2. SloopTools GmbH, a private limited company with its registered seat in Austria, is the provider and operator of the Platform (hereinafter the “Operator”).
a. User: Natural persons, who are registered and have created a Customer-Account on the Platform but who are unconnected to any Company and who do not have the necessary rights to make purchases on the Platform;
b. Accessor: Users, who have been given the right to make purchases on the Platform by a Company;
c. Company: Natural or legal persons who have a valid VAT-number and have created a Customer-Account on the Platform. Companies are created by Users/Accessors, who will then handle any purchases made on behalf of the Company;
d. Purchaser: Companies which buy products from Providers on the Platform;
e. Provider: Companies which offer products for sale / licensing on the Platform and who can use the Platform for their respective marketing activities.
RIGHTS IN THE PLATFORM / SOFTWARE
8. The Platform and the Software contain elements and content which do or may enjoy protection (pursuant to e.g. Copyright and Allied Copyright Law, Trademark Law, Patent / Utility Model Law, Design Law, Competition Law or other laws) for the benefit of Operator or co-operation partners of Operator (with the exception of possible open-source elements referred to above). Operator and its co-operation partners expressly reserve(s) any and all rights in and to the same. Any use of these elements and content (or parts thereof), extending beyond what is necessary for using the Platform or Software by Customer under normal circumstances, is inadmissible without the prior written consent of Operator. This applies in particular, but without limitation, to the Software (excluding possible open-source elements), names, characters, trademarks and other marks/signs, content, layout, design and interface of the Platform, databases, videos, photographs, texts and graphics.
using THE PLATFORM, CONTRACTS, CUSTOMER-content
9. The Platform is provided as a marketplace and allows Customers to negotiate and conclude license-contracts in respect of industrial software add-ons (hereinafter the “Add-Ons”) as well as contracts for associated services, like maintenance or support carried out directly by Provider (hereinafter the “Services”). The respective contracts are concluded exclusively between the parties thereto (e.g. a Provider and a Purchaser), without the involvement of Operator (except for the handling of the payment, which is carried out by Operator). Accordingly, Operator does not accept any responsibility or liability in respect of such contracts or their conclusion, legality, validity, application, performance/non-performance, breach, warranty and/or any remedies in respect of the same.
10. Where Customers set up a Customer-Account, they have to ensure the following: (i) only one account is created for each Company; (ii) the details entered on the Platform are accurate, complete and up to date; (iii) adequate proof in respect of the details entered can be provided upon request; (iv) access data and passwords are kept secure at all times and are not divulged to any third party. The Customer-Account must not be used for purposes that violate against applicable laws. Automatically generated registrations or spam-applications are inadmissible.
11. Services can be offered on a fixed-term basis or on a permanent basis (as specified by Provider). Accordingly, the respective contracts have to be terminated by Purchaser in case Purchaser does not wish to continue to receive the Services in the future, otherwise Purchaser will continue to be bound by the contractual relationship. The respective terms are specified on the Platform / the contract.
12. Add-Ons and Services offered by Provider on the Platform may be accepted by Purchasers by the means provided for within the Platform, typically by electronic means. Operator will provide the parties to such a license-contract (Provider / Purchaser) with a model agreement which may be used by the parties to the contract in their own responsibility. Operator hereby expressly points out that such model agreements only cover regular transactions but might not be suitable or all-encompassing in respect of particularities of the actual contractual relationship. These model agreements should therefore only be considered as a recommendation and guideline and Operator does not assume any responsibility or liability in connection with the use/non-use of the same.
13. Payment can be made through the Platform by using the payment methods specified therein (which can be amended from time to time). Payments are handled by Operator to whom the Purchaser makes any payments for contracts concluded with one or more Providers. At the end of each calendar month, Operator forwards the respective payments to the Provider(s), after deduction of the transaction fee (as specified below).
14. Where a contract is concluded within the Platform, Operator is entitled to a transaction fee for its services. The transaction fee will be agreed upon individually between Operator and Provider and will form part of the purchase price for the respective Add-On/Service. All Customers being parties to a specific contract are jointly liable towards Operator for the payment of the transaction fee. The transaction fee shall also apply and become due should the transaction be finalised or payment be made outside the Platform – Operator furthermore reserves the right to exclude or block Customers who engage in such activity.
15. Furthermore, Providers have the possibility to upload information about the Add-Ons/Services they are offering on the Platform, which may include the following: names, descriptions, documentation, keywords, photographs, graphics, drawings, renderings, videos etc – all such content made and uploaded by Provider is considered Customer generated content (hereinafter the “Customer Content”).
16. Customer hereby acknowledges that such Customer-Content may potentially be perceived by an unlimited, indeterminable number of persons worldwide through the Platform. Customer
17. Customer bears the sole responsibility for its Customer-Content and Add-Ons (including their title/denomination, description, content as well as relating information). Operator does not embrace such Customer-Content/Add-Ons and does not assume any responsibility, warranty or liability for the lawfulness, correctness, completeness or accuracy of Customer-Content/Add-Ons or for freedom from third-party-rights. Customer-Content/Add-Ons are in particular not subject to any pre-examination or categorisation in terms of legality or content by Operator.
18. Customer-Content/Add-Ons (including their title/denomination, description, content as well as relating information, where applicable) must not, at any time, violate against applicable laws or established principles of morality and must not contain any content which constitutes a criminal offense, is pornographic, liable to corrupt the youth, glorifying violence, shocking, immoral, indecent or similar. Customer-Content/Add-Ons must not threaten, disparage, denounce, insult and/or put into an incorrect, inappropriate and/or misleading context, any Customer, persons/group of persons, religions/religious communities, entities, trademarks, products or similar.
19. Operator is under no obligation to examine Customer-Content/Add-Ons in respect of their lawfulness but reserves the right (where technically possible) to immediately delete or block Customer-Content/Add-Ons (as well as similar infringements) so that the same cannot be perceived or purchased within the Platform, should any third party assert an infringement (of rights) and/or claim own rights in and to the Customer-Content/Add-Ons (“notice-and-takedown”). Operator furthermore reserves the right to delete or block any associated Customer-Account. Operator is not obligated to verify the entitlement of such third party and/or the asserted infringement (of rights). Customer is not entitled to any claims against Operator on the basis of such measures.
20. Customer hereby guarantees, represents and warrants, that:
a. Customer-Content and Add-Ons have been generated and created by Customer, have not been copied and Customer holds all necessary rights in respect of the Customer-Content and Add-Ons provided and has the power and authority to grant the rights hereunder to the extent that the Customer-Content can be used by Operator accordingly;
b. Customer-Content and Add-Ons (including their content and title/denomination, where applicable) are clear and free of rights of any third party and do not violate against any third party rights. This includes, without limitation, Intellectual Property Rights (copyrights and allied copyrights, synchronisation rights, patent rights, designs rights, trademark rights), personality rights (including moral rights under copyright, rights to be named as creator / inventor and similar rights), interests in confidentiality and securities;
d. Customer-Content or Add-Ons have not been created, generated and/or made available by infringing applicable laws, contractual provisions or any limitations (e.g. exclusivity obligations, other license agreements, house-rules, access restraints or the like);
g. all data and details provided in respect of the Customer-Content/Add-Ons are correct and complete and can be used and disseminated by Operator and all related moral rights under copyright, rights to be named as creator / inventor and similar rights have been observed and properly communicated by Customer;
h. Customer-Content as well as Add-Ons are free of any defects, viruses, computer-worms, malware, spyware or any other potentially detrimental elements for the Platform and/or the Software and the systems of other Customers (including, without limitation, Purchasers).
21. Customer agrees to fully indemnify and hold harmless Operator, its co-operation partners as well as their respective organs, employees, representatives, agents and/or vicarious agents from and against any claims of third parties asserted in direct or indirect connection with the Customer-Content/Add-Ons (including their content, title/denomination or description) or their transmission, making available, dissemination or use by Operator, other Customers, addressees or successors / licensees which are directed against Operator and/or co-operation partners (including their respective organs, employees, representatives, agents and/or vicarious agents). This includes any associated costs (e.g. legal costs).
22. Use of the Platform is granted on a Fair-Use-Basis. Operator reserves the right to delete or block Customer-Content/Add-Ons temporarily or permanently and/or to block any Customer-Account, should Operator become aware of Customers or groups of Customers occupying (at a certain time or over a certain duration) a disproportionately high amount of capacity. Customer is not entitled to any claims against Operator based on such measures.
23. Use of the Platform by Customer is for commercial purposes only.
NON-EXCLUSIVE GRANTING OF RIGHTS
24. Customer remains the author under copyright and owner of its Customer-Content and retains the rights therein. With transmission / making available of the Customer-Content, Customer grants Operator the royalty-free, non-exclusive right to use the Customer-Content by any all means now known or hereafter devised, without limitation as to time, geographical extent or content, in any and all media, by any process and any quantity. This includes, without limitation, the right to copy and reproduce, save, distribute, disseminate, rent/lend, display, broadcast, publicly perform, make publicly available (through wire or wireless) Customer-Content (and/or parts thereof), as well as to synchronise the Customer-Content with other works of similar or different nature, to adapt and edit the same to the fullest extent, to shorten and modify the Customer-Content and to use such adaptations in the aforementioned manner.
25. Operator has the right to transfer the rights granted hereunder in respect of Customer-Content for valuable consideration or free of charge and/or to grant sublicenses or similar limited rights to any third party. Operator is entitled but not obligated to make use of the Customer-Content in the aforementioned manner. This granting of rights to Operator does not limit in any way Operator’s potentially existing rights in or to the Customer-Content (e.g. pursuant to other existing agreements).
26. Operator is in particular authorised to permit other Customers of the Platform the use of Customer-Content.
WARRANTY, LIMITATION OF LIABILITY
27. The Platform and Software are provided on an “as is” basis, without warranty of any kind. Operator accepts no responsibility and assumes no liability for (i) a particular characteristic, suitability, merchantability or fitness for a particular purpose of the Platform or the Software, (ii) uninterrupted or error-free availability and accessibility of the Software or the Platform or the possibility of access or interaction, (iii) transmission-, hardware-, software- or network-errors, (iv) lost, damaged, incomplete, corrupted or delayed transmission of Customer-Content or other data, (v) availability or accessibility of Customer-Content, (vi) the conduct of other users of the Platform, (vii) attacks or access by unauthorised third parties within the Platform or by external parties.
28. Operator reserves the right to interrupt (in part or in full) the operation of the Platform at any time and without prior notice (e.g. for maintenance works, updates etc) or to cease the operation of the Platform altogether (in the latter case, Operator will issue a timely warning). The latter may lead to a deletion of Customer-Content and other settings or data from the Platform and/or that the same cannot be accessed (by Customer and/or third parties) any more. Customer is not entitled to any claims against Operator based on such measures.
29. For the avoidance of any doubt, Operator is not the provider of Add-Ons or Services as specified herein. Therefore, Operator assumes no responsibility or liability in respect of the same and Provider agrees to indemnify and hold Operator fully harmless, should any claims be brought against Operator in respect of Add-Ons or Services.
31. The liability of Operator and Customer for ordinary negligence, consequential damages, indirect damages, third-party damages, immaterial damages and for loss of profits is hereby excluded.
32. Exclusions or limitations of liability of Operator apply also to the liability of co-operation partners and their respective organs, employees, representatives, agents and/or vicarious agents.
33. The Platform may contain links to other websites, advertisements (e.g. in the form of banners or placements), offers or the like of third parties, which do not originate with Operator and are not controlled by Operator. Operator does not embrace the same and does not assume any responsibility, warranty or liability in respect thereof, offered products, services or information or the secure / risk-free access or retrieval of the website the link is leading to. The access, retrieval and utilisation is at Customer’s sole responsibility and risk.
34. Customer hereby explicitly agrees to be contacted by Operator via e-mail, also for advertising purposes. Such e-mail communication may include newsletters, advertising for own services and/or advertising for products or services of advertising partners. Customer can revoke this consent with future effect at any time: firstname.lastname@example.org.
35. By accessing or using the Platform / Software, the following (partly personal) data may be transmitted to and processed by Operator: (i) name, (ii) address, (iii) e-mail address, (iv) VAT-number, (v) payment data, (vi) log-data like IP-address, date and time of access, information concerning the operating system and the internet browser used, website, from which the access occurred (“referrer-URL”), (vii) cookies, (viii) location-specific information and information about the device used (depending on the settings of the device).
36. Personal data of Customer will be used by Operator for the purposes of providing the services to Customers and to fulfil the contract, for maintenance and improvement of services in the context of the Platform and the Software. Customer’s personal data will not be transferred to third parties (unless Customer has given its authorisation or where such transfer is required to fulfil the contract). The use of personal data is based on Art 6 (1) (b), (f) General Data Protection Regulation No 2016/679 (“GDPR”). The personal data of Customer will be used for the following purposes: for the fulfilment of contract or pre-contractual relationships, for direct-marketing purposes, to determine potential geographical exclusions of the Platform or the Add-Ons/Services (e.g. by using the IP-address for verification purposes), to verify the validity of a license code for an Add-On. Personal data will be stored by Operator for the term of the contractual relationship or as long as statutory instruments require the storage of data (e.g. for tax purposes).
38. Customer has the right to get in contact with Operator (email@example.com) and to demand information about his/her personal data stored by Operator and how such data is used (source, purpose of use, possible recipients). Should such personal data be inaccurate, Customer furthermore has the right to demand rectification or deletion of personal data. Customer also has the right to forward any violation to the Data Protection Authority (for Austria: “Datenschutzbehoerde”).
39. In the case of insolvency proceedings or a merger, takeover, restructuring or a sale of assets of Operator’s undertaking, personal data can be transmitted and/or transferred in such transaction. The provisions of this section apply also to data which are transmitted in such transaction and/or to a new legal entity.
40. Customer has the right to demand from Operator information, about how its personal data is used at any time and to demand correction or deletion of such personal data if necessary. Please direct any such requests to the following address: firstname.lastname@example.org.
TRANSFER, APPLICABLE LAW, VENUE, CHANGES
41. Operator reserves the right to transfer its rights and obligations hereunder in part or in full to any third party.