General Terms and Conditions

1. Scope of Application

1.1 These General Terms and Conditions apply to all contracts between SimpliServ GmbH, Gewerbepark West 2a, 8504 Preding, - hereinafter the “Provider” - and its customers regarding the use of the SimpliServ software platform as well as related services.

1.2 The authorized managing director of the Provider is Luca Malli.

1.3 These Terms and Conditions apply exclusively to entrepreneurs. Entrepreneurs within the meaning of these Terms and Conditions are natural or legal persons or partnerships with legal capacity for whom the transaction forms part of the operation of their business.

1.4 Conflicting terms of the customer or terms deviating from these Terms and Conditions shall only apply if their validity has been expressly agreed to in writing.

1.5 Individual agreements, offers, order forms, order confirmations or other written arrangements between the Provider and the customer shall take precedence over these Terms and Conditions in the event of contradictions.

1.6 The components of a contract between the Provider and the customer rank in the following order of precedence: (i) the respective individual SaaS contract or the individual agreement, (ii) the data processing agreement (DPA / Auftragsverarbeitungsvertrag), to the extent applicable, (iii) these Terms and Conditions. In the event of contradictions, the higher-ranking contract components shall take precedence over the lower-ranking ones; data protection provisions of the DPA shall take precedence in data protection matters.

2. Subject Matter of the Contract

2.1 The Provider makes the web-based SimpliServ software platform available to the customer as Software-as-a-Service for paid use.

2.2 SimpliServ is a B2B operations and service management software, in particular for service businesses, workshops, mobility providers and similar companies.

2.3 The specific scope of services results from the respective booked package, the offer, the order form, the service description or other individual agreements.

2.4 The Provider owes the provision of the software to the agreed extent, but not any particular economic success of the customer.

2.5 To the extent expressly agreed, the Provider may render additional services, in particular individual adaptations, configurations, interface connections, data imports, training, onboarding, support services or other project-related services.

3. Conclusion of Contract

3.1 Offers of the Provider are subject to change and non-binding, unless they are expressly designated as binding.

3.2 A contract is concluded through the acceptance of an offer, the signing of an order form, a written order confirmation, the activation of the customer account or in any other expressly agreed manner.

3.3 The Provider is entitled to refuse to conclude contracts without stating reasons.

4. Services and Availability

4.1 The Provider makes SimpliServ available to the customer for use via the internet within the scope of technical and operational possibilities.

4.2 The Provider is entitled to continuously further develop the software, to change, extend, restrict functions or adapt them to new technical, legal or economic requirements, provided that the essential contractually agreed main services are not unreasonably impaired thereby.

4.3 The Provider is entitled to carry out maintenance work, updates, upgrades, security measures and technical adaptations. During such measures, the availability of the software may be temporarily restricted.

4.4 In particular, there is no defect and no downtime for which the Provider is responsible in the case of:

a) announced maintenance work,

b) security-related measures required at short notice,

c) disruptions outside the Provider's sphere of influence, in particular failures of telecommunications networks, hosting infrastructure, third-party providers, integrations or external services.

4.5 The scope of support as well as any support times are governed by the respective booked package or by separate agreement.

5. Rights of Use

5.1 The Provider grants the customer, for the duration of the contract, a non-exclusive, non-transferable and non-sublicensable right to use SimpliServ to the contractually agreed extent for its own operational purposes.

5.2 The customer is not entitled to:

a) make the software available to third parties for use, unless this has been expressly agreed,

b) reproduce, modify, decompile, reverse engineer or otherwise technically analyze the software, unless this is mandatorily permitted by law,

c) pass on access data to third parties without authorization, or

d) circumvent technical protection measures.

5.3 All rights to the software, the underlying concepts, the design, the source code, the documentation, the trademarks, logos and other content remain exclusively with the Provider.

6. User Accounts and Access Data

6.1 Within the scope of the booked package, the customer is given the possibility to create user accounts.

6.2 The customer is obliged to keep access data confidential and to protect it against unauthorized access by third parties.

6.3 User accounts may only be used by the respective authorized persons. Abusive disclosure or shared use of access data is not permitted.

6.4 The Provider is entitled to temporarily block access if there is a justified suspicion of misuse, security risk or use in breach of contract.

7. Cooperation Obligations of the Customer

7.1 The customer is obliged to carry out all cooperation acts required for the performance of the contract in a timely and complete manner.

7.2 The customer is in particular obliged to:

a) provide correct and complete information,

b) manage its user accounts on its own responsibility,

c) ensure the technical connection to the internet as well as suitable hardware and software itself,

d) ensure the lawfulness of the content and data it posts, stores, processes or transmits,

e) comply with applicable statutory requirements, in particular data protection provisions.

7.3 The customer is responsible for all activities that take place under its user accounts, insofar as it is responsible for them.

8. Individual Adaptations and Additional Services

8.1 Individual adaptations, extensions, integrations, special developments or project-related services are only rendered on the basis of a separate agreement.

8.2 The Provider is not obliged to implement the customer's individual adaptation requests.

8.3 Unless expressly agreed otherwise, all rights to individual adaptations, extensions, integrations, concepts, program codes, templates, technical solutions and other work results remain with the Provider. The customer only receives a right of use thereto to the contractually agreed extent.

9. Third-Party Providers and External Services

9.1 The Provider is entitled to engage third-party providers, subcontractors, hosting service providers, storage providers and other external service providers to render its services.

9.2 The Provider uses in particular external technical infrastructures and services, for example for hosting and data storage.

9.3 Insofar as SimpliServ is connected to or supports services, interfaces, platforms or systems of third parties, the Provider assumes no warranty that these remain available, unchanged, compatible or free of disruptions at all times.

9.4 Changes, restrictions or failures of external services or interfaces do not constitute a defect in the Provider's services, insofar as the cause lies outside the Provider's sphere of influence.

10. Prices and Payment Terms

10.1 The prices specified in the offer, order form or otherwise in the individual agreement shall apply. All prices are net plus the respective applicable statutory value-added tax.

10.2 The customer may book services on a monthly or annual basis, unless otherwise agreed in the individual case.

10.3 Recurring fees are due in advance for the respective agreed billing period.

10.4 Additional services, in particular individual adaptations, special developments, training, configurations, data imports or other project-related services, are billed separately.

10.5 Unless otherwise agreed, invoices are due for payment without deduction within 14 days of the invoice date.

10.6 The customer is not entitled to set off counterclaims unless these have been expressly acknowledged by the Provider or have been established by a final and binding court decision.

10.7 The Provider is entitled to adjust the prices for future contract periods. A price adjustment will be communicated to the customer in text form at least 60 days before the end of the respective current contract period. If the customer does not accept the announced price adjustment, it is entitled to terminate the contractual relationship extraordinarily, deviating from the ordinary notice period, with effect from the end of the current contract period; the termination must be received by the Provider in text form no later than 14 days before the end of the current contract period. If no timely termination takes place, the announced price adjustment shall be deemed agreed from the beginning of the next contract period, provided that the Provider has expressly informed the customer of this legal consequence in the notification. During a current, prepaid contract period, the agreed prices remain unchanged.

11. Default of Payment

11.1 In the event of the customer's default of payment, the Provider is entitled to charge statutory default interest as well as necessary reminder and collection costs.

11.2 In the event of default of payment, the Provider is entitled, after an unsuccessful reminder and a reasonable grace period, to block access to the software in whole or in part.

11.3 The blocking does not affect the customer's obligation to pay the agreed fees.

11.4 Further statutory and contractual claims of the Provider remain unaffected.

12. Contract Term and Termination

12.1 Unless otherwise agreed, contracts are concluded with a minimum term of 12 months.

12.2 After expiry of the minimum term, the contract is automatically extended by a further 12 months each time, unless it is terminated by one party in writing, observing a notice period of 30 days to the end of the respective contract term.

12.3 The right to extraordinary termination for good cause remains unaffected.

12.4 Good cause entitling the Provider to extraordinary termination exists in particular if:

a) the customer remains in default with payments despite a reminder and the setting of a grace period,

b) the customer uses the software unlawfully or in gross breach of contract,

c) the customer endangers or circumvents security measures,

d) the customer fails to remedy serious breaches of contract despite being requested to do so.

13. Customer Data, Export and Deletion

13.1 The customer remains responsible for all content and data it posts, uploads, stores or processes in SimpliServ.

13.2 The Provider is not obliged to generally review the content stored by the customer from a legal or substantive perspective.

13.3 Within the scope of the technically available functions, the customer can carry out data exports in common formats, in particular CSV, JSON or PDF.

13.4 After the end of the contract, the customer is given the possibility to export its data for a period of 30 days, insofar as no legal or technical reasons preclude this.

13.5 After expiry of this period, the Provider is entitled to delete the customer's data, provided that no statutory retention obligations or other legal obligations preclude this.

13.6 The Provider is entitled to remove backup copies and technically necessary residual data with a time delay within the scope of customary backup and deletion cycles.

14. Data Protection

14.1 Insofar as the Provider processes personal data on behalf of the customer within the scope of the performance of the contract, the parties conclude a separate data processing agreement.

14.2 Unless otherwise provided by law, the customer remains the controller under data protection law for the personal data processed by it by means of SimpliServ.

14.3 The Provider takes appropriate technical and organizational measures to protect the processed data within the scope of the statutory requirements and the separately concluded data processing agreement.

15. Warranty

15.1 The Provider warrants that SimpliServ essentially corresponds to the agreed service description.

15.2 Insignificant deviations or impairments do not give rise to warranty claims.

15.3 The customer must report defects in writing and in a comprehensible manner without undue delay.

15.4 In the case of justified defects, the Provider is initially entitled and obliged to remedy the defect or provide a substitute within a reasonable period.

15.5 If the rectification ultimately fails, the customer may demand a reasonable price reduction or, provided that the defect is not merely insignificant, terminate the contract for good cause.

15.6 In particular, no warranty exists for defects, disruptions or restrictions caused by:

a) improper use by the customer or its users,

b) technical environments or systems of the customer,

c) external services, interfaces or third-party providers outside the Provider's sphere of influence,

d) interventions in the software by the customer or third parties,

e) force majeure.

16. Liability

16.1 The Provider is liable without limitation only for damages caused by intent or gross negligence.

16.2 In the case of slight negligence, the Provider is liable only for the breach of essential contractual obligations whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the customer may regularly rely; in this case, liability is limited to the typically foreseeable damage.

16.3 To the extent permitted by law, liability for lost profit, indirect damages, consequential damages, pure financial losses, savings not achieved and third-party claims is excluded.

16.4 To the extent permitted by law, the Provider's liability is limited in amount to the fee that the customer actually paid for the affected service in the last 6 months before the occurrence of the event giving rise to the damage.

16.5 In the case of data loss, the Provider is liable only to the extent that the damage would not have been avoidable even with proper and regular data backup by the customer.

16.6 The foregoing limitations of liability also apply for the benefit of the Provider's bodies, employees, vicarious agents and subcontractors.

17. Confidentiality

17.1 Both parties undertake to keep confidential all confidential information of the respective other party that becomes known to them within the scope of the contractual relationship and to use it exclusively for the performance of the contract.

17.2 Confidential information includes in particular commercial, technical, organizational and operational information, data, documents, processes, concepts and other information not publicly known.

17.3 The confidentiality obligation does not apply to information that:

a) is generally known or publicly available without a breach of this agreement,

b) was already demonstrably lawfully known to the receiving party,

c) was lawfully obtained from third parties, or

d) must be disclosed due to a statutory obligation or an official or judicial order.

17.4 The confidentiality obligation continues to apply for a period of three years even after the termination of the contractual relationship.

18. Reference Naming

18.1 The Provider is entitled to name the customer as a reference using the company name, business designation and logo and, for this purpose, to use it on the website, in presentations, sales documents and comparable company presentations.

18.2 If the customer objects to this use in writing, the Provider will cease further use within a reasonable period.

19. Amendments to the Terms and Conditions

19.1 The Provider is entitled to amend these Terms and Conditions with effect for the future, provided that the amendment is objectively justified and reasonable for the customer.

19.2 Amendments to the Terms and Conditions are communicated to the customer in text form.

19.3 If the customer does not object to an amendment within 30 days of receipt of the notification, the amendments shall be deemed approved, provided that the Provider has expressly informed the customer of this legal consequence in the notification.

19.4 If the customer objects in good time, the previous Terms and Conditions continue to apply. In this case, the Provider reserves the right to terminate the contractual relationship at the next possible ordinary termination date.

20. Force Majeure

20.1 Neither party is liable for the non-performance or delayed performance of its obligations insofar as this is attributable to events of force majeure.

20.2 Force majeure includes in particular natural disasters, fire, war, terror, strike, pandemics, official measures, power outages, network failures, failures of telecommunications connections or other unforeseeable, unavoidable and serious events outside the sphere of influence of the affected party.

21. Applicable Law

21.1 Austrian law applies exclusively, excluding the conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods.

22. Final Provisions

22.1 Amendments and supplements to contracts must be made in writing, unless a stricter form is required by law.

22.2 Should individual provisions of these Terms and Conditions be or become wholly or partially invalid, impracticable or unenforceable, the validity of the remaining provisions remains unaffected.

22.3 In place of the invalid, impracticable or unenforceable provision, such a provision shall be deemed agreed as comes closest to the economic purpose of the original provision.