Partner (Reseller) Terms of Use

for the cloud shop and website system of Smarda GmbH

As of: July 17, 2026

1 Scope

1.1

This Terms of Use Agreement of Smarda GmbH, FN 513822 x, Businesspark 6 / Top 49, 8200 Gleisdorf (hereinafter “SMARDA”), in the version applicable at the time of contract conclusion/registration, applies to the use of the cloud shop and website system (hereinafter “CLOUD”) by business users who create, manage or resell websites and shops for their own clients (hereinafter “USER”). By concluding the contract/registering, the User agrees to these Terms of Use. These Terms of Use apply to all future transactions with Users, even without a further express agreement. Amendments and additions to these Terms of Use, verbal agreements, and any (General) Terms and Conditions submitted by the User that deviate from the content of these Terms of Use shall only become effective upon written confirmation by SMARDA.

1.2

Users who create and operate a shop or website exclusively for their own business operations are not subject to this Agreement, but to the separate Terms of Use for Operators, available at smarda.com/betreiber-nutzungsvereinbarung.

1.3

SMARDA may amend these Terms of Use with effect for the future, provided the amendment is reasonable for the User or is required due to changes in the law, case law, regulatory requirements or technological developments. SMARDA will announce amendments at least six weeks before they take effect by email to the address on file; the notice will include the amended version and information about the right to object and the consequences of doing so. If the User does not object within one month of receiving the notice, the amendment will be deemed accepted. If the User objects in due time, the Agreement will continue under the previous terms; in this case, SMARDA is entitled to terminate the Agreement ordinarily in accordance with Section 7.1. Amendments to material contractual terms (in particular the subject matter of the services and the fee structure) always require the User’s express consent; Section 9.4 applies to fee adjustments.

2 Contract Language

The contract language is German. All other information and communications are provided in German. Documents in other languages are for information purposes only.

3 Applicable Law and Jurisdiction

These Terms of Use and the contracts to be concluded incorporating these Terms of Use are governed by Austrian substantive law, excluding its conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods. The exclusive jurisdiction for all disputes arising out of or in connection with this Agreement shall be the court with subject-matter jurisdiction at SMARDA’s registered office.

4 Cloud Shop and Website System (CLOUD)

4.1 Reseller Structure

SMARDA develops and operates the CLOUD, through which Users can create largely customized websites, with or without web shop functionality (hereinafter “WEBSITE”), integrated into the CLOUD, and resell them to or manage them for their own clients (reseller system). These clients may use the WEBSITES created by the User to present their own services and products and to sell goods and/or services to their own customers (hereinafter “END CUSTOMER”). This Terms of Use Agreement establishes a contract between SMARDA and the User for the use of the CLOUD. Contracts between the User and the User’s clients are not part of these Terms of Use; the User is solely responsible for the agreements entered into with the User’s clients.

4.2

SMARDA provides the User with tools in the CLOUD that enable the User to create their own comprehensive and largely customized WEBSITES. The respective functions, their scope and the costs are available for registered Users to view in the admin system at smarda.app and form part of this Agreement; the version displayed at the time of the relevant order or agreement shall apply. SMARDA reserves the right to further develop, modify or discontinue individual functions, provided this does not affect the material contractual terms. The User may choose from the business models offered and create multiple WEBSITES.

4.3

SMARDA is not itself the operator of the WEBSITES. SMARDA is responsible solely for the technical provision of the cloud shop and website system functionality. If contracts (e.g. for the sale of goods and/or services) are concluded on a WEBSITE, they are concluded exclusively between the respective WEBSITE operator and its End Customers, including all rights and obligations arising from them. The User may not circumvent technical safeguards.

4.4 Use

When using the CLOUD, the User must comply with the applicable laws and respect the rights of third parties. In particular, the User is prohibited from infringing third-party intellectual property rights, such as trademark, copyright and name rights, when using the CLOUD; distributing insulting, defamatory or otherwise criminal content; unreasonably harassing third parties in breach of data protection or competition law requirements, for example by sending unsolicited advertising (spam); using mechanisms, software and/or scripts beyond the functions and interfaces provided, particularly where this blocks, modifies, copies and/or overwrites CLOUD services or functions; or attempting to interfere with the CLOUD or the content accessible through it by altering data, computer sabotage, data forgery, computer fraud, data espionage or interception, or other criminal acts. The User is solely responsible for complying with the import and export regulations applicable to deliveries or services; for cross-border deliveries or services, the User shall bear any applicable customs duties, fees, taxes and other charges and independently handle any statutory or regulatory procedures.

4.5 Free Trial Period

SMARDA offers the option to create WEBSITES without incurring immediate costs. Layouts and functions can be created and tested during this period. Actual sales cannot be made during the free trial period; access to the WEBSITE by End Customers is also not permitted during this period. The duration of the free trial period and the ongoing costs of the selected service scope are shown in the admin system at smarda.app and form part of the Agreement. SMARDA will notify the User of the expiry date and the costs that will apply thereafter no later than one month before the free trial period ends.

4.6 Beta Versions

SMARDA may offer the User the opportunity to use preview/beta functions that are still under development for testing purposes. Additional terms may apply, which SMARDA will provide to the User before use. The User may disclose information about the use of preview/beta functions publicly only with SMARDA’s prior written consent. SMARDA does not guarantee the functionality of preview/beta functions and may discontinue them at any time. The liability provisions in Section 16 apply to preview/beta functions, with the understanding that their use is at the User’s own risk.

4.7 Third-Party Applications

The CLOUD may also include interaction with third-party applications. For this purpose, SMARDA provides the User with interfaces, where separately agreed. Unless otherwise agreed, the User is responsible for establishing the prerequisites required to interact with third-party applications. SMARDA is not a party to contracts between the User or the User’s clients and third parties; Section 19.2 also applies.

5 Contract Conclusion, Account and Data Protection

5.1 Contract Conclusion

The CLOUD may only be used to its full extent after the User has concluded a contract by registering. During registration, the User confirms that they use the CLOUD exclusively in the course of their business activities; use for private purposes is prohibited. Once registration is successful and the contract is confirmed by SMARDA, the contract is concluded and the User may log in using their email address and password. SMARDA reserves the right to accept or reject a registration. Registration using incorrect information is prohibited and entitles SMARDA to terminate the contract for cause. Any changes to the information on file must be reported to SMARDA without delay.

5.2 Login Credentials and User Accounts

The User shall take all necessary measures to prevent their login credentials from being accessed by unauthorized third parties and shall notify SMARDA without delay of any unauthorized access to the credentials or any misuse of the account. SMARDA is entitled to block the User area until the risk of misuse has been eliminated. Depending on the selected business model, the User may create additional user accounts and grant their clients and employees access to the User area. The User is responsible for the acts and omissions of anyone to whom the User grants access as if they were the User’s own acts and omissions.

5.3 Responsibility for Content

The User or the User’s client is solely responsible for all activities and content (photos, images, videos, graphics, texts, audio files, code, information or data) uploaded, entered, generated, stored, displayed, distributed or transmitted on or in connection with the WEBSITE. The User shall ensure that the identity of the respective WEBSITE operator is clearly displayed on the WEBSITE (legal notice requirement) and that a privacy policy is made available to the data subjects concerned.

5.4 Data Processing Agreement

At the same time as concluding these Terms of Use, the User enters into a data processing agreement with SMARDA pursuant to Art. 28 GDPR in the version applicable at the time of conclusion, available at smarda.com/avv. SMARDA processes personal data arising in connection with the use of the CLOUD exclusively in accordance with this data processing agreement. The current list of sub-processors is available at smarda.com/subverarbeiter.

5.5 User’s Data Protection Obligations

The User warrants that they will fulfill their own data protection obligations toward their clients and the data subjects, in particular by entering into the necessary agreements under Art. 28 GDPR with their clients insofar as they process personal data on their behalf. The User shall indemnify SMARDA against third-party claims arising from the User’s breach of these obligations.

6 Sales via the WEBSITE

Goods and/or services offered on the WEBSITES are sold exclusively by the respective WEBSITE operator. Neither SMARDA nor the User is itself the seller; they provide the technical processing of sales between the WEBSITE operator and its End Customers. The User shall agree with their clients on the terms governing their cooperation.

7 Term and Termination

7.1

This Agreement is concluded for an indefinite term. Either party may terminate it in writing (e.g. by email) with one month’s notice effective at the end of the current usage month. The right to terminate for cause remains unaffected.

7.2

The User enters into separate agreements for individual WEBSITES in the admin system, which may contain their own terms regarding duration, trial periods, fees and notice periods; the terms displayed at the time of conclusion shall apply and will be permanently documented for the User to view in the admin system. Termination of this framework agreement will take effect no earlier than when the last ongoing WEBSITE agreement has ended; conversely, termination of individual WEBSITE agreements does not affect this framework agreement.

7.3

Amounts owed by the User to SMARDA up to the effective date of termination or cancellation become due upon the end of the contract. In the event of ordinary termination by the User, there is no entitlement to a pro rata refund of prepaid fees.

8 Termination, Data Export and Deletion

8.1

When termination takes effect, the right to use the CLOUD ends and SMARDA may block the User’s access to the CLOUD; access to the export functions under Section 8.2 remains unaffected.

8.2

During the term of the contract and for a period of 30 calendar days after the contract ends, the User may export their data and the data of the WEBSITES they manage using the export functions provided, in a structured, commonly used and machine-readable format. The provisions of the data processing agreement apply additionally and take precedence with respect to personal data (choice between return and deletion, deletion periods, deletion confirmation). SMARDA may provide individual migration and support services beyond the export functions for a reasonable fee based on the work involved.

8.3

After the period specified in Section 8.2 has expired, SMARDA will delete all data of the User and the WEBSITES they manage in accordance with the periods and provisions of the data processing agreement, unless statutory retention obligations prevent this. The User is required to inform their clients in good time about the impending termination and the option to export data.

9 Fees, Invoicing and Late Payment

9.1 License Fees

The User shall pay SMARDA the agreed license fee for each WEBSITE’s use of the CLOUD, as well as the agreed fees for any additional products or services (extensions) used. All fees are available for registered Users to view at any time in the admin system at smarda.app and form part of this Agreement; the terms displayed at the time of each order shall apply. If revenue-based commissions or settlement models have been agreed for individual business models, their amounts and billing methods are set out in the relevant agreement in the admin system.

9.2 Payment and Invoicing

During registration, the User selects one of the payment methods offered. The authorized payment method will be used to pay all fees until the contract has ended and all outstanding amounts have been paid; the payment method may be changed by agreement with SMARDA. If no payment method has been selected, payment by invoice shall be deemed agreed. License fees are invoiced in advance at the beginning of each usage period (month or year). All prices are stated net in euros, plus VAT and any applicable fees and charges. Invoices are sent by email, made available in the User area and payable without deduction within 14 days of receipt.

9.3 Late Payment, Suspension and Deletion

If collection using the authorized payment method fails, SMARDA will retry collection twice, at intervals of at least three days, and notify the User by email. If the final attempt also fails, SMARDA will send the User a reminder by email, setting a grace period of at least seven days and warning of the impending suspension. If the grace period expires without payment, SMARDA is entitled to suspend the User area and the associated WEBSITES. Access will be restored once the outstanding amounts have been paid. If the outstanding amounts remain unpaid 30 days after suspension, SMARDA is entitled to terminate the Agreement for cause after giving prior notice by email and allowing a further 14-day period; Section 8 will then apply to data export and deletion. SMARDA reserves the right to assert any further consequences of late payment.

9.4 Fee Adjustments

SMARDA may adjust fees with effect for the future. Fee adjustments will be announced to the User by email at least two months before they take effect and will apply only from the next usage period of the respective WEBSITE. If SMARDA increases the fee for an ongoing WEBSITE by more than the adjustment based on the Consumer Price Index, the User may terminate the affected WEBSITE agreement for cause when the increase takes effect.

9.5 Set-Off

The User may set off claims only if their counterclaims have been established by a final court judgment, acknowledged by SMARDA or are undisputed. The User may exercise a right of retention only in respect of counterclaims arising from the same contractual relationship.

9.6 Taxes and Charges

The User and their clients are solely responsible for remitting all taxes, fees and charges payable by them. Where SMARDA charges taxes, it does so based on the tax rates applicable to the billing address provided by the User. Tax exemptions will be taken into account upon submission of sufficient proof.

9.7 Misuse

SMARDA may suspend the User or terminate the Agreement for cause if there are specific indications that the User or the User’s client is committing or attempting to commit fraudulent acts in connection with the CLOUD.

10 User Rights and Obligations

10.1

The User is granted a non-exclusive, geographically unrestricted right, limited to the term of the contract and to the use of the services provided in the CLOUD, to use the CLOUD for its intended purpose and in accordance with the contract for business purposes — including reselling WEBSITES to the User’s own clients under Section 4.1. No further rights are granted.

10.2

The User shall not replicate, decompile or analyze the CLOUD for the purpose of developing, or having developed, a product that competes with the CLOUD. The User’s general activities as an agency or service provider, including working with other shop and website systems, remain unaffected.

10.3

The User must comply with applicable law and respect the rights of third parties. The User or the User’s clients are responsible for ensuring that content uploaded by them complies with legal requirements. If the User fails to fulfill their obligations despite being requested to do so and given a reasonable grace period, SMARDA is entitled to terminate the Agreement for cause. The same applies if a client of the User commits a corresponding violation and the User fails to remedy it within a reasonable period despite being requested to do so.

10.4

The CLOUD contains third-party open-source software (“OSS”). The User receives only the rights to use the OSS granted under the license terms applicable to the respective OSS. Upon request, SMARDA will inform the User which OSS is included and under which license terms.

10.5

The User shall not reproduce, duplicate, copy, sell or exploit any part of the CLOUD beyond the scope provided for in the contract. Reselling WEBSITES to the User’s own clients under this Agreement remains unaffected.

10.6

Without express authorization, the User shall not purchase search engine or pay-per-click keywords (such as Google Ads) or domain names that contain the SMARDA trademark and/or variations or misspellings thereof.

10.7 Fair Use

Use of the CLOUD is designed for reasonable use of system resources (storage, access, computing power) in line with the selected service scope (fair use principle). In the event of a significant excess, SMARDA will notify the User and may require an adjustment to the service scope or a separate agreement; SMARDA reserves the right to take measures to protect system integrity.

11 Non-Circumvention

If SMARDA refers a contact to the User (e.g. an inquiry from a prospective customer through the partner program), the User shall provide services that are the subject of the referral to that contact only using the CLOUD during the term of this Agreement and for twelve months thereafter, and shall not circumvent the referral by providing the service outside the CLOUD or through third parties. The same applies, as appropriate, to attempts to transfer contacts referred by SMARDA to third-party systems in order to avoid fees or commissions.

12 Information Obligations, Communication and Confidentiality

12.1

The User shall provide SMARDA truthfully with all information necessary to perform the contract and keep their details (name, address, email address, payment details) up to date. If the User provides false information, SMARDA is entitled to terminate the Agreement for cause if the User fails to correct it after being requested to do so.

12.2

Communication between SMARDA and the User takes place primarily via the email address provided by the User. If the User changes their email address, they must notify SMARDA without delay.

12.3

Each party shall treat the other party’s confidential information as confidential — for SMARDA, in particular, information about the CLOUD, terms and conditions, and trade secrets; for the User, in particular, information about the User’s clients, End Customers and business data — and shall not disclose it to third parties unless disclosure is necessary to perform the contract or required by law. The obligations under the data processing agreement remain unaffected.

13 Reservation of Rights

13.1

SMARDA reserves the right to change or discontinue its offering for new customers at any time and to further develop, modify or discontinue individual non-essential functions of the CLOUD. This does not affect material contractual terms for existing customers; Section 1.3 applies in this respect.

13.2

SMARDA is entitled to remove content and, if the User fails to remedy the issue after being requested to do so, suspend or terminate the User if goods/services offered via a WEBSITE or uploaded content violate these Terms of Use or applicable law. In the case of serious violations (in particular, criminal content), removal or suspension may take place without prior notice. SMARDA does not review content of Users or their clients in advance.

13.3

SMARDA is entitled to make the same CLOUD offerings available to the User’s competitors or their clients. No User is granted exclusive use of the CLOUD.

13.4

In the event of disputes over entitlement to a WEBSITE or User area, SMARDA may request appropriate documents (e.g. business license, official photo ID) to establish entitlement and may temporarily deactivate the User area or transfer it to the entitled party until the matter is resolved.

13.5

SMARDA receives a non-exclusive, unrestricted, perpetual and royalty-free right to use the User’s feedback and suggestions for improvement.

13.6

SMARDA is entitled to transfer its rights and obligations under this Agreement to an affiliated company. SMARDA will notify the User in text form in good time of any transfer to other third parties; if the User objects, the transfer will not take effect with respect to the User. The User may assign rights under this Agreement only with SMARDA’s consent; SMARDA will withhold consent only for good cause. SMARDA may use third parties (agents and sub-processors under the data processing agreement) to provide its services.

14 Intellectual Property

14.1

SMARDA reserves all ownership and copyright rights in its own images, drawings, calculations and other documents. Documents designated as “trade secret” or “confidential” may be disclosed to third parties only with SMARDA’s prior consent in text form.

14.2

The User or the User’s respective client retains all rights to the data and content they upload to the CLOUD. SMARDA claims no intellectual property rights in them. SMARDA is granted the non-exclusive right to use this content as required to operate the CLOUD (in particular, to store, technically reproduce, display and deliver published content).

14.3

SMARDA will investigate reports of legal violations. SMARDA provides a form at smarda.com/meldung-urheberrecht for reporting potential copyright infringements by a WEBSITE.

15 Advertising and Reference

The User grants SMARDA the non-exclusive right to use the User’s name and logo as a reference (e.g. on SMARDA’s website and in presentations). The User’s clients or their trademarks will be mentioned only with their prior consent, which the User shall obtain. The User may object to being named as a reference at any time, with effect for the future, in text form.

16 Warranty and Liability

16.1

SMARDA is not liable for defects in goods/services sold via WEBSITES or for the performance of contracts between WEBSITE operators and their End Customers; any related claims must be directed to the respective WEBSITE operator. SMARDA is solely the developer and operator of the CLOUD and accepts no responsibility for content of Users or their clients. SMARDA merely stores and automatically processes third-party content; SMARDA does not select or review its content.

16.2

SMARDA warrants that the CLOUD will substantially provide the functions described in the admin system. The User shall report defects without delay in a form that allows them to be understood; SMARDA will remedy reported, reproducible defects within a reasonable period. Further warranty claims, in particular rescission or price reduction for minor defects, are excluded. The provisions on availability (Section 17) remain unaffected.

16.3

SMARDA is liable without limitation for intent and gross negligence, as well as for damages arising from injury to life, body or health. Liability for slight negligence is excluded; this does not apply to the breach of material contractual obligations, the fulfillment of which is essential to the proper performance of the contract. In the event of a slightly negligent breach of material contractual obligations, liability is limited in amount to the foreseeable damage typical for the contract, up to a maximum of the total fees paid by the User to SMARDA in the twelve months preceding the damaging event. Liability for loss of profit and indirect damages is excluded to the extent permitted by law. Claims under mandatory statutory provisions (in particular the Product Liability Act) and claims by data subjects under Art. 82 GDPR remain unaffected.

16.4

The User’s claims for damages shall become time-barred within one year of becoming aware of the damage and the person responsible, unless there is intent or mandatory law provides otherwise.

16.5

The User shall indemnify SMARDA and its officers, employees and agents against third-party claims (including reasonable legal defense costs) arising from a culpable breach of these Terms of Use or applicable law by the User or the User’s clients.

17 Availability, Support and Maintenance

17.1 Availability

SMARDA provides the CLOUD with an average monthly availability of 99% at the handover point of the cloud infrastructure used by SMARDA. The following are not considered downtime: announced maintenance windows, disruptions outside SMARDA’s control (in particular, disruptions to the internet or the infrastructure of the User or their End Customers), force majeure events and suspensions under this Agreement. Where possible, SMARDA will announce scheduled maintenance in good time by email or in the admin system and carry it out during periods of low usage.

17.2 Support

SMARDA provides the User with support for questions and incident reports by email and ticketing system during business hours (Monday to Thursday, 8:00 a.m. to 5:00 p.m.; Friday, 8:00 a.m. to 12:00 p.m.). SMARDA will handle incident reports at its reasonable discretion according to their severity; fixed response or recovery times are not guaranteed, and incidents preventing business operations will be given priority.

17.3 Data Backups

SMARDA performs regular automated backups of data stored in the CLOUD (rolling retention; details in accordance with the data processing agreement). The backups are intended to restore system operations in the event of a disruption; they do not constitute an archive for the User. The User remains responsible for archiving their own content using the export functions.

17.4 Updates

The CLOUD is provided as Software as a Service and is continuously maintained and developed by SMARDA. SMARDA deploys updates centrally; there is no entitlement to specific new functions or updates on specific dates. SMARDA will provide updates that remedy serious errors with the required priority.

17.5 Force Majeure

Events of force majeure that substantially hinder or make it impossible for SMARDA to provide its services (including natural disasters, war, official orders, widespread outages of energy or telecommunications networks, and outages of subcontractors for which SMARDA is not responsible) release SMARDA from the affected service obligations for the duration of the event. Fees will be reduced proportionally if the service is completely interrupted for more than 14 days.

18 Transfer of WEBSITES

18.1

The User may transfer a WEBSITE to their client or another partner using the relevant CLOUD functions (transfer of the operator or management role together with the billing relationship). The transfer requires acceptance by the transferee, who must enter into or confirm the Terms of Use applicable to them and the data processing agreement with SMARDA.

18.2

Once the transfer takes effect, the transferee assumes the contractual relationship for the relevant WEBSITE; SMARDA will begin billing the transferee from the next usage period, and until then the transferring User remains liable for payment. Periods already invoiced remain unaffected. If agreed, the transferring User may remain on the WEBSITE as a user with access rights, with the transferee’s consent.

18.3

The transferring User shall ensure that the transfer is authorized in their relationship with their client and inform the client of the data protection implications (in particular, the change of contracting party to the data processing agreement).

19 Additional Offerings

19.1 Domain Service

SMARDA offers to register domains for Users or their clients. SMARDA may arrange registration directly with the registry or through a registrar (third-party provider). The User shall pay the agreed annual flat fee for each registered domain; the first billing period begins upon registration. For the term of the Terms of Use, SMARDA is the point of contact for the registry for domains registered on behalf of the User. SMARDA checks the availability of the requested domain and, if available, initiates registration in the name of the User or the User’s client; SMARDA does not guarantee successful registration, as allocation is at the discretion of the registry. Domain registrations renew automatically for successive one-year periods unless canceled through the admin system in good time before expiry; SMARDA will provide notice of this in the admin system. SMARDA does not check whether registration or use of a domain infringes third-party rights; the User shall indemnify SMARDA against related third-party claims, including reasonable legal defense costs. Upon termination of the domain service, SMARDA will release the domain and provide all declarations required for its transfer. The right to terminate for cause remains unaffected; good cause for SMARDA includes, in particular, a requirement to transfer or cancel the domain pursuant to a final decision or under the Uniform Domain Name Dispute Resolution Policy (UDRP), or the User’s failure to pay despite a reminder and grace period.

19.2 Third-Party Offers and Services

SMARDA may recommend third-party offers (products, services, integrations) to the User in connection with the CLOUD, enable access to them or make them available for activation. If the User uses such offers, the contract is concluded exclusively between the User (or the User’s client) and the third-party provider. SMARDA provides no warranty for third-party offers and has no influence over their availability or terms; SMARDA may discontinue access to third-party integrations if there is an objective reason to do so (e.g. discontinuation or modification of the third-party interface, security risks). By activating a third-party offer, the User authorizes SMARDA to grant the third-party provider the access to the relevant data required for this purpose; data exchange with the third-party provider takes place under the responsibility of the User or the User’s client. SMARDA is not responsible for disclosures, changes or deletions of data resulting from access by a third-party provider activated by the User, and is not required to intervene in disputes between the User and the third-party provider. SMARDA is liable for damages arising from the User’s contractual relationship with third-party providers in accordance with Section 16.3; the User shall indemnify SMARDA against claims arising from the User’s cooperation with third-party providers.

20 Final Provisions

20.1

There are no verbal side agreements to this Agreement. Amendments and additions to this Agreement must be made in text form; this also applies to any waiver of this form requirement. Section 1.3 remains unaffected.

20.2

If any provision of these Terms of Use is or becomes invalid, the validity of the remaining provisions shall remain unaffected. The invalid provision shall be replaced by a valid provision that comes closest to the economic purpose of the invalid provision.