Fabasoft Cloud General Terms and Conditions (GTC)

(12.12.2011)

Klicken Sie hier für die deutsche Fassung.

Introduction

Fabasoft Distribution GmbH, Company No FN 294084b, Honauerstrasse 2-4, A-4020 Linz, Austria, (referred to hereinafter also as “Fabasoft”) sells a range of different service packages over the internet.

These General Terms and Conditions (referred to hereinafter also as GTC) govern the contractual relationship between the Customer and Fabasoft regarding the use of service packages selected by the Customer. The Customer can open, read, save and print the current version of this GTC.

1. Subject of Agreement

Upon signing a contract, Fabasoft shall grant the Customer a non-exclusive and non-transferable license to use the service package (hereinafter also referred to as “Contract”) for the duration of the contract concluded with the Customer:

i) To save and manage data on the IT infrastructure hosted at the Fabasoft data center and

ii) To use the software product Fabasoft Folio Cloud hosted at this location and

iii) To use Cloud Apps and/or Mobile Apps, which are operated on the basis of the service package selected by the Customer.

The license granted to the Customer according to this Contract as well as the services rendered by Fabasoft under this Contract are referred to as “Service Packages”.

A detailed and up-to-date description of the features, characteristics and structure of the service package selected by the Customer is specified as follows:

By the Service Package selected by the Customer in the shop.

By the service agreement concluded by the Customer, which if applicable, also contains the technical specifications of the software made available for use with the service package, as well as details about IT specific resources (e.g. available storage space, number of available objects).

By the performance characteristics of data center operation (http://www.foliocloud.com/data-center)

Changes to the herein described GTC and/or performance parameters regarding the service package selected by the customer shall be reserved exclusively to Fabasoft. The version of the GTC published in the shop at the time of the conclusion of the contract or at the extension of the contract period is applicable to the contractual relationship with the Customer. The same applies to the performance parameters of the service package selected by the Customer.

For the contractual relationship with the Customer regarding a free of charge service package, changes to the GTC and performance parameters are possible and applicable during an existing contract period. After publishing in the shop, the most recent version is applicable to the contractual relationship.

2. Conclusion of a Contract

2.1 The proper completion of the purchase of a service package concludes a contract between the Customer and Fabasoft. These GTC are applicable to this contractual relationship. Upon conclusion of the service package, the Customer is sent the invoice with the service agreement (including instructions on how to cancel of this contract) as confirmation of the conclusion of the contract by email.

2.2 Fabasoft does not have the technical means necessary to determine with certainty whether a customer is in fact the person he claims to be. Fabasoft therefore accepts no responsibility for the actual identity of the customer. Each customer is solely responsible for confirming the identity of another customer or user.

3. Duration and Termination of the Contract

3.1. The Contract for a free of charge service package is entered into indefinitely and can be terminated by either party to the Contract without any reasons for doing so having to be stated by giving three months’ notice to the last day of the month in question.

3.2. The term of the agreement for fee-requiring service packages is a minimum of three months. When concluding a contract, the Customer can select a different contract term that is however longer than the minimum contract period. The contract term will be extended by the period specified by the Customer when entering into the Contract (e.g., by three months in the case of a three-month contract, by 12 months in the case of a 12-month contract) if the Contract is not terminated with due notice by the Customer 30 days before the end of the contract term.

3.3. The term of the agreement for fee-requiring service packages is a minimum of three months. When concluding a contract, the Customer can select a different contract term that is however longer than the minimum contract period. The contract term will be extended by the period specified by the Customer when entering into the Contract (e.g., by three months in the case of a three-month contract, by 12 months in the case of a 12-month contract) if the Contract is not terminated with due notice by the Customer 30 days before the end of the contract term.

3.4 Furthermore, the contracting parties shall be entitled to terminate the Contract for good cause without observing notice periods and termination dates with immediate effect.

Any breach of material obligations assumed by the Customer under this Contract, in particular any violation of legal regulations by the Customer (he advertises on behalf of or promotes associations or organizations – or their methods and activities – that are being monitored by security or children protection agencies), submission of incorrect customer data by the Customer to Fabasoft, submission of incorrect payment information by the Customer to Fabasoft or the Customer causes damage or harm to one or more other customers, shall constitute good cause which entitles Fabasoft to terminate this Contract with immediate effect. In general, good cause shall also be deemed to exist if one contracting party no longer has trust in the other contracting party within the continuing obligation due to the actions of this party.

3.5 Notice of termination and notice of termination for good cause must be made in writing in due time and sent by the Customer by email to cancel@fabasoft.com or by submitting the properly completed cancellation form, available online under https://www.fabasoft.com/cancel, and by Fabasoft to the email address specified by the Customer at registration. Should the Customer terminate the Contract, he must specify his first name, surname and registered email address in order for the termination to become legally valid. In the event that notice of termination is given, the date on which the notice of termination is received by the other contracting party shall be authoritative in determining whether the deadline has been met.

3.6 At the latest 14 days after cancellation of a contract, Fabasoft shall inform the Customer via an automatically generated email of the imminent termination of the contract and of Fabasoft’s authorization to delete the customer’s saved data in their data center. At the time of contract termination, Fabasoft shall be explicitly authorized to permanently delete – i.e. the data cannot be restored – data saved by the Customer in their data center. This deletion shall be carried out by Fabasoft irrespective of the quality, nature and importance of this data for the Customer and/or beneficial user.

3.7 In addition, Fabasoft is permitted to permanently delete data saved by the Customer if the Customer is more than 30 days late in making payments. The Customer agrees that Fabasoft is not obligated to keep the Customer’s data and content. Fabasoft therefore recommends that the Customer retrieves and removes and his data from the system prior to the termination date of this Contract.

3.8 If the Customer downgrades from one service package to another service package that offers lower performance parameters at the end of the contract term, he shall adjust the storage volume he uses within 30 days following the end of the contract term to the lower performance parameters of the newly selected service package. Failing this, Fabasoft is entitled to delete customer data as set out in Section 3.5 of these General Terms and Conditions.

4. Registered Customers and Beneficial Users

4.1 Only customers and beneficial users invited or designated by these customers are authorized to use the service package. A customer is a natural person referred to by name who, by virtue of the license granted to the Customer under this Contract, creates a user account and obtains access to the service package.

4.2 A beneficial user is a natural person referred to by name who has opened a personal account and received a fee-requiring service package from a different user. The Customer supporting the beneficial user is Fabasoft’s contractual partner and thereby the fee payer and invoice recipient for the beneficial user’s usage of the service package.

5. Performance Parameters

5.1 The various service package configurations offer contractually defined performance parameters. If these performance parameters specified with the Customer at the conclusion of the respective contract (e.g. the storage volume) are fully utilized, further use of the service package (for instance, data storage) may not be possible.

The Customer has the option to enter into a new contractual relationship with Fabasoft, whereby the Customer selects a service package that offers higher performance parameters.

5.2 The data stored for the Customer is all data for which the Customer is registered as the owner.

5.3 If the Customer upgrades to a service package that offers enhanced performance parameters during the course of the Contract, the payments already rendered by the Customer for the remaining contract term of the service package shall be applied pro rata to the newly selected service package when the Contract is concluded.

5.4 During the course of the contract for a licensed service package, it is not possible to downgrade to a licensed service package with lower performance parameters.

6. Payment, Due Dates, Default Penalties

6.1 Subscription oriented payment

6.1.1 The service package agreed with the Customer and the fee specified in the price list at the time when this Contract is signed or extended shall exclusively govern the charges to be paid to Fabasoft. The prices specified in the price list are final prices denominated in euros. Payments shall be made in euros.

6.1.2 The agreed fee is fixed at the conclusion of the contract and remains unchangeable for the duration of the contract period. For any extended contract period, Fabasoft withholds the right (for the first and all subsequent extended contract periods) to set a new fee for the use of the service package, that then applies from the start of the extended contract period. If the price of an extended contract period is increased by more than 5% in comparison with the last fee charged, the Customer may terminate the contractual relationship within 14 days of the conclusion of the extended contract period with the increased price conditions (more than 5%) in writing to become effective at the end of the month following the charge of the new price. In the case of termination of the contractual relationship by the Customer due to price increase, Fabasoft will charge the Customer the price applicable prior to the price increase for the duration of the notice period.

6.1.3 Payment of the charges is due in advance when the Contract is entered into. The Customer shall pay the fee for the licensed service package by credit card (MasterCard, Visa, AMEX). Fabasoft may require the Customer to pay the agreed monthly fee by automatic bank transfer, direct debit or other similar automatic payment methods.

6.2 Activity oriented payment

6.2.1 These payments concern the use of service packages, where their use involves fee-requiring activities. The price to pay per activity is stipulated in the shop. These prices are given as final price in Euros. Payment is to be made in Euros. The customer shall pay by credit card (MasterCard, VISA, AMEX). These payments shall be due in advance (before the first execution of the activity). If the customer has purchased a package for multiple activities, a time limit exists for these activities to be carried out. The respective time period is stipulated in the shop.

6.3 General conditions

6.3.1 DThe Customer shall not be permitted to offset any receivables to which he is entitled from Fabasoft against payment of the fee. The payment obligation remains in effect regardless of whether the requested user accounts are actually used.

6.3.2 Fabasoft reserves the express right to terminate or suspend the services being provided, without prejudice to any other rights, in the event of late payment by the Customer. The parties agreed to a default interest of 8% above the base rate. In addition, the Customer shall reimburse Fabasoft for any collection costs. Furthermore, Fabasoft shall be authorized to permanently delete data stored by the Customer in its data center.

7. Invoicing

The Customer shall receive an invoice by email within three working days after the Contract is concluded or extended.

8. Warranty

8.1 The requirements of observable and/or content-specific performance and contractual fulfillment and the determination of guaranteed properties and/or the agreed characteristics of the service package agreed with Customer (including, for instance, the hardware and software environment required by the Customer, availability, response times, data storage method, as well as the manner in which the performance parameters are measured, recorded and documented) are solely determined under the terms of the documents specified in Clause 1 of this Contract.

Fabasoft guarantees that the nature, properties and characteristics of the service package agreed in each individual transaction with the Customer will essentially meet the performance parameters assigned to the specific service package in their most recent version.

8.2 If the service is not performed in accordance with the Contract or with errors, and if Fabasoft is able to recreate the situation and this situation falls within Fabasoft’s control, Fabasoft shall undertake to perform the service for the Customer at no additional cost in accordance with the Contract and within a reasonable time. This shall be conditional upon the Customer having lodged an immediate complaint, at the latest two weeks after identifying the problem. If the performance of the service in accordance with the Contract fails in large measure for reasons that fall within Fabasoft’s control, even after the Customer has expressly set a reasonable grace period, the Customer is entitled to terminate the Contract without notice. In this event, Fabasoft shall be entitled to payment for services performed under the Contract until the point at which termination took place. Payment shall be waived only for those services that the Customer can demonstrate within four weeks of termination to be not useful or not of interest to him.

Any further claims on the part of the Customer arising from disruption of service, in terms of quality or quantity, are excluded. This exclusion shall not apply in the event of damage caused intentionally or by gross negligence or of death, bodily injury or damage to health.

8.3 Warranty claims are fully excluded in cases where Fabasoft performs its services under the terms of the Contract regarding the use of a service package at no charge.

9. Compensation

9.1 Fabasoft’s liability for warranty claims, and/or for any losses/damage, shall be limited to the positive damage actually caused, and furthermore to such damage as has been caused intentionally or as a result of gross negligence. Fabasoft shall not be liable for direct and indirect damage. The Customer confirms and expressly agrees that Fabasoft is in no way liable for damages of any sort that the Customer incurs either directly or indirectly following the use of third party content, websites (also hyperlinks), products or resources (hardware and software environment) in connection with service packages. Since Fabasoft has no control over the websites, resources and/or materials of third parties, the Customer hereby confirms and expressly agrees that Fabasoft is not liable for direct or indirect damages or for data loss incurred by the Customer resulting from the use of such websites or resources in connection with the service packages detailed under point 1 of these GTC.

Furthermore, Fabasoft shall accept no liability for any loss of data stored by the Customer. For each individual case covered by the warranty or claim for damages, the maximum amount guaranteed for all possible claims will be limited to the total amount of the fees paid in the last year.

9.2 In providing its services under this Contract for the use of the service package, Fabasoft is reliant on remote data transmission media being available and usable, and on there being an adequate power supply. If Fabasoft is hindered in or prevented from providing services because these essential requirements are not available or not available to the necessary degree, Fabasoft shall not be held responsible for this.

9.3 Fabasoft assures the Customer that it will not access the data and data content stored by it within the scope of the data centre operation without first obtaining the Customer's written consent in each individual case, and will instead merely store such data and content in the data centre. Fabasoft shall therefore assume no responsibility – towards either the Customer or third parties – for the content of the stored data.

Any liability for deletions, corrections, modifications, corruption, loss of or failure to save data by the Customer is hereby excluded. This express exclusion of liability shall also extend to software viruses and any other harmful computer codes, files, scripts or programs which may be contained in the stored data.

9.4 The sole responsibility for the content of the data stored by Fabasoft for the Customer under the Contract governing use of the service package as well as general responsibility for usage behavior shall rest with the Customer, as if the data were stored internally by the Customer on its own hardware and software. The Customer may therefore only use the services provided by Fabasoft under this Contract in accordance with the national, international, interstate and supranational laws that respectively apply. In particular but not exclusively, the Customer shall therefore

(i) not send any email spam or other unsolicited bulk email;

(ii) not store or send any offensive or obscene content, or any content harmful to young people or which violates the personal rights of third parties, or any other illegal or impermissible content;

(iii) not create or introduce any software viruses, worms, Trojan horses or other harmful computer codes, files, scripts, spyware or programs and/or send or store any software viruses known to the Customer (or which ought to have been known to the Customer);

(iv) not take any measures capable of compromising Fabasoft’s integrity or performance, or which could harm data stored by Fabasoft;

(v) not attempt to gain unauthorized access to Fabasoft’s data center operations or the systems and networks associated with these, in particular by assuming the identity of other users or by using false or incorrect information on his identity.

9.5 In addition, the Customer undertakes to notify Fabasoft without delay of any unauthorized use of his/her/a user’s account as well as to inform Fabasoft of any other violation of the data security regulations which becomes known to or is suspected by the Customer. In such cases the Customer shall take without delay all reasonable measures to promptly prevent these types of data security violations.

9.6 The Customer undertakes to indemnify Fabasoft against any claims or legal action brought against Fabasoft in connection with all such procedures by any person whomsoever, and against any claims, costs, compensation payments, direct and indirect damages, and consequences.

10. Intellectual Property

Fabasoft alone, as well as its licensors, shall be entitled to all rights and legal claims, including all associated intellectual property rights, to the software products made available for use, and to suggestions for improvements, ideas, upgrade enquiries, feedback, recommendations or other information provided by the Customer in connection with the software products made available for use. This Contract shall not constitute a sale, nor assign any rights of ownership to or concerning the use of software products provided for use by Fabasoft. As a result, the Customer is not permitted to assign or amend these rights. The product names of the software products available for use are trademarks of Fabasoft or its affiliated companies, to which no ownership rights or rights of use shall be granted to the Customer.

11. Newsletter

11.1 Fabasoft is entitled to send its regular newsletters to Customers of a service package. In these newsletters, Fabasoft provides information, for example, on new features and product information for the service package as well as on other Fabasoft products.

11.2 By signing up as a Customer of a service package, the Customer expressly consents to receiving electronic mail, particularly newsletters. If the Customer no longer wishes to receive information and/or newsletters electronically, he or she can send an email to the following email address: unsubscribe@fabasoft.com.

12. General Provisions

12.1 The contracting parties expressly guarantee that they are legally authorized to enter into the Contract on the use of a service package. The Customer shall furthermore expressly assure that the information on his identity is accurate and that no false information is or shall be provided in the future in order to gain access to the contracted service package. In addition, the Customer give its assurances that the payment details (account details, credit card numbers, etc.), where provided, are accurate.

12.2 Fabasoft reserves the express right to amend or add to these General Terms and Conditions at any time. The Customer shall regularly review the most recent version of the GTC (refer to http://www.fabasoft.com/contract).

In accordance with the above provisions, reference is made to the most recent descriptions in each case in the sense of a dynamic reference. The referenced documents and links are integral parts of this Contract.

12.3 The place of fulfillment for all duties of the contracting partners arising under this Contract shall be Linz.

12.4 These General Terms and Conditions, the Contract governing the use of a service package, and the question of its effective entry into force, as well as its anticipatory and after effects, shall be subject exclusively to Austrian law, to the express exclusion of the application of international private law, as well as to the express exclusion of the United Nations Convention on Contracts for the International Sale of Goods. The definitive language for this contract is German. Texts available in other languages represent a non-binding service.

12.5 The place of jurisdiction shall be the competent court in Fabasoft’s place of business.

12.6 In the event that one or more provisions of these General Terms and Conditions are or become ineffective, the effectiveness of these General Terms and Conditions as a whole shall not be affected by this. In this case, the contracting parties shall be bound to replace the ineffective provision with an effective provision which most closely reflects the commercial purpose of the ineffective provision. The same shall apply to any omissions from this Agreement.

12.7 Headings used in these General Terms and Conditions are used solely for reasons of structure and to aid the readability of the document. All provisions are to be drawn on when interpreting the GTC, regardless of their position in the document itself.

12.8 The Customer confirms that he has read these General Terms and Conditions and all sources listed as well as links and appendices referred to herein in full, has understood them, and agrees to their content.

13. Data Protection Issues

In accordance with the provisions of this Contract, Fabasoft shall be obliged to prevent data, information or materials transferred by the Customer within the scope of its use of the service package provided by Fabasoft under this Contract from being accessed by any person other than Fabasoft itself, and shall be prohibited from using or publishing such data. Insofar as this data includes ‘personal data’ as defined by the applicable data protection laws, Fabasoft shall observe data secrecy within the meaning of the 2000 Austrian Data Security Act. The performance parameters of the data security concept and the data protection provisions can be viewed by the Customer and beneficial users at: http://www.foliocloud.com/data-security. http://www.foliocloud.com/data-security.

In the event that Fabasoft is bound, due to legal obligation or during the course of legal proceedings in court or other state authority, to make saved customer data available, Fabasoft will proceed as follows:

(i) Fabasoft will inform the customer as quickly as possible (electronically) in order to give the customer the opportunity to attempt to contest the making available of their data by means of legal protection measures at their own cost.

(ii) Fabasoft will – within reasonable means and extent – cooperate with the customer, in order to protect their data protection interests.