure Cognitive Services for other channels (the "Callrichard Service Providers"). Callrichard may engage additional third parties or replace existing service providers while ensuring compliance with the User Agreement, especially regarding data protection.

2.5 Callrichard shall make the features of the Callrichard Platform available in accordance with the Usage Agreement and other contractual documents.

Here is the revised version with "Parloa" replaced by "Callrichard" and "Germany" replaced by "Austria":

The following translation is for your information only. In the event of any conflict or inconsistency between this translated version and the Austrian version (including as a result of delays in translation), the Austrian version shall supersede.

3. Use of the Callrichard Platform by the Customer

3.1 The Customer may only use access to the Callrichard Platform for themselves. The Customer undertakes to take appropriate security precautions to ensure that access to the Callrichard Platform is not used by unauthorized persons. Such security precautions include, in particular, the use of a secure password.

3.2 The Customer shall ensure that the third-party service providers used by them, which are to be (indirectly) connected to the Callrichard Platform, provide all required information and perform all reasonable cooperative actions vis-à-vis Callrichard.

3.3 The Customer is responsible for ensuring that the materials, information, and Customer Data provided to Callrichard do not violate legal provisions or the rights of third parties and indemnifies Callrichard against any claims by third parties and other damages, including the reasonable costs of legal defense. This also applies to declarations of consent by End Customers, insofar as these are necessary for data collection and data processing carried out with the help of the Callrichard Platform.

3.4 Callrichard does not owe the establishment and maintenance of the data connection between the Customer's IT systems (or its third-party service providers), in particular the Customer's respective contact center, and the Handover Point. "Handover Point" refers to the router exit of Callrichard's data center or its subcontractor through which the Callrichard Platform operates. Callrichard is not responsible for any malfunction beyond the Handover Point, except for the involvement of Callrichard's service providers and their IT systems. The Customer is responsible for the procurement and maintenance of the hardware and connections to public telecommunications networks required by them. Costs related to setting up and maintaining the online connection on the Customer's side are borne by the Customer. Callrichard is not liable for the security, confidentiality, or integrity of data communication conducted via third-party communication networks (insofar as these do not act as Callrichard Service Providers). Callrichard is also not liable for disruptions in data transmission caused by technical errors or configuration problems on the part of the Customer.

3.5 The Customer agrees that Callrichard may disclose the fact of the cooperation between Callrichard and the Customer for marketing purposes in advertising materials (e.g., in presentations) and on Callrichard's website. Callrichard may also use the Customer's name and company logo (even if protected by trademarks or other marks) for this purpose. Other disclosures (e.g., in press releases or case studies) require the Customer's prior consent. The Customer may revoke granted consent at any time in text form (e.g., by email) with effect for the future.

4. Operation and Changes to the Callrichard Platform

4.1 Callrichard endeavors to ensure that the Callrichard Platform is always state-of-the-art. Callrichard is entitled to regularly perform and/or introduce updates, new versions, or upgrades of the Callrichard Platform (hereinafter collectively referred to as "Updates") to adapt the Callrichard Platform to new technical or business needs, implement new functions, or make changes to existing functionalities. Further details are governed by the SLA.

4.2 If and to the extent that an Update materially limits the agreed contractual use of the Callrichard Platform ("Material Change"), Callrichard shall inform the Customer in text form at least four (4) weeks before the Material Change takes effect ("Change Notice"). If the Customer does not object to the Material Change within two (2) weeks of receiving the Change Notice ("Objection Notice"), the Material Change shall become part of the usage agreement with the Customer. Callrichard shall inform the Customer about their rights, including (i) the right to object, (ii) the period provided for doing so, and (iii) the legal consequences of failing to object within the stipulated timeframe.

4.3 If the Customer objects to the Material Change, Callrichard shall continue providing the Callrichard Platform to the Customer without implementing the Material Change unless doing so is technically or organizationally infeasible or unreasonable. In such cases, the Customer may terminate the User Agreement extraordinarily within four (4) weeks ("Exercise Period"). If the Customer does not exercise this right, the Material Change becomes part of the agreement. Callrichard will inform the Customer about their rights, including the Exercise Period and the legal consequences of non-exercise.

5. Professional Services

5.1 Under the User Agreement, additional consulting and support services (e.g., for testing the Callrichard Platform) may be agreed upon. Callrichard provides such Professional Services directly or through Callrichard Service Providers.

5.2 The type and scope of the Professional Services and the executing service provider are specified in the Usage Agreement or corresponding Supplementary Agreements. Callrichard will log the time spent on Professional Services and notify the Customer when the allocated Professional Services are exhausted. Callrichard will provide evidence of services rendered upon request, with Callrichard's time records deemed accurate unless proven incorrect by a legally binding judgment.

5.3 A "person day" refers to an eight-hour workday, regardless of the number of personnel performing these hours.

6. Variable Remuneration; Definitions; Accounting

6.1 In addition to the agreed fixed monthly fee, the Customer owes variable compensation based on the Channels used and End Customer interactions with the Callrichard Platform. Details are governed by the Usage Agreement.

6.2 Definitions:
a) "ASR" (Automatic Speech Recognition): Refers to automated interpretation of human speech, including recognizing speech, keywords, and speaker identification.
b) "NLU" (Natural Language Understanding): Refers to systems allowing natural language interactions between humans and computers.
c) "TTS" (Text-to-Speech): Refers to converting text into speech using synthetic output designed to sound natural.

6.3 Callrichard will notify the Customer within thirty (30) days after the end of each month about the accrued variable remuneration, providing detailed parameters (e.g., interactions, minutes, letters) in a Monthly Report. The Customer has fourteen (14) days to raise objections, failing which the Monthly Report is deemed accepted.

Here are sections 7-10 with the replacements made:

7. Deadlines and Dates

7.1 Callrichard will provide the services owed in connection with the provision of the Callrichard Platform within a reasonable period of time. The dates for the provision of services specified by Callrichard in the license agreement or other documents used for the performance of the contract are non-binding planned dates. These dates shall only be considered binding performance dates (hereinafter "Binding Performance Dates") if they are expressly designated as Binding Performance Dates.

7.2 Insofar as Binding Performance Dates have been agreed and Callrichard is in default, the Customer shall provide a reasonable period of grace, which as a rule shall not be less than four (4) weeks.

8. Remuneration and Terms of Payment

8.1 The remuneration agreed between the Customer and Callrichard for the use of the Callrichard Platform and the respective terms of payment result from the Usage Agreement.

8.2 All fees and prices shown by Callrichard are net prices plus statutory value-added tax.

8.3 Invoice amounts issued are payable within 14 days of receipt of the invoice by the Customer without deduction.

9. Warranty for Defects of Quality and Title

9.1 Callrichard warrants that the Callrichard Platform, when used in accordance with the contract, complies with the agreed scope of services and is not afflicted with material defects or defects of title (hereinafter "Defects") that more than insignificantly impair the suitability of the Callrichard Platform for the contractually agreed use. Insignificant deviations from the service description agreed with the Customer under the Usage Agreement are not considered Defects.

9.2 The Customer is obligated to notify Callrichard immediately of any Defects that occur. Callrichard shall remedy any Defects in the Callrichard Platform that have occurred and been duly reported within a reasonable period of time. The details are regulated in the SLA.

9.3 The Customer shall grant Callrichard a period of four (4) weeks for the rectification of material Defects. Prior to the expiration of this period, an extraordinary termination pursuant to Section 14.2 below or Section 543 para. 2 sentence 1 no. 1 of the Austrian Civil Code (BGB) due to failure to provide use in accordance with the contract shall be excluded. Any other rights of the Customer under the SLA and these GTC in the event of material Defects shall remain unaffected.

10. Liability

10.1 Callrichard merely enables the technical design and automated execution of dialogues between the Customer and its End Customers via the Callrichard Platform. Callrichard is not liable for the content of the dialogues designed by the Customer or for the fact that the dialogues carried out via the Callrichard Platform achieve an actual or economic success.

10.2 The strict liability according to § 536 a para. 1 of the Austrian Civil Code (BGB) for Defects of the Callrichard Platform already existing at the time of the conclusion of the contract is excluded, unless the Defect concerns a feature of the Callrichard Platform guaranteed to the Customer.

10.3 Callrichard will act as a service provider to the Customer in the performance of Professional Services and will perform (or have its service partners perform) the Professional Services in accordance with industry standards. Callrichard is not responsible for the occurrence of an expected result or an economic success.

10.4 Callrichard shall be liable for damages in the event of:
(i) Intent or gross negligence on the part of Callrichard or its legal representatives or vicarious agents;
(ii) Negligent breach by Callrichard or its legal representatives or vicarious agents of such contractual obligations, the fulfillment of which is a prerequisite for the proper execution of the contract and on the fulfillment of which the contractual partner may regularly rely (so-called cardinal obligations), but limited to typical damages which were foreseeable at the time of the conclusion of the User Agreement;
(iii) Negligence by Callrichard or its legal representatives or vicarious agents causing injury to life, body, or health; or
(iv) A mandatory legal liability of Callrichard.

10.5 Any contributory negligence on the part of the Customer shall be taken into account. In particular, Callrichard shall only be liable for the recovery of data to the extent that the Customer has taken all necessary and reasonable data backup precautions and has ensured that the data can be reconstructed from data material held in machine-readable form with reasonable effort.

10.6 This liability provision is conclusive. It applies with regard to all claims for damages, regardless of their legal basis, in particular also with regard to pre-contractual or ancillary contractual claims. It also applies in favor of Callrichard's legal representatives and vicarious agents if claims are asserted directly against them.

10.7 The Customer is obligated to immediately notify Callrichard in writing of any damage under the above liability provisions or to have Callrichard record such damage so that Callrichard is informed as early as possible and can possibly mitigate the damage together with the Customer.

Here are sections 11-17 with the requested replacements:

11. Limitation

11.1 Claims of the Customer based on the violation of an obligation not consisting in a Defect shall become statute-barred within one year, beginning with the accrual of the claim, provided there is no intent or gross negligence. This does not apply if the damage to the Customer constitutes personal injury. Claims for personal injury shall become time-barred within the statutory limitation period.

11.2 Withdrawal or reduction shall be ineffective if the claim for performance or the Customer's claim for subsequent performance is time-barred.

12. Rights of Use

12.1 The software underlying the Callrichard Platform is protected by copyright. Callrichard is the sole owner of all intellectual and industrial property rights. Callrichard guarantees that the general operation of the Callrichard Platform is legally permissible, does not violate any laws, regulations, or guidelines, and, in particular, does not infringe on any third-party rights. Callrichard undertakes to indemnify the Customer against justified claims by third parties due to the operation of the Callrichard Platform and to compensate the Customer for any damage incurred in this context (including reasonable costs of legal defense) in accordance with Clause 9.

12.2 The Customer is granted the non-transferable, non-exclusive right, limited in time to the duration of the Usage Agreement, to use the functionalities of the Callrichard Platform via the Internet for the contractually agreed use under the Usage Agreement. The Customer does not receive any further rights. Unless otherwise agreed in the Usage Agreement, the Customer is, in particular, not entitled to allow third parties to use the Callrichard Platform or to make it accessible to third parties, except for third-party service providers.

13. Data Governance; Data Storage and Deletion / Data Protection

13.1 The Parties shall comply with the relevant data protection regulations. Within the scope of the provision and operation of the Callrichard Platform, Callrichard shall act as a processor within the meaning of Art. 28 GDPR  and § 62 DSG with respect to the Customer's personal data. The details are governed by a commissioned data processing agreement that complies with legal requirements.

13.2 Dialogue histories with the Customer's End Customers resulting from the use of the Platform can be stored by Callrichard and are available to the Customer for retrieval in accordance with the configuration made by the Customer in the Callrichard Frontend. Additionally, the Platform can automatically make changes to the Customer Data stored in the Customer's systems when interacting with End Customers. Callrichard may also store the call frequency of dialog components to improve the experience for End Customers. Callrichard has no custodial or safekeeping obligations with respect to Customer Data beyond what is necessary for the use of the Callrichard Platform. The Customer is responsible for complying with any commercial or tax retention obligations.

13.3 The Customer shall ensure that all legal requirements for processing Customer Data collected through interactions with the Callrichard Platform are met, including obtaining valid consent from End Customers, where necessary. The Customer shall promptly inform Callrichard of any revocation of an End Customer's consent regarding Customer Data.

13.4 The Customer is the owner of the Customer Data provided to Callrichard and collected via the Callrichard Platform. Callrichard is not entitled to use Customer Data for purposes outside the performance of the User Agreement. However, Callrichard may use dialogue histories to analyze Platform usage.

13.5 The Customer shall indemnify Callrichard against all claims by third parties (including End Customers or public authorities) and/or hold Callrichard harmless for damages and costs arising from any unlawful or incorrect data processing under applicable statutory provisions, unless Callrichard is responsible for the damage or violation.

14. Offsetting, Retention; Reduction

14.1 The Customer has a right of set-off, reduction, and/or a right of retention against Callrichard only if its counterclaims have been legally established, are undisputed, or have been acknowledged by Callrichard.

14.2 Furthermore, the Customer may only exercise a right of retention if the counterclaim is based on the same contractual relationship.

14.3 The Customer's right to reclaim remuneration not actually owed remains unaffected by the restrictions in Section 14.1.

15. Term and Termination

15.1 The term of the Usage Agreement and the period of notice for ordinary termination shall be governed by the agreements made in the Usage Agreement.

15.2 The right to extraordinary termination of this Usage Agreement for good cause remains unaffected. Good cause shall be deemed to exist for either Party, in particular, if:
a) One of the Parties seriously breaches its contractual obligations, making adherence to the contract unreasonable for the other Party;
b) The Customer is more than two (2) months in arrears with the payment of due user fees or other remuneration, even after the expiry of a reasonable deadline set by Callrichard;
c) Insolvency proceedings are applied for, opened, or refused regarding all or part of a Party's assets;
d) One of the Parties has grounds for insolvency within the meaning of §§ 17-19 InsO;
e) The financial circumstances of a Party deteriorate to such an extent that proper performance of the contract can no longer be expected, even if there is no reason for insolvency under §§ 17-19 InsO.

15.3 Any termination must be made in writing.

16. Secrecy

16.1 The Parties undertake to keep confidential for an unlimited period all information designated as confidential or that is clearly confidential due to the circumstances. Confidential information includes, in particular, information about operational processes, business relationships, trade secrets, and know-how.

16.2 Confidential information does not include information that:
a) Was already known to the receiving Party without a breach of confidentiality;
b) Becomes publicly available through no fault of the receiving Party; or
c) Must be disclosed due to legal obligations or orders from a court or authority.

16.3 Any disclosure of confidential information to third parties, except third-party service providers, requires the prior written consent of the other Party.

16.4 The Parties shall ensure their employees and contractors also comply with confidentiality obligations.

16.5 The Customer agrees not to allow third parties to access the Callrichard Platform or to present the Platform's functionalities to them.

17. Final Provisions

17.1 Amendments, supplements, or cancellations of the Usage Agreement or other contractual documents must be made in writing to be effective, unless otherwise expressly provided or a stricter form is required by law.

17.2 General terms and conditions of the Customer shall not apply.

17.3 The contractual documents, in descending order of priority, are:
a) Supplementary Agreements (if agreed);
b) The Usage Agreement;
c) SLA;
d) GTC.

17.4 Should individual provisions of the contractual documents be invalid or unenforceable, this does not affect the validity of the remaining provisions.

17.5 None of the provisions of the Usage Agreement constitutes rights for third parties who are not Parties to this Agreement.

17.6 The Usage Agreement and other contractual documents are governed by Austrian law, excluding conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods.

17.7 For disputes arising from or in connection with the Usage Agreement, the exclusive jurisdiction lies with the Regional Court of Vienna, to the extent permitted by law.