Terms of Use for Website / Shop Operators

for the Smarda GmbH cloud shop and website system

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 conclusion of the contract/registration, applies to the use of the cloud shop and website system (hereinafter “CLOUD”) by business users who create and operate a shop or website for their own business operations (hereinafter “OPERATOR”). By concluding the contract/registering, the Operator agrees to these Terms of Use. These Terms of Use apply to all future transactions with the Operator, even without a further express agreement. Any deviating terms and conditions of the Operator shall only take effect if confirmed in writing by SMARDA.

1.2

Agencies and service providers that create, manage or resell websites or shops for their own clients are not subject to this agreement, but to the Terms of Use for Partners (Resellers), available at smarda.com/reseller-nutzungsvereinbarung.

1.3

SMARDA may amend these Terms of Use with effect for the future, provided that the amendment is reasonable for the Operator or is required due to changes in the law, case law, official requirements or technological developments. SMARDA will announce amendments by email to the address on file at least six weeks before they take effect; the notice will include the amended version and information about the right to object and the consequences of doing so. If the Operator does not object within one month of receiving the notice, the amendment will be deemed accepted. If the Operator objects within the deadline, the agreement will continue under the previous terms; in this case, SMARDA is entitled to terminate the agreement in the ordinary manner in accordance with Section 6.1. Amendments to material contractual terms always require the Operator’s express consent; Section 8.4 applies to fee adjustments.

2 Contract Language, Applicable Law and Jurisdiction

The contract language is German; documents in other languages are for information purposes only. These Terms of Use and the contracts to be concluded subject to them are governed by Austrian substantive law, excluding conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods. The exclusive jurisdiction for all disputes arising from or in connection with this agreement shall be the court with subject-matter jurisdiction at SMARDA’s registered office.

3 Scope of Services

3.1

SMARDA develops and operates the CLOUD, through which the Operator can create one or more largely customizable websites integrated into the CLOUD, with or without online shop functions (hereinafter “WEBSITE”), and use them for its own business operations—in particular to present its own services and products and to sell goods and/or services to its own customers (hereinafter “END CUSTOMER”). The respective functions, their scope of services and costs are available for registered Operators 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 shall apply. SMARDA reserves the right to further develop, modify or discontinue individual functions, provided this does not affect the material contractual terms.

3.2

SMARDA is not itself the operator of the WEBSITE and is not the seller of the goods and/or services offered through it. Contracts concluded through the WEBSITE are concluded exclusively between the Operator and its End Customers, including all rights and obligations arising from them. The Operator shall ensure that its identity is clearly displayed on the WEBSITE (legal notice requirement) and that a privacy policy is made available to the persons concerned.

3.3 Free Trial Period

SMARDA offers the option to create a WEBSITE without incurring immediate costs. Actual sales and access for End Customers are not permitted during the free trial period. The duration of the trial period and the ongoing costs for the selected scope of services are shown in the admin system and form part of the agreement. No later than one month before the end of the free trial period, SMARDA will notify the Operator of the expiry date and the costs that will apply thereafter.

3.4 Beta Versions

SMARDA may offer the Operator the opportunity to use preview/beta functions for testing purposes. Additional terms may apply. SMARDA does not guarantee the functionality of preview/beta functions and may discontinue them at any time; their use is at the Operator’s own risk.

3.5 Third-Party Applications

The CLOUD may also include interaction with third-party applications (e.g. payment, shipping, newsletter or inventory management services). If the Operator uses such services, the contract is concluded exclusively between the Operator and the respective third-party provider; Section 15.2 also applies.

4 Conclusion of Contract, Account and Data Protection

4.1 Conclusion of Contract

The CLOUD may only be used to its full extent after a contract has been concluded through registration. During registration, the Operator confirms that it uses the CLOUD exclusively for the conduct of its business; use for private purposes is prohibited. The contract is concluded upon successful registration and confirmation of the contract by SMARDA. SMARDA reserves the right to accept or reject a registration. Registration with 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.

4.2 Access Credentials and User Accounts

The Operator shall take all necessary measures to prevent its access credentials from being made available to unauthorized third parties and shall notify SMARDA without delay of 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 scope of services, the Operator may grant other persons (e.g. employees or a managing agency) access to its user area; the Operator is responsible for their acts and omissions as if they were its own.

4.3 Responsibility for Content

The Operator 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 its WEBSITE, and shall comply with the applicable legal provisions. Section 4.4 of the Terms of Use for Partners applies accordingly with regard to prohibited uses (in particular, no infringement of rights, no spam, no interference with the CLOUD, and compliance with import/export regulations).

4.4 Data Processing Agreement

At the same time as concluding these Terms of Use, the Operator 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 (in particular, data of the Operator’s End Customers) exclusively in accordance with this data processing agreement. The current list of sub-processors is available at smarda.com/subverarbeiter.

5 Transfer and Handover of WEBSITES

5.1

If the Operator’s WEBSITE was created by an agency (a Partner within the meaning of the Terms of Use for Partners) and the agency hands the WEBSITE over to the Operator, the Operator assumes the contractual relationship for the relevant WEBSITE upon accepting the handover. Acceptance takes place using the designated CLOUD function and requires the conclusion of these Terms of Use and the data processing agreement. SMARDA will begin billing the Operator from the next usage period; until then, the transferring agency remains responsible for payment. If agreed, the transferring agency may remain a user with access rights to the WEBSITE, subject to the Operator’s consent.

5.2

The Operator may hand over its WEBSITE to an agency using the designated CLOUD functions; Section 5.1 applies accordingly with the roles reversed.

6 Term and Termination

6.1

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

6.2

Separate terms (terms, trial periods, fees, notice periods) may be agreed for individual WEBSITES in the admin system; the terms displayed there at the time of conclusion shall apply and will be permanently documented for the Operator to view in the admin system. Termination of this framework agreement will take effect no earlier than the end of the last ongoing WEBSITE agreement.

6.3

Any amounts owed by the Operator to SMARDA up to the effective date of termination or dissolution shall become due upon termination of the contract. In the event of ordinary termination by the Operator, there is no entitlement to a pro rata refund of prepaid fees.

7 Termination, Data Export and Deletion

7.1

When termination takes effect, the right to use the CLOUD ends and SMARDA may block the Operator’s access to the CLOUD; access to the export functions under Section 7.2 remains unaffected.

7.2

The Operator may export its data during the term of the contract and for a period of 30 calendar days after the contract ends 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 regard to personal data (choice between return and deletion, deletion periods, confirmation of deletion). SMARDA may provide individual migration and support services beyond the export functions for reasonable compensation based on the work involved.

7.3

After the period specified in Section 7.2 has expired, SMARDA will delete all of the Operator’s data in accordance with the periods and provisions of the data processing agreement, unless statutory retention obligations prevent this.

8 Fees, Billing and Late Payment

8.1 Fees

For use of the CLOUD, the Operator shall pay SMARDA the agreed license fee for each WEBSITE, as well as the agreed fees for any additional products or services used (extensions). All fees are available 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 the relevant order shall apply.

8.2 Payment and Invoicing

The Operator shall select one of the payment methods offered; if none is 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 net in euros, plus VAT and any applicable fees and charges. Invoices are sent by email, made available in the user area and are payable without deduction within 14 days of receipt. The Operator is solely responsible for remitting all taxes, fees and charges applicable to it.

8.3 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 Operator by email. If the final attempt also fails, SMARDA will send the Operator 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 block the user area and the associated WEBSITE. 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 a further 14-day deadline; Section 7 shall then apply to data export and deletion.

8.4 Fee Adjustments

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

8.5 Set-Off

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

9 Rights and Obligations of the Operator

9.1

The Operator is granted a non-exclusive right, limited to the term of the contract, unrestricted geographically and limited in scope to the use of the services provided in the CLOUD, to use the CLOUD for its own business purposes in accordance with its intended purpose and the contract. The Operator is not permitted to resell WEBSITES or CLOUD services to third parties; the Terms of Use for Partners are available for this purpose.

9.2

The Operator shall not reproduce, decompile or analyze the CLOUD for the purpose of developing or commissioning the development of a product that competes with the CLOUD. Without express authorization, the Operator shall not acquire any search engine or pay-per-click keywords or domain names that contain the SMARDA brand and/or variations or misspellings thereof.

9.3

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

9.4 Fair Use

Use of the CLOUD is designed for reasonable use of system resources in line with the selected scope of services (fair use principle). In the event of a significant excess, SMARDA will notify the Operator and may require an adjustment to the scope of services or a separate agreement; measures to preserve system integrity are reserved.

10 Information Obligations, Communication and Confidentiality

The Operator shall keep its information on file up to date; communication will primarily take place via the email address on file. Each party shall treat the other party’s confidential information as confidential and shall not disclose it to third parties, unless disclosure is necessary for performance of the contract or required by law. The obligations under the data processing agreement remain unaffected.

11 Reservation of Rights

11.1

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 CLOUD functions. This does not affect material contractual terms for existing customers; Section 1.3 applies in this respect.

11.2

SMARDA is entitled to remove content and, after an unsuccessful request to remedy the issue, suspend or terminate the Operator if goods/services offered through the WEBSITE or uploaded content violate these Terms of Use or applicable law. In the event of serious violations (in particular, criminal content), removal or suspension may take place without prior notice. SMARDA does not review the Operator’s content in advance.

11.3

SMARDA is entitled to make the same CLOUD offerings available to the Operator’s competitors. In the event of disputes over entitlement to a WEBSITE, SMARDA may request appropriate documentation and temporarily deactivate the user area until the matter is resolved or transfer it to the rightful party. SMARDA receives a non-exclusive, unrestricted, royalty-free right to use the Operator’s feedback and suggestions for improvement. SMARDA is entitled to transfer its rights and obligations under this agreement to an affiliated company; any transfer to other third parties will be announced and will not take effect with respect to the Operator if the Operator objects. SMARDA may use third parties to provide its services (agents, sub-processors under the data processing agreement).

12 Intellectual Property

SMARDA reserves all ownership and copyright rights to its own documents, illustrations and calculations. The Operator retains all rights to the data and content it uploads to the CLOUD; SMARDA claims no intellectual property rights in them and receives only the non-exclusive right of use required to operate the CLOUD (in particular, storage, technical reproduction, display and delivery of published content). SMARDA provides a form at smarda.com/meldung-urheberrecht for reports of possible copyright infringements.

13 Advertising and Reference

The Operator grants SMARDA the non-exclusive right to name the Operator and use its logo as a reference (e.g. on the website and in SMARDA presentations). The Operator may object to being named as a reference at any time, with effect for the future, in text form.

14 Warranty and Liability

14.1

The Operator is solely responsible for the goods and/or services sold through the WEBSITE and for fulfilling contracts with End Customers. SMARDA is merely the manufacturer and operator of the CLOUD and assumes no responsibility for the Operator’s content. SMARDA merely stores and automatically processes third-party content; it does not review the content.

14.2

SMARDA warrants that the CLOUD will substantially provide the functions described in the admin system. The Operator shall report defects without delay in a comprehensible form; SMARDA will remedy reported, reproducible defects within a reasonable period. Further warranty claims, in particular rescission or price reduction due to minor defects, are excluded. The provisions on availability (Section 15.1) remain unaffected.

14.3

SMARDA shall be 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 Operator 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. The Operator’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.

14.4

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

15 Availability, Support, Maintenance and Additional Services

15.1 Availability, Support, Data Backup, Updates

SMARDA provides the CLOUD with 99% average monthly availability at the handover point of the cloud infrastructure used by SMARDA; announced maintenance windows, disruptions outside SMARDA’s control, force majeure events and suspensions under this agreement do not count as downtime. SMARDA provides support 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.) and handles incident reports according to their severity; incidents that prevent operations will be given priority. SMARDA performs regular automated data backups (details in accordance with the data processing agreement); these are intended to restore system operations and do not constitute archiving for the Operator. SMARDA installs updates centrally; there is no entitlement to specific new functions. Force majeure events release SMARDA from the affected service obligations for their duration; fees will be reduced proportionally if the service is fully interrupted for more than 14 days.

15.2 Domain Service and Third-Party Providers

Sections 19.1 and 19.2 of the Terms of Use for Partners apply accordingly to the registration of domains through SMARDA and to offers and services from third-party providers, with the Operator replacing the user.

16 Final Provisions

16.1

There are no oral 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.

16.2

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 most closely reflects the economic purpose of the invalid provision.