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general terms & conditions

Status: March 01, 2021

Status: March 01, 2021

general terms & conditions of the company CIRCLY

Pre-contractual & contractual information duties for a (web) application according to § 4 FAGG in conjunction with § 7 FAGG

Information about the company:
CIRCLY GmbH,
BIZ, Heinrich Schneidmadl Straße 15, P.O. Box T022N
A-3100 St. Pölten

FN: FN 550475 y
e-mail: contact@circly.at

If no different terms and conditions have been agreed upon, the following general terms and conditions shall apply:

Terms and Conditions Software-as-a-Service (Saas)

1. general
1.1 The Contractor (Contractor) provides services for the Customer (Customer) in the field of information technology and the operation of software components.

1.2 These General Terms and Conditions (GTC) shall apply to all present and future services provided by the Contractor to the Customer, even if in individual cases no express reference is made to the GTC when the contract is concluded. Deviating, conflicting or supplementary general terms and conditions shall not become part of the contract unless their validity is expressly agreed to in writing by the Contractor.

2. essential features of the software & web applications

2.1 CIRCLY offers the possibility to use a software or web applications (together the Application) via API interfaces or via web platforms such as Safari or Google Chrome. This application can be used to retrieve location-specific demand and company-relevant information, enter and read data in independent and autonomous companies that have a cooperation agreement with CIRCLY.

2.2 The exact scope of the services that can be used in each case depends on the participating company and may therefore vary for the individual customer.

3 Conclusion of Contract, Term of Contract
3.1 The contract becomes effective with the signature of both contracting parties and runs for an indefinite period. The contract may be terminated in writing by either contracting party subject to a notice period of 3 months, but no earlier than the end of the minimum term agreed in the contract.

3.2 Each contracting party shall be entitled to terminate the contract prematurely and with immediate effect in writing for good cause. Good cause shall be considered to exist in particular if the respective other contractual partner violates material obligations under the contract despite written warning and threat of termination or if bankruptcy or other insolvency proceedings are filed against the other contractual partner, are opened or are dismissed for lack of assets or if the services of the other contractual partner are impeded or prevented for a period of more than six months due to force majeure.

3.3 Furthermore, the Contractor shall be entitled to terminate the contract prematurely for good cause if essential parameters of the performance of the services have changed and the Contractor can no longer be expected to continue the services for this reason from an economic point of view.

3.4 Upon termination of the contract, the Principal shall immediately return to the Contractor all documents and documentation provided to it by the Contractor.

4 Prices & Payment
4.1 The Contractor's software and applications can be used and provided to the Customer at a charge. The fees and conditions to be paid by the Customer are set in the Agreement. The statutory value added tax shall be charged additionally.

4.2 Unless otherwise agreed in the contract, one-off payments shall be invoiced after the performance of the service and ongoing payments shall be invoiced annually in advance. Invoices issued by the Contractor, including VAT, shall be payable without any deductions and free of charges no later than 14 days after receipt of the invoice. For partial invoices, the terms of payment specified for the overall order shall apply analogously. A payment shall be deemed to have been made on the day on which the Contractor is entitled to dispose of it.

4.3 If the Customer is in default with his payments, the Contractor shall be entitled to charge the statutory interest on arrears and all costs necessary for collection. If the Customer's delay exceeds 14 days, the Contractor shall be entitled to suspend all services. Furthermore, the Contractor shall be entitled to demand immediate payment for all services already rendered, irrespective of any payment deadlines.

4.4 The Customer shall only be entitled to set off counterclaims recognized by the Contractor or legally established. The Customer is not entitled to a right of retention.

4.5 All tax liabilities arising from the contractual relationship, such as legal transaction fees or withholding taxes, are borne by the Customer.

4.6 Should the Contractor be held liable for such charges, the Customer shall indemnify and hold the Contractor harmless.

5 Availability of the Software, Force Majeure
5.1 The use of the software and application of the Contractor and the access shall take place via the API interface to be set up in advance or immediately and after data transfer via the web browser and platforms such as Google Chrome or Safari. The delivery of the application takes place immediately. Shipping costs are usually not incurred.

5.2 As far and as long as obligations due to force majeure, such as war, terrorism, natural disasters, fire, strike, lockout, embargo, sovereign intervention, failure of power supply, failure of means of transport, failure of telecommunication networks or data lines, changes in the law affecting the services after the conclusion of the contract or other unavailability of products cannot be fulfilled on time or properly, this does not constitute a breach of contract.

6 Place of execution

The place of execution of all services of the Contractor is the registered office of the company. This is Heinrich Schneidmadl Str. 15, PF T022N in 3100 St. Pölten Austria.

7. support
The support services shall be divided for the individual parties as described below:

Support for the users of the Service shall be provided by the Contractor.
Support for the Client shall be provided by the Contractor.

The support hours are on weekdays from 10:00 to 18:00. The technical and professional support is available during these hours at contact@circly.at.

8 Obligations of the Customer & User, Cooperation
8.1 Insofar as this is not expressly included in the scope of services of the Contractor, the Customer shall provide a network connection at its own risk and expense.

8.2 The Customer shall be obliged to handle the data, API keys, passwords and log-ins required for the use of the Contractor's services confidentially.

8.3 Unless otherwise agreed, the Customer shall provide the necessary information and cooperation free of charge.

9 Copyrights of the Provider, Licenses
9.1 Insofar as software products are provided to the Customer by the Contractor during the term of the contract or the Customer is enabled to use software products within the scope of the services, the Customer shall be entitled to the non-exclusive, non-transferable, non-sublicensable right, limited to the term of the contract, to use the software products in unmodified form.

9.2 In the absence of any contractual provision to the contrary, the use of software products in a network shall require a license for each concurrent user. If software products are used in branched operations and company locations, a license is required for each branch or location.

9.3 All rights of use of the Customer expire upon termination of the contract or in the event of a delay in payment of the Customer which is not acceptable to the Contractor. The Contractor reserves the right to block access of any kind (e.g. log-ins, interfaces or similar) of the Customer.

9.4 For third-party software products provided to the Customer by the Contractor, the respective license terms of the manufacturer of these software products shall have priority over the provisions of this clause.

9.5 Unless a separate agreement is made, no further rights to software products shall be transferred to the Customer. Ownership of the software, application and the associated source codes shall always remain with the Contractor. Ownership shall not pass to the Customer under any circumstances.

9.6 The rights of the Customer pursuant to §§ 40(d), 40(e) UrhG ( Copyright Act) shall not be affected hereby.

9.7 All documents provided to the Customer by the Contractor, in particular the documentation for software products, may neither be reproduced nor distributed in any way, whether for a fee or free of charge.

10 Data Protection
10.1 The Contractor shall comply with the provisions of the Data Protection Act, the DSGVO and the Telecommunications Act when handling personal data and shall take the technical and organizational measures required for data protection in the Contractor's area of responsibility. The Contractor undertakes in particular to ensure that its employees comply with the provisions of Section 6 of the Data Protection Act.

10.2 The Contractor shall ensure the highest possible technical data security for the Customer's data. Cloud storage services with German quality cloud providers are preferred and data processing contracts are concluded. Sensitive data shall be protected by the use of state-of-the-art encryption technologies (AES-256) and shall only be accessible to responsible project employees of the Contractor.

10.3 The data protection declaration iSd Art 13 and 14 DSGVO and the processor agreement iSd Art 28 Abs 3 DSGVO can be requested under contact@circly.at.

11 Liability
11.1 The Contractor shall not be liable for damage, in particular loss of data, or damage to software or hardware as well as financial losses, which arise as a result of its service, except in the case of gross negligence. In the event of personal injury caused by fault, the Contractor shall be liable without limitation.

11.2 Liability for indirect damage - such as loss of profit, costs associated with a business interruption, loss of data or claims by third parties - is expressly excluded.

11.3 The Contractor shall also not be held liable for any damage resulting from the fact that data and information made available by the Customer himself have been disclosed to third parties.

12 Confidentiality
12.1 Each party to the contract assures the other party to treat all confidential information brought to its attention by the other party in connection with this contract and its execution as confidential and not to make it available to third parties, unless such information is generally known, or was already known to the Recipient without any obligation to maintain confidentiality, or was communicated or provided to the Recipient by a third party without any obligation to maintain confidentiality, or was demonstrably developed independently by the Recipient, or is required to be disclosed by virtue of a legally binding official or judicial decision.

12.2 Subcontractors associated with the Contractor shall not be deemed third parties insofar as they are subject to a confidentiality obligation corresponding in content to this point.

13. Other terms
13.1 The Contractor shall be entitled to change the resources used to provide the Services at its own discretion if no impairment of the Services is to be expected.

13.2 We expressly point out that a "barrier-free design within the meaning of the Federal Act on the Equalization of Persons with Disabilities (Federal Act on the Equalization of Persons with Disabilities - BGStG)" is not included in the offer, unless this has been requested separately/individually by the Customer. If the barrier-free design has not been agreed upon, it shall be incumbent upon the Customer to review the service for its admissibility with regard to the Federal Disability Equality Act (Bundes-Behindertengleichstellungsgesetz - BGStG).

13.3 The Contractor shall be entitled, until revoked, to name the Customer as a customer reference on its own website and in marketing material with a picture, company name and content of the cooperation.

13.4 Amendments and supplements to the contract must be made in writing (email is sufficient). This shall also apply to the cancellation of this formal requirement.

13.5 Should one or more terms of the contract be or become invalid or unenforceable in whole or in part, the validity of the remaining terms shall not be affected thereby. The invalid or unenforceable provision shall be replaced by a mutatis mutandis valid provision which comes as close as possible to the economic purpose of the invalid or unenforceable clause.

13.6 Should one or more terms of the English version of the contract be or become invalid or unenforceable in whole or in part due to the translation, the validity shall not be affected. The invalid or unenforceable provision shall be replaced by a valid provision under Austrian law which comes as close as possible to the economic purpose of the invalid or unenforceable clause.

13.7 Any disposition of the rights or obligations existing on the basis of the contract shall require the prior written consent of the respective other contracting party. However, the Contractor shall be entitled to transfer the contract to a company affiliated with the Contractor under group law even without the Customer's consent.

13.8 Unless expressly agreed otherwise and confirmed in writing, the legal provisions to be applied shall be governed exclusively by Austrian law without its reference standards. For any disputes, the local jurisdiction of the court having subject-matter jurisdiction for the Contractor's place of business shall be exclusively agreed.

13.9 In the event of disputes arising from this Contract which cannot be settled by mutual agreement, the Contracting Parties mutually agree to engage registered mediators (ZivMediatG) specializing in commercial mediation from the list of the Ministry of Justice for the out-of-court settlement of the conflict. If no agreement can be reached on the selection of the business mediators or on the content, legal action shall be taken at the earliest one month after the failure of the negotiations.

13.10 In the event that mediation does not take place or is terminated, Austrian law shall apply in any legal proceedings that may be instituted. All necessary expenses incurred due to a previous mediation, in particular also those for a legal advisor, may be claimed as "pre-litigation costs" in court or arbitration proceedings as agreed.