for the cloud store system of Smarda GmbH
Status: October 1, 2022
1 Scope of application
2 Contract language
3 Applicable law, place of jurisdiction and place of performance
4 Cloud store system (CLOUD)
5 Conclusion of contract & Technical requirements
6 Sales via the web store
7 Termination
8 Termination of the agreement
9 License fees, commission & taxes
10 Rights & Obligations of the user
11 Prohibition of circumvention
12 Duty to provide information, communication & Confidentiality
13 Reservation of rights
14 Intellectual property of user content
15 Advertising
16 Warranty and liability
17 Technical availability, maintenance & Force Majeure
18 Additional offers
19 Final provisions
1 Scope of application
1.1
This User Agreement of Smarda GmbH, FN 513822 x, Business Park 10 / Top 49, 8200 Gleisdorf (hereinafter referred to as "SMARDA"), in the version valid at the time of conclusion of the contract/registration, applies to the cloud store system (hereinafter referred to as "CLOUD") www.smarda.com. By concluding the contract/registering, the business user (iF USER) agrees to this user agreement. This User Agreement shall apply to all future transactions with Users, even without further express agreement. Amendments and supplements to the User Agreement, verbal agreements and (general) terms and conditions submitted by the User that deviate from the content of this User Agreement shall only become effective upon written confirmation by SMARDA.
1.2
SMARDA reserves the right to amend this User Agreement at any time. This User Agreement as amended can be viewed on SMARDA in printable form and is available as a PDF file. Amendments shall apply from the date of publication. If the User continues to use the services of SMARDA after an amendment to the User Agreement, the User agrees to the amendment unless the User objects within one month of publication. In the event of an objection, the previous User Agreement shall apply. In this case, SMARDA is entitled to terminate the User Agreement with the User for good cause within two weeks of receipt of the objection. Excluded from this, however, are such changes that relate to the essential contents of the contract.
2 Contract language
The contract language is German. All other information and transactions are offered in German. Documents in other languages are for information purposes only.
3 Applicable law, place of jurisdiction and place of performance
This user agreement and the contracts to be concluded including this user agreement are subject to Austrian substantive law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The exclusive jurisdiction of the court with subject-matter jurisdiction in relation to SMARDA's place of business is agreed.
4 Cloud Shop System (CLOUD)
4.1 General information on the SMARDA reseller structure
4.1.1
SMARDA is the developer and operator of the CLOUD, through which Users are given the opportunity to create online web stores (hereinafter referred to as "Web Shop") integrated in the CLOUD and to resell these to their own customers (reseller system). These clients can use the web stores created by the User to sell goods and/or services to their own customers (hereinafter referred to as "Customer"). A contract for the use of this cloud service or the CLOUD is concluded between SMARDA and the User with this User Agreement. The contract between users and their own clients is not part of this User Agreement. Users are therefore generally liable themselves for agreements that they make with their clients when reselling stores.
4.1.2
SMARDA provides the User with tools in the CLOUD with the help of which Users can create their own, fully comprehensive and largely personalized web stores. As Smarda is designed as a reseller system, the creation of web stores is not intended for the User to sell the goods and/or services themselves via these web stores, but rather to resell the created web stores as a reseller to their own clients - usually online retailers or online store operators. This reseller structure is supported by SMARDA in the form of rebilling options. The respective functions and their scope of services as well as costs can be accessed and viewed by registered users at admin.smarda.store and are considered part of this agreement. SMARDA reserves the right to change, expand or discontinue functions at any time, insofar as these do not relate to the essential contents of the Agreement.
4.1.3
The User can choose between various business models, which can be called up and viewed at admin.smarda.store and are considered part of this Agreement. The user can create several web stores.
4.1.4
SMARDA is not itself the operator of the web stores. SMARDA exclusively assumes the technical organization of a sales opportunity in the form of the cloud store system functionality for the Users. The contract regarding the (sales) purchase of goods and/or services - including all rights and obligations arising therefrom - is concluded between the clients of the Users and their customers. Technical protection devices may not be circumvented by the user.
4.2 Use
When using the CLOUD, the User must observe the applicable legal norms and protect the rights of third parties. In particular, the User is prohibited from infringing third-party property rights such as trademarks, copyrights and naming rights when using the CLOUD; from distributing or otherwise disseminating offensive, defamatory or otherwise criminally relevant content; unreasonably harass third parties in violation of data protection or competition law, for example by sending unsolicited advertising (spam), using mechanisms, software and/or scripts that go beyond the functions and interfaces provided, in particular if this blocks, modifies and/or overwrites services or functions of the CLOUD, and these services are necessary for the contractual use of the CLOUD and to attempt to impair the CLOUD or the content accessible in it by data modification, computer sabotage, falsification of evidentiary data, suppression of evidentiary data, computer fraud, spying on data, interception of data or other criminal offenses. The user shall be responsible for observing the import and export regulations applicable to the deliveries or services. In the case of cross-border deliveries or services to the User's customers, the User shall bear any customs duties, fees, taxes and other charges incurred. The user shall handle legal or official procedures in connection with cross-border deliveries or services on its own responsibility.
4.3 Free trial period when creating web stores
SMARDA offers the possibility to create web stores without any immediate costs. Layouts and functions can be created and tested. However, real sales cannot be made by the user or their client and access to the store system for the user's customers is not permitted during the free trial period. The period of free use for setting up, creating and testing as well as the ongoing costs for the use of the selected scope of services for a web store are visible to users in the admin system at admin.smarda.store and are part of the agreement. At the latest one month before the end of the free trial period, the user will be informed of the expiration date and also that after this date the costs will be charged in accordance with the selected scope of services.
4.4 Beta versions
SMARDA may offer the User - for testing purposes - to use pre-release/beta functions that are still under development. Supplementary user agreements, which SMARDA sends to the User on occasion prior to the use of such pre-release/beta functions, may apply. Irrespective of the validity of the present User Agreement, Users may only publicly disclose information on the use of these pre-release/beta functions with the prior written consent of SMARDA. SMARDA in no way guarantees that the pre-release/beta functions will work. SMARDA may discontinue the pre/beta functions at any time at its own discretion. SMARDA shall not be liable for any damages arising out of or in connection with any Pre-release/Beta Features.
4.5 Third-party applications
The CLOUD may also include interaction with third-party applications. SMARDA will provide the User with an interface for contracts with third parties - insofar as this has been agreed separately - and support the User in concluding contracts with third parties. If no separate agreement exists, it is the responsibility of the respective User to create the necessary conditions for interaction with third-party applications. However, SMARDA is in any case not involved in the contracts with third parties.
5 Conclusion of contract & Technical requirements
5.1 Conclusion of contract
5.1.1
Use of the CLOUD to its full extent and, in particular, the provision of web stores and the execution of purchases/sales of goods/services and orders via the web store are only possible with prior conclusion of a contract by registration of the User. In the course of the registration process, the User must confirm that he/she creates and uses SMARDA's web stores exclusively for the exercise of his/her business activities; use for family or private purposes is not permitted.
5.1.2
After successful registration and confirmation of the contract by SMARDA, the contract is concluded and the User can log in to his account using his e-mail address and password. SMARDA expressly reserves the right to accept or reject a registration without giving reasons. SMARDA must be informed immediately of any changes to the data. Registration with incorrect data is not permitted and will result in immediate exclusion. Multiple registration is prohibited.
5.1.3
Users are obliged to ensure and take all necessary measures to ensure that the registration or access data are not made accessible to third parties. SMARDA only checks whether the password matches the password chosen by the User. SMARDA is under no further obligation to check. Anyone who logs into the CLOUD with the User's (secret) password shall be deemed authorized to use the Cloud System to the extent that the User is authorized to use it. Users are also obliged to notify SMARDA immediately of any unauthorized access to the access data by third parties and any misuse of the account. SMARDA is entitled to block the user area until the risk of misuse has been eliminated.
5.1.4
The User or its client is responsible for all activities and content such as photos, images, videos, graphics, written content, audio files, code, information or data that are uploaded, recorded, generated, stored, displayed, distributed, transmitted or displayed on or in connection with its web store. The user shall ensure that the identity of each individual store operator (including the official name of the company including the company register number - if available - to which the web store belongs) is clearly displayed in the web store (imprint obligation) and that the persons concerned are provided with a data protection information sheet/data protection declaration.
5.1.5
If SMARDA accepts a registration, the User will be given access to its own user area, in which the User can provide access to its own clients and upload goods and/or services in the web store and process and view orders. The User can manage all his data in connection with the CLOUD via this user area. SMARDA is entitled to inform all registered users about changes and extensions to the store system by e-mail or telephone.
5.1.6
Depending on the chosen business model, the User may also create several user accounts and grant other persons access to his user area. The user shall be responsible and liable for the acts, omissions and failures to act resulting from the use of employee accounts to comply with the obligations under these User Terms and Conditions in the same way as for his own acts, omissions or failures to act.
5.1.7
A breach of any of the above conditions entitles SMARDA to extraordinary termination of the contract for cause.
5.2 Technical system requirements
In order for the User to be able to use the CLOUD to the agreed extent, he must create the necessary (system) requirements. If the User has not created the (system) requirements, the CLOUD cannot be used or can only be used with errors. SMARDA shall not be liable for any resulting damage/additional amount.
5.3 Data processing agreement
At the same time as concluding this User Agreement, the User concludes an order processing agreement with SMARDA. In this respect, SMARDA processes the data provided by the User or its customers within the framework of this data processing agreement.
6 Sales via the web store
6.1
The goods and/or services offered in the web store are sold exclusively by the User's customers. Neither SMARDA nor the User are therefore sellers themselves, but organize the processing of the (sales) purchase exclusively between the store operator and its customers. The regulations for (sales) purchases between users and customers must be agreed between the user and his customers.
6.2
At the same time as the Customer orders a product via a web store of a User or its Client, SMARDA and the User may, if so agreed, be entitled to a commission from SMARDA. In any case, a purchase by a Customer via the web store constitutes an earning of SMARDA.
7 Termination
7.1
The contract may be terminated by either party in writing (e.g. by e-mail or by post) at any time at the end of the current month of use with one month's notice, unless additional existing agreements on the use of web stores conflict with these periods. Termination for good cause remains unaffected by this. There is no (pro rata) claim to reimbursement of fees and also no claim to the transfer or storage of any data created by the User or its customers or imported into SMARDA on the part of the User or its customers. After lawful termination, the irrevocable deletion of data is provided for in accordance with the GDPR.
7.2
In addition to the use of SMARDA, the User concludes additional agreements in SMARDA's admin system by creating his own web stores, which may contain their own notice periods. All agreement details for the created web stores (such as free trial periods, costs for the selected scope of services, sales commissions, notice periods, etc.) are agreed between the User and SMARDA in the admin system.
7.3
Outstanding amounts owed by the User to SMARDA for the use of the CLOUD up to the effective date of termination or dissolution are immediately due in full and invoiced.
8 Termination of the Agreement
8.1
SMARDA may block the User's access to the CLOUD upon termination of the Agreement. Support services in connection with the termination of the contract, in particular the provision of data, will be provided by SMARDA exclusively by separate agreement.
8.2
Upon termination of the contractual relationship, SMARDA will not store all data of the User as well as such data that the User receives in the context of the web store offers/sales after termination of the agreement. The Customer must back up all of its data during the notice period.
9 License fees, commission & taxes
9.1 License fees
9.1.1
The User undertakes to pay SMARDA the agreed monthly license fee for the use of the Cloud Service or the CLOUD and, if applicable, commissions to be agreed for the sales made by the web stores created by the User. The agreed commission, if any, shall be calculated on the basis of the turnover of the sales made via the user's web store. For the additional use of further products or services of SMARDA (extensions), a fee is to be paid in accordance with a separate agreement. All significant or generally applicable fees and costs for the provision of services by SMARDA can be accessed and viewed by registered users at any time at admin.smarda.store and are part of this Agreement.
9.1.2
The User must select one of the payment methods offered in the course of registration. The authorized payment method will be used to pay all fees and commissions until the contract is terminated and all outstanding costs have been paid in full. A subsequent change of the payment method is possible in agreement with SMARDA. All fees are stated in euros and all payments are made in euros. If no payment options have been selected, payment by invoice shall be deemed agreed.
9.1.3
License fees are invoiced by SMARDA in advance at the beginning of each month of use. The prices quoted by SMARDA are net prices excluding VAT plus taxes, fees, duties, etc. The invoice will be sent to the User in writing. The invoice is sent to the user via the e-mail address provided. In addition, the invoice is stored in the customer's user area. Upon receipt of the invoice, it must be paid within one week without deduction. Payments by the User have only been made when SMARDA can dispose of the payment amount without reservation.
9.1.4
Any (additional) expenses incurred by SMARDA for services that are not covered by the fees under this User Agreement will be invoiced separately to the User.
9.1.5
If the fees cannot be collected with an authorized payment method of SMARDA, SMARDA will try to collect the fees again after three days. If the second attempt is unsuccessful, SMARDA will make a final attempt three days after the second attempt. If the last attempt is unsuccessful, SMARDA has the right to block the User and thus access to the web store. The user can be reactivated by SMARDA as soon as the user has paid the outstanding fees plus all fees for the next billing cycle. If the outstanding fees have not been paid after 30 days from the date of blocking, SMARDA reserves the right to terminate the User and delete all data of the User. Any resulting additional costs shall be borne by the User.
9.1.6
The User is only entitled to offset if the counterclaims have been legally established, recognized by SMARDA or are undisputed. The User is only authorized to exercise a right of retention if his counterclaim is based on the same contractual relationship.
9.1.7
Without limiting any other remedies, SMARDA may suspend or terminate the User if SMARDA has reason to believe that the User or the User's principal (through conviction, settlement, insurance or investigation of trust assets or otherwise) is attempting or is about to commit fraudulent acts in connection with the CLOUD.
9.2 Entitlement to commission
For the determination of a sales-related commission, SMARDA is entitled to collect the User's web store sales relevant for the determination of the commission at any time and to process them for billing purposes. The commission claim arises, if separately agreed, with the order of the goods by the User's customer. Commission fees are invoiced by SMARDA on a monthly basis. In the event that orders are canceled, the commission claim remains in full, unless the User or his client (store operator) notifies SMARDA of the cancellation within 3 months of the order.
9.3 Taxes & Duties
The User and its customers are responsible for the payment of all applicable statutory taxes, fees and duties. If SMARDA charges such taxes, they will be calculated using the tax rates based on the billing address provided by the User and will be billed by SMARDA via the payment method authorized by the User. The User must provide appropriate proof if he is exempt from paying taxes. The tax exemption only applies from the date on which SMARDA receives sufficient proof of tax exemption. If the User is not charged taxes by SMARDA, it is the User's responsibility to check whether taxes must be paid. In this case, the User must pay the taxes himself.
10 Rights & Obligations of the User
10.1
SMARDA grants the User a simple, temporal, spatially unlimited right of use for the term of the contract, limited to the use of the services provided in the CLOUD for his own business purposes for the intended and contractual use of the CLOUD. No further rights are granted.
10.2
The User shall not use the CLOUD to directly or indirectly develop or improve a comparable service or product itself or through third parties.
10.3
The User must comply with applicable law, protect the rights of third parties and take reasonable precautions against the loss of its content in the CLOUD. The User shall be responsible for compliance with the statutory provisions regarding the content posted by the User in the CLOUD. The user may not use the CLOUD for illegal or unauthorized purposes, nor may he violate the laws of his own country or the destination country when using the offer. If the User does not fulfill his obligations despite SMARDA's request - granting a reasonable grace period - SMARDA is entitled to extraordinary termination of the contract for good cause. The same rights also apply to SMARDA if a client of the User commits one of the breaches listed here.
10.4
The CLOUD also contains third-party open source software (hereinafter referred to as "OSS"). In deviation from this User Agreement, the User shall only receive such rights of use to this OSS as result from the license conditions applicable to the OSS. At the User's request, SMARDA will inform the User which OSS is contained in the CLOUD and under which license conditions, if this is not already apparent from a document provided to the customer with the CLOUD or from documentation belonging to the CLOUD.
10.5
The User undertakes not to reproduce, duplicate, copy, sell, resell or exploit any part of the CLOUD and SMARDA's offer, its use or access to it.
10.6
The User will not - without express authorization - acquire search engine or pay-per-click keywords (such as Google Ads) or domain names containing SMARDA and/or variants and misspellings thereof.
10.7
Claims for defects are excluded, unless the defect was fraudulently concealed. Any use of the CLOUD contrary to this User Agreement immediately terminates the right to further use of the CLOUD and SMARDA is entitled to an extraordinary right of termination for good cause.
10.8
The User agrees that the use of the CLOUD is limited to a reasonable number of stored images and data, in accordance with the fair use principle. The fair use principle refers to reasonable and proportionate use that does not cause an excessive load on the system. The user undertakes to use the system resources in good faith and not to take any action that could compromise the integrity of the store system. The provider reserves the right to charge additional fees or to restrict use.
11 Prohibition of circumvention
12.1
The User must provide SMARDA with all necessary information and facts truthfully. Changes in circumstances, in particular changes in data (name, address, e-mail, payment data) should be brought to SMARDA's attention immediately. The User is obliged not to make any false statements in his profile and in the other areas of the CLOUD. SMARDA reserves the right to terminate the existing user agreement with immediate effect in such a case.
12.2
Communication between SMARDA and the User takes place primarily via the e-mail address provided by the User during the registration process. If the User changes his e-mail address, he must inform SMARDA immediately.
12.3
The User is obliged to treat confidentially the data and information, including those of other Users and their goods/services, etc., of which he/she becomes aware within the framework of the User Agreement and not to pass them on to third parties, unless such disclosure is necessary for contractual fulfillment or is required by law.
13 Reservation of rights
13.1
SMARDA reserves the right to change or discontinue the offer at any time for any reason and without notice. Excluded from this, however, are such changes/settings that relate to the essential contents of the contract. SMARDA is not obliged to make all offers or functions available in the same or equivalent form in all countries. SMARDA may refuse its offer to a person at any time for any reason.
13.2
SMARDA is entitled to remove materials and block or terminate users if SMARDA determines that the goods/services offered via the respective web store or the materials uploaded or published in a web store violate this User Agreement. Customer-side information or materials are not pre-screened by SMARDA and it is at SMARDA's sole discretion to refuse or remove any materials, including an entire Web Shop.
13.3
SMARDA is entitled to make the same offers in the CLOUD available to competitors of the User or their clients. No User is granted exclusive use of the CLOUD.
13.4
In the event of disputes regarding the ownership of the web store or the user area, SMARDA reserves the right to request documents in order to determine or confirm this. These documents may include, but are not limited to, a copy of a business license, an official photo ID, the last four digits of the credit card on file, etc. SMARDA reserves the right, in its sole discretion, to determine rightful ownership and transfer a User Area to the rightful user. If SMARDA, without prejudice to its other rights and remedies, is unable to determine the rightful owner of the User Area, SMARDA reserves the right to temporarily deactivate a User Area until the parties to the dispute have reached a resolution.
13.5
SMARDA receives from the User exclusive rights of use for all known and unknown types of exploitation, unlimited in terms of territory, time and content, to any feedback from the User in connection with the use of the CLOUD. SMARDA does not owe any remuneration for these transfers of rights. The User shall ensure that it is also entitled to this transfer of rights for its employees and any other users of the CLOUD.
13.6
SMARDA is entitled to transfer the contracts of use concluded with the User to third parties in whole or in part or only because of individual rights from these contracts. If the third party is a company affiliated with SMARDA, the transfer is effective even without the consent of the User. Otherwise, SMARDA will inform the User of the intended transfer in text form in good time. If the User objects to the transfer, it will not become effective.
13.7
The User may assign rights arising from the contract with SMARDA to third parties only with the consent of SMARDA. SMARDA will only refuse consent for good cause.
13.8
SMARDA is further entitled to have all services rendered to the User performed by assistants. The contract between the Customer and SMARDA remains unaffected by this.
14 Intellectual Property of User Content
14.1
SMARDA reserves ownership rights and/or copyrights to its own illustrations, drawings, calculations and other documents. This also applies to written documents that SMARDA designates as "business secrets" or "confidential information". Such documents may only be passed on to third parties with SMARDA's prior express consent in text form.
14.2
The User retains the (intellectual) property rights to all data uploaded to the CLOUD. SMARDA does not claim any intellectual property rights to the materials that the User makes available to SMARDA. All data uploaded by the User remains the property of the User. The User may remove his web store at any time by deleting his account.
14.3
By uploading data, the User agrees that he allows other (Internet) users to view and access the data published in his web store; that SMARDA may store his data and, if the User has published this data, display and use it; that SMARDA may check and delete all data transmitted to the CLOUD at any time, although SMARDA is not obliged to do so. The User is responsible for ensuring that the data complies with all applicable laws or regulations.
14.4
SMARDA supports the protection of intellectual property. SMARDA also expects its users to behave accordingly when creating and publishing content in the web store and investigates suspected copyright infringements. SMARDA provides a separate form at https://www.smarda.com/geistigeseigentum so that information and complaints about possible copyright infringements by a web store from the CLOUD can be transmitted to SMARDA and actively investigated.
15 Advertising
The User grants SMARDA a non-exclusive right and license to use the User's names, trademarks, service marks and logos associated with the Web Shop to advertise SMARDA. The User also grants SMARDA the right to name him or his clients as reference customers.
16 Warranty and Liability
16.1
The User uses the CLOUD and all associated offers at his own risk. A user agreement on the Cloud is concluded between SMARDA and the User. The User shall be exclusively liable for defects in the goods/services of the User or any defective performance of the contract by the respective User within the framework of the relevant contractual relationship. The customer must address all resulting claims to the respective user; however, this does not lead to the termination and/or rescission of the user agreement concluded with SMARDA. SMARDA shall not be liable for the offers of the Users or the execution of the contract between User and Customer.
16.2
SMARDA is merely the manufacturer and operator of the CLOUD and therefore assumes no responsibility for the content of the Users, the failure or conclusion of the contract with their customers, its proper fulfillment or any deficiencies in performance. These claims of the customer are to be directed directly against the respective user. SMARDA is only liable for content created and published by SMARDA itself.
16.3
SMARDA's liability for damages in connection with the use of the CLOUD is limited to intent and gross negligence and at most up to the fair market value of the services used by the Customer. In particular, SMARDA shall not be liable for any loss of earnings incurred by the user as a result of a failure of the CLOUD. SMARDA's liability for financial losses (property damage) caused by slight negligence is excluded. In addition, SMARDA is only liable for typical and foreseeable damages, i.e. for damages that could reasonably be expected to occur at the time of conclusion of the contract according to the circumstances known at that time. Claims arising from (consequential) damages as well as from damages for which the Customer can obtain insurance cover or which are controllable by the Customer, from other indirect damages and losses or loss of profit as well as generally mere financial losses, in particular from defective, omitted or delayed provision of services, are expressly excluded. Damages in connection with the CLOUD shall become time-barred within six months of knowledge of the damage and the damaging party.
16.4
The User agrees to indemnify and hold SMARDA and (to the extent applicable) its parent company or subsidiaries, affiliates, SMARDA partners, officers, directors, agents, employees and suppliers harmless from any claim or demand (including reasonable attorneys' fees) made by any third party due to the User's breach of this User Agreement.
16.5
Third-party content is only stored by SMARDA and, if necessary, processed automatically in connection with the services available in the CLOUD. SMARDA has no knowledge of the third-party content. SMARDA does not select or otherwise control the third-party content. Nor does SMARDA supervise the User or issue instructions to the User.
16.6
Content, websites or third-party products that are not operated by SMARDA can be accessed or integrated via links or functionalities in the CLOUD. SMARDA is not responsible for such content, websites and third-party products.
17 Technical availability, maintenance & Force Majeure
17.1
Users and their customers acknowledge that SMARDA does not provide any specific server capacities for the platform and that the Service also depends on the Internet connection of the Users and their customers. The infrastructure of the CLOUD is only designed for availability that is customary in the industry and market. SMARDA does not guarantee permanent availability of the CLOUD. In particular, the CLOUD is not available during routine, necessary and planned maintenance work. As far as possible, necessary maintenance and repair measures will be announced in good time on the website or by e-mail. However, unavailability due to technical faults is possible at any time. The user must also accept longer periods of unavailability.
17.2
For the transmission of data between Users or their customers and SMARDA, unsecured connections are sometimes used, as well as connections that do not allow a return channel. It is not possible for SMARDA to determine whether and which data has been changed during transmission and how. SMARDA rejects any warranty, liability and costs for connection errors and misuse by third parties. SMARDA does not warrant that the Services will be uninterrupted, timely, secure or error-free or that the results that may be obtained from the use of the CLOUD will be accurate or reliable. SMARDA strives to minimize the likelihood of errors and misuse by using current technologies. SMARDA does not guarantee that the CLOUD will be available at all times.
17.3
SMARDA's CLOUD is provided as so-called "Software as a Service" (SaaS). The software is regularly maintained and requires updates. Updates are changes to the CLOUD through which its functionality is changed with the aim of improving the offer or solving a specific problem. Updates may also serve to adapt the CLOUD to changed legal requirements. However, the user is not entitled to this. SMARDA installs updates itself via the CLOUD. The installation of updates as well as support and consulting services or the provision of new software generations are not owed by SMARDA. The User is not entitled to new software generations or updates on specific dates or within specific periods of time.
17.4
SMARDA will use its best efforts to provide updates that correct serious errors of the CLOUD or of extensions. Specific response or recovery times are not promised.
The User acknowledges that updates from SMARDA can only be tested for standard installations. In particular, no side effects that affect customer settings can be tested. A promise that an update will change the functionality of the CLOUD in every detail is expressly not given.
With the installation of updates, the user receives the same rights of use as for the CLOUD for which the update was installed.
17.5
Force majeure or other unforeseen obstacles in the sphere of SMARDA release it from compliance with the agreed obligations. In particular, operational and traffic disruptions, improper performance by subcontractors, transport interruptions or production stoppages are also considered force majeure; for the duration of the aforementioned hindrance, SMARDA is released from the obligation to provide the service without the Customer being entitled to a price reduction or other compensation.
18 Additional Services
18.1 Domain Service
18.1.1
Within the framework of the CLOUD, SMARDA also offers to register domains for users or their clients. SMARDA is free to apply for the registration of the domain directly at the registry or via an intermediate registry (third-party provider). The User undertakes to pay SMARDA an annual flat fee for each domain to be registered for him, payable for each commenced contractual year of each registered domain. The first billing period begins with the registration of the respective domain.
18.1.2
SMARDA is the contact person of the registry for the domain registered on behalf of the user for the duration of the user agreement. SMARDA checks whether the domain requested by the User has already been assigned to third parties. If the check shows that the domain requested by the User has not yet been assigned to a third party, SMARDA will initiate the necessary measures to register the domain in the name of the User with the respective competent registry (domain registration). If the check reveals that a domain requested by the User has already been assigned to a third party, SMARDA will inform the User of this. SMARDA has no further obligations with regard to the domain already assigned. SMARDA is not responsible for the success of the registration, i.e. the actual registration of the domain. SMARDA has no influence on the allocation practice of the registries and therefore cannot influence that the requested domain is actually allocated to the User after the domain registration.
18.1.3
SMARDA does not check at any time whether the registration of the domain for the User infringes the rights of third parties or violates general laws. Should third parties assert claims against SMARDA due to possible legal violations resulting from the registration and/or use of the contractual domain, the User is obliged to indemnify SMARDA from any liability and to reimburse SMARDA for the costs incurred as a result of the claim. The indemnification obligation due to the costs includes in particular the obligation to indemnify SMARDA from necessary legal defense costs (e.g. court and lawyer's fees).
18.1.4
The domain service contract is concluded for a period of one year from the registration of the domain. With the purchase of a domain name via SMARDA, the domain registration is preset in such a way that it is automatically renewed every year as long as the User offers goods/services via the CLOUD. The user confirms that it is his sole responsibility to deactivate the automatic renewal if he no longer wishes to use the domain. Any fees already due at the time the termination takes effect must be paid in full by the user. The right of termination for good cause remains unaffected. An important reason for SMARDA to terminate this additional service exists in particular if the User has to transfer his domain to a third party due to a legally binding decision of an ordinary court or according to the Uniform Domain Name Dispute Resolution Policy (UDRP), if the registration is to be canceled or if the User does not meet his obligation to pay according to the agreement with SMARDA despite a reminder and setting a deadline.
18.1.5
After termination of the contract, SMARDA is obliged to release the domain. For this purpose, SMARDA will make all declarations required by the User to make the necessary changes to the domain entries.
18.2 Offers and services of third-party providers
18.2.1
In connection with the CLOUD, SMARDA may also recommend offers (products, services, website links, etc.) from third-party providers to the User, enable access to them or activate them. These offers are only made available to the user as a service. If the user purchases, uses or accesses them, this is done exclusively between the user and the respective third-party provider.
18.2.2
SMARDA makes no warranties or representations with respect to Third Party Providers. The User acknowledges that SMARDA has no control over and is not responsible or liable for the availability, contractual and usage conditions of Third Party Providers. The User acknowledges that SMARDA may disable access to Third Party Providers via the CLOUD at any time at its sole discretion and without notice to the User.
18.2.3
The User is obliged to seek advice from specialists, if necessary, before using or accessing offers and services from third-party providers for which the User obtains access via the CLOUD.
18.2.4
If the User installs an offer from third-party providers or activates third-party providers for use, the User thereby grants SMARDA permission to allow the respective third-party provider to access the User's data and to take other measures that are necessary for the compatibility of the third-party provider with the cloud store system. Any exchange of data or any other interaction between the user and the third-party provider shall take place exclusively between the user and the third-party provider.
18.2.5
is not responsible for any disclosure, modification or deletion of the User's data or for any corresponding loss or damage suffered by the User as a result of a Third Party Provider's access to the User's data. The relationship between the User and the Third Party Provider is solely between the User and such Third Party Provider. SMARDA is not obliged to intervene in disputes between the User and the Third Party Provider.
18.2.6
SMARDA shall under no circumstances be liable for any direct, indirect, incidental, special, consequential, exemplary, punitive or other damages arising out of the User's contractual relationship with Third Party Providers. These limitations apply even if SMARDA has advised the customer of the possibility of such damages. The above limitations apply to the maximum extent permitted by law.
18.2.7
The User agrees to indemnify and hold SMARDA and (to the extent applicable) its parent company, affiliates, SMARDA partners, officers, directors, agents, employees and suppliers harmless from any claim or demand (including reasonable attorneys' fees) arising out of or relating to the cooperation with Third Party Providers.
19 Final provisions
19.1
There are no verbal collateral agreements to this agreement. Any amendments and additions to this agreement must be made in writing. This shall also apply to any agreement to deviate from this formal requirement.
19.2
The invalidity of a provision of this user agreement shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by an economically equivalent or similar but permissible provision.