Terms of Service
Effective date: September 29th, 2023
1 Preamble
1.1. Fugoya GmbH, FN 556774 k, with its registered office Schottenfeldgasse 24/6B 1070 Vienna, Austria (hereinafter referred to as the "PROVIDER") offers the software application “FUGOYA" in the most current version at the time of conclusion of the contract (hereinafter referred to as the "APPLICATION") to the customer as a software-as-a-service version.
1.2. This Terms of Service (SaaS agreement) are directed exclusively at persons who wish to use the services for professional purposes, therefore entrepreneurs within the meaning of section 1 para 1 no 1 KSchG (Austrian customer protection Act) (hereinafter referred to as "CUSTOMER"). This Terms of Service form an integral part of the offer made to the CUSTOMER.
1.3. The General Terms and Conditions of the CUSTOMER shall expressly not apply.
1.4. The parties are independent contractors. This Terms of Service do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
2 Scope of application and API
2.1. All business relations between the PROVIDER and the CUSTOMER in connection with the rental and use of the APPLICATION shall be governed by this Terms of Service in the version valid at the time of conclusion of the transaction.
2.2. The contractual, ordering and business language is English.
2.3. As part of provision of its Service, PROVIDER may provide CUSTOMER with access to one or more application program interfaces (“API(s)”). PROVIDER may, in its sole discretion, set and enforce limits on CUSTOMER’s use of the API and Customer agrees to adhere to such limits. PROVIDER may also suspend CUSTOMER’s access to the API or cease providing the API at any time.
3 Conditions to use the APPLICATION
3.1. The CUSTOMER is obliged to provide truthful and complete information within the framework of the business relationship and to keep his data (e.g. Log-In data) up to date at all times. He shall treat his data confidentially. If the CUSTOMER suspects misuse by third parties, he must inform the PROVIDER immediately.
3.2. The CUSTOMER shall refrain from all actions that could endanger or impair the PROVIDER's technical service provision (including cyber attacks). Such conduct shall be prosecuted.
3.3. The CUSTOMER shall be fully liable for the conduct of its employees.
3.4. Scraping of information displayed in the APPLICATION is expressly prohibited.
3.5. In the event of unlawful use of the APPLICATION, the PROVIDER reserves the right to deny the CUSTOMER the use of the APPLICATION.
3.6. It is the responsibility of the CUSTOMER to create the electronic infrastructure necessary for the use of the services. This also means that the CUSTOMER has the necessary software and hardware equipment to use the APPLICATION. The PROVIDER is not obliged to provide information or advice in this regard.
3.7. It is the sole responsibility of the CUSTOMER to ensure that the APPLICATION does not include content that contains illegal information. The PROVIDER accepts no liability for any illegal use of the APPLICATION.
4 Conclusion of contract
4.1. After entering the required data in the web mask provided for this purpose, the CUSTOMER places an order with the PROVIDER by clicking the button "use now with payment obligation". The CUSTOMER will then immediately receive an "receipt confirmation" [“Bestellbestätigung”]. This register confirmation does not constitute a contractual relationship. Receipt confirmation and order confirmation (see below) may also coincide.
4.2. Before finally sending an order, the CUSTOMER has the opportunity to check it for any errors and correct it if necessary.
4.3. After receipt of the order, the PROVIDER will check the order. PROVIDER reserves the right to refuse the acceptance of this order. This evaluation may take up to two working days.
4.4. The contractual relationship is only concluded as soon as the acceptancy of the order is confirmed in an "order confirmation" [“Auftragsbestätigung”] or if the APPLICATION is made available to the CUSTOMER.
5 Payment modalities
5.1. Fees will be paid in the currency stated in the applicable Order or, if no currency is specified, EUR. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (hereinafter referred to as the “TAXES”). CUSTOMER is responsible for paying all TAXES associated with its purchases hereunder. If PROVIDER has the legal obligation to pay or collect TAXES for which CUSTOMER is responsible under this section, PROVIDER will invoice CUSTOMER and CUSTOMER will pay that amount unless CUSTOMER provides PROVIDER with a valid tax exemption certificate authorized by the appropriate taxing authority in advance. For clarity, PROVIDER is solely responsible for TAXES assessable against it based on its income, property, and employees.
5.2. The content of the agreed service results from the package or offer selected by the CUSTOMER.
5.3. The prices stated at the time of the order shall apply.
5.4. Payments shall be due upon issuance of the invoice. If the claims are not paid within 14 days, the PROVIDER shall charge 9.2% per annum in statutory interest on arrears, above the current base rate of the European Central Bank, from the due date. In the event of default, the CUSTOMER undertakes to reimburse the PROVIDER for any reminder and collection costs incurred, insofar as they are necessary for appropriate legal prosecution. Costs of EUR 40.00 may be claimed per reminder.
5.5. In the event of a delay in payment of more than 60 days, the PROVIDER shall be entitled to withhold its services. If the CUSTOMER is more than 30 days in arrears with a payment, the PROVIDER may demand payment of the entire outstanding amount at once ("Terminverlust").
5.6. Payment shall be made in advance for one month or one year, depending on the CUSTOMER's choice. In the case of a subscription, the account specified by the CUSTOMER may be debited automatically.
5.7. The PROVIDER reserves the right to adjust the agreed license fee once a year for inflation. The Austrian consumer price index published on the website of Statistics Austria at the time of conclusion of the contract shall apply as the reference limit. A price increase shall be considered in particular if the costs for hosting the APPLICATION increase.
5.8. If a CUSTOMER switches from annual to monthly, the deposit already paid will be counted for the to be paid fee. After that (i.e. after the deposit has been counted up), the licence fee will be debited monthly.
6 Rights to use the APPLICATION, ownership, support and source code
6.1. The CUSTOMER may only use the APPLICATION offered by the PROVIDER for the intended purpose.
6.2. Upon full payment of all fees and expenses, the PROVIDER grants the CUSTOMER a non-exclusive licence (within the meaning of section 24 (1) first sentence UrhG [Austrian Copyright Act] "Werknutzungsbewilligung") to use the APPLICATION, which is limited in time to the duration of the subscription ("subscription licence") and in space and content to the purposes of the business relationship.
6.3. Sub-licensing or further licensing is only permitted with the express consent of the PROVIDER.
6.4. The right to decompile and reverse engineer the APPLICATION is excluded to the extent permitted by law. The CUSTOMER is not entitled to modify the APPLICATION without the consent of the PROVIDER.
6.5. Markings of the APPLICATION, in particular copyright notices, trademarks, serial numbers or similar may not be removed, changed or made unrecognisable.
6.6. The source code of the APPLICATION is expressly not owed. A user manual is not owed.
6.7. The CUSTOMER is entitled to use the APPLICATION only for the registered person (named user licence). It is therefore strictly prohibited to pass on the APPLICATION to persons who are not the CUSTOMER himself.
7 Back-Ups and storage of data
7.1. PROVIDER creates with best effort on a regular basis (once a day) a backup copy of the data generated and/or stored in the APPLICATION during its use.
7.2. It is pointed out that data collected with the APPLICATION will be deleted after the end of the contractual relationship. It is therefore the sole responsibility of the CUSTOMER to back up the data in good time.
8 Service Levels
8.1. PROVIDER shall endeavour to respond to requests via E-Mail within 72 hours on working days (Central European Time Zone [GMT+2]).
8.2. The PROVIDER shall endeavour to achieve an availability of the APPLICATION of 99.0% per year. Announced maintenance work and failures due to force majeure shall not be deducted from the calculation of availability.
8.3. Notices under this Terms of Service will be provided as follows: (a) all notices regarding the Service will be sent by email, although PROVIDER may instead choose to provide notice to CUSTOMER through the Service, (b) notices to the PROVIDER must be sent to hq@fugoya.com, and (c) all notices to CUSTOMER will be sent to the email(s) provided through the Service. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Service.
9 Duties to cooperate
9.1. The CUSTOMER is obliged to support the PROVIDER in the provision of the APPLICATION on an ongoing basis and to a reasonable extent and, if necessary, to enable (remote) access to the APPLICATION. In particular, the CUSTOMER shall provide the PROVIDER with the necessary information, data and descriptions and communicate his wishes and ideas for the provision of services in a timely and clear manner.
9.2. In the event of necessary (security) updates of the APPLICATION, the CUSTOMER is obliged to tolerate their installation by the PROVIDER or CUSTOMER has to update the APPLICATION by himself.
10 Upgrades and Updates
10.1. Updates, meaning the maintenance of the APPLICATION, are covered by the ongoing licence fees.
10.2. Upgrades, meaning the improvement of the APPLICATION, are also covered by the ongoing licence fees. However, PROVIDER reserves the right to claim sperate remuneration if he provides amendments (e.g. AI-features) of the APPLICATION that are to be qualified as more than mere improvement.
11 Warranty, exclusion of liability and force majeure
11.1. The performance description available at the time of conclusion of the contract shall be decisive for the quality of the APPLICATION provided by the PROVIDER.
11.2. The PROVIDER is entitled to remedy any defects by economically and technically reasonable workarounds.
11.3. The PROVIDER's liability for slight negligent conduct is excluded.
11.4. The PROVIDER's liability is limited to the amount of the annual fee paid or to be paid by the CUSTOMER. The liability for damages resulting from data loss is limited to the amount that would have been incurred in the event of proper data backup, but not more than the amount of the annual fee.
11.5. Claims for damages by the CUSTOMER shall become statute-barred one year after they arise.
11.6. The PROVIDER shall not be liable for loss of profit (“entgangener Gewinn”).
11.7. The PROVIDER shall endeavour to ensure trouble-free operation of the APPLICATION. This is naturally limited to services over which the PROVIDER has a possibility of influence. The PROVIDER is at liberty to restrict access to the PROVIDER'S APPLICATION in whole or in part, temporarily or permanently, due to maintenance work, capacity issues and other events beyond the PROVIDER's control.
11.8 The PROVIDER is not liable for content published by the CUSTOMER in the APPLICATION.
11.9. The provider accepts no liability for the content presented by the APPLICATION. It is the responsibility of the CUSTOMER to check the correctness and plausibility of the content presented by the APPLICATION.
11.10. In cases of force majeure, the PROVIDER shall not be liable and shall not be obliged to perform. Cases of force majeure include, but are not limited to: General power outages (“Black-Outs”); pandemics; war; military conflict; large-scale cyber-attacks; failures of open source components.
11.11. In case of free use of the APPLICATION, all warranty claims are excluded.
12 Data protection and protection of business and trade secrets
12.1. The disclosure of data and information to the respective business partners required is permissible insofar as this is necessary for the fulfilment of the contractual relationship, legitimate interests and statutory obligations (Art. 6 para 1 lit b, c and lit f GDPR). In addition, the PROVIDER shall be obliged to maintain secrecy about the circumstances, data or business and trade secrets of the other party of which it has become aware as a result of the present business relationship and, in particular, to maintain data secrecy. These obligations to maintain data and business secrecy shall also apply beyond the contractual relationship.
12.2. The source code of the APPLICATION is to be qualified as a trade secret in the sense of section 26b UWG (“Austrian Act against unfair trades”) and as such is subject to appropriate secrecy measures.
12.3. The PROVIDER points out that data of the CUSTOMER may be processed for advertising purposes on the basis of legitimate interests (Art 6 para 1 lit f GDPR). The CUSTOMER may object to this form of data processing at any time (Art 21 (2) GDPR).
12.4. As personal data is processed by the PROVIDER on behalf of the CUSTOMER in the course of the provision of services, the parties shall conclude a data processing agreement pursuant to Article 28 of the GDPR as set out in Annex I.
13 Audit clause
13.1. The PROVIDER has the possibility to verify compliance with the use of the APPLICATION in accordance with the licence and the law. Irrespective of this, the PROVIDER may demand proof from the CUSTOMER that the APPLICATION is being used in compliance with the licence and the law. Enquiries in connection with the use of the APPLICATION in accordance with the licence and the law must be answered truthfully.
13.2. The PROVIDER is entitled to check the CUSTOMER's compliance with the licence and legally compliant use of the APPLICATION at any time after at least 14 days' notice on site or remotely (licence audit). The PROVIDER may use the services of an auditor or lawyer who is bound to secrecy. In doing so, the PROVIDER shall respect business and trade secrets as well as the interests of the CUSTOMER under data protection law to the best possible extent. The audit shall be carried out during normal business hours and without disrupting the CUSTOMER's operations. The costs incurred in this connection shall be borne by each party. The CUSTOMER is obliged to provide the PROVIDER with the information required for these purposes and to cooperate with the PROVIDER in the course of the licence audit. Otherwise the PROVIDER shall be entitled to withhold its services. This shall be without prejudice to any further legal claims.
14 Reference clause
14.1. The PROVIDER is entitled to refer to the fact of the business relationship with the CUSTOMER by means of a reference on its website or other marketing/business documents. He is entitled to use the logo of the CUSTOMER in this context. This right also exists beyond this contractual relationship.
14.2. CUSTOMER may from time to time provide suggestions, comments, or other feedback with respect to the Service (“Feedback”). For the avoidance of doubt, Feedback will only refer to suggestions, comments or other feedback provided to the PROVIDER specifically regarding the Service and will not include User Information or User Submissions. PROVIDER may want to incorporate Feedback into its Service and this clause provides PROVIDER with the necessary rights to do so.
15 Duration of relationship
15.1. The contractual relationship is concluded for an indefinite period.
15.2. Annual running time: The contractual relationship can be terminated with a notice period of seven days to the last day of the respective contract year.
15.3. Monthly running time: The contractual relationship can be terminated with a notice period of seven days to the last day of each month.
15.4. The right to extraordinary termination remains unaffected for both parties.
15.5. In the event of free use of the APPLICATION, its use may be discontinued at any time by the PROVIDER.
15.6. The PROVIDER points out that all data will be irretrievably deleted 30 days after deletion of the account. It is the CUSTOMER's responsibility to back up his data in good time. The PROVIDER shall have no obligation in this respect.
16 Revenue and applicable law
16.1. This contractual relationship shall be governed by and construed in accordance with Austrian law. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.
16.2. The exclusive place of jurisdiction is the competent court in Vienna, Austria (Vienna Commercial Court “Handelsgericht”).
17 Changes of this Terms of Service
17.1. The PROVIDER is entitled to amend this Terms of Service at any time. The PROVIDER shall inform the CUSTOMER of such amendments by sending the amended licence conditions to the e-mail address last notified to the CUSTOMER. The CUSTOMER has the right to object to this change. If no objection is made by the CUSTOMER within 30 days of this amendment being sent, implied consent to the amendment of the licence conditions shall be assumed.
18 Further issues
18.1. Invalid provisions of individual parts of this contract shall not affect the validity of the remaining provisions. They shall be replaced by appropriate substitute provisions which, in the light of the purpose of the contract, come as close as possible to what the contracting parties would have wanted had they known of the ineffectiveness. The same shall apply in the event of gaps contrary to the contract.
18.2. This agreement supersedes any previously concluded oral or written agreements.