Terms and Conditions
SimpliFlow GmbH is an IT- and mobile application service provider with its business focus on the generation, conception, development, implementation as well as commercialization of fully automated sports and health care systems including software- and hardware components as well as mobile applications ("Apps", together the "Product").
By means of a web-based communication platform (accessible under www.simpliflow.com) called "FLOW", SimpliFlow in association with highly distinguished partners around the globe delivers to domestic as well as foreign platform users and potential business partners individualized sport scientific knowledge, in order to practically create and use individualized practicing plans and –protocols whenever and wherever needed.
A modular structure of the SimpliFlow web-platform facilitates customized as well as swift reactions to claims of users being actively involved with the implementation and development of novel training programs and related Apps.
Due to a broad network of software-developers, web-designers as well as programmers optimization of a commercial exploitation of the Product is secured.
These General Terms and Conditions constitute the legal and commercial framework for the contractual relation herewith entered into by and between SimpliFlow and users registered on the web-platform "FLOW".
§ 1 Definitions
The definitions set forth below are used in these General Terms and Conditions repeatedly and are therefore defined below for the sake of better comprehension. The definitions set forth below encompass both the singular and the plural of the terms referenced in each case
- Collective Account
- Intellectual Property
- License Agreement
- Product Portfolio
Each possible application developed and distributed by SimpliFlow in relation to its Product and the web-platform "FLOW". Each App of SimpliFlow forms an integral part of the product portfolio with its use being subject to the terms and conditions of the underlying contractual relation.
All natural persons and legal entities making legally proper use of the SimpliFlow Platform, thus encompassing Members and all Users, irrespective of whether they are registered
Member Account deemed to be used by multiple Members, whereby access rights to and use of which by authorized person (e.g. athletes etc) is defined by the Member implementing the account (e.g. coach)
Web-based communication platform implemented and operated by SimpliFlow (accessible under www.simpliflow.com) for the interactive supply, distribution and commercialization of its Products.
Hardware component that forms part of the Product Portfolio marketed by independent distributors. Acquisition of the Flow-Tag, as far as the legal relation with SimpliFlow is concerned, is subject to these GTC, as concerns contractual conditions with the distributor, sales terms of each such distributor to be disclosed to the prospect prior a purchase decision.
These General Terms and Conditions of Business, which are deemed the exclusive basis for the licence agreement entered into by and between SimpliFlow and the Counterparty.
Any proprietary rights, including in particular (i) copyrights, (ii) trademarks- and signs and any protectable Know-how in connection with or relating to the platform FLOW, the Product or an underlying App (as the case may be).
Agreement that incorporates the legal relation among the contracting parties being exclusively established on the basis of these GTC.
Any natural person or legal entity including Associations, clubs and other sport related institutions worldwide, who have properly registered on the platform "FLOW" in order to get access through a generated member account/user interface to certain functions and applications of the Product. All registered members are also able to make use of specific functionalities of the platform "FLOW".
The account which is individually created at the time of any Member's registration, by which that Member gains access to the User Interface.
Any natural person or legal entity who calls up the website of SimpliFlow or the Platform "FLOW" on the Internet or causes it to be accessed without becoming a (registered) Member.
The entire assortment of Products, Apps and other mobile features (e.g. Bronze, Silver, Gold, Recreation, Position Specific etc) as amended from time to time, offered and communicated on the platform "FLOW" or over the individualized User-Interface to registered Members and which is ready to be accessed and used on the basis of a specific pricing schedule.
Registration on the platform "FLOW" by a User in order to become a Member.
SimpliFlow GmbH, Schönbrunner Strasse 61/B25, A-1050 Vienna, Austria.
The individualized interface assigned to and reserved for each registered Member on the platform "FLOW".
§ 2 Scope of Application
(2) These GTC shall be deemed exclusively binding directly between SimpliFlow and its Counterparties. In absence of a provision therein which provides expressly to the contrary, no legal effects and entitlements/claims etc. on the basis of a third-party beneficiary agreement or an agreement with protective effect for third parties shall be deemed to arise. The foregoing shall also apply where these GTC contain provisions that are of significance with respect to the relations of the members or users inter se (e.g. with respect to formation or the substance of contracts).
(3) Contractual deviations from these GTC shall, in each individual case, require express written consent by SimpliFlow. If supplemental rules are intended to apply with respect to certain functions, services or areas of the platform "FLOW", SimpliFlow shall separately alert the Counterparty to such terms prior to first-time execution/usage of the function, service or area in question. By executing functions/making use of the services or areas, the Counterparty is deemed to give its express consent to the relevant supplemental terms and to acknowledge them to be binding on him/her. The supplemental terms shall apply with respect to all use of the same function/service or area.
(4) When using the platform "FLOW", the Counterparty shall note and comply with applicable law and the terms of these GTC.
(5) By entering into an agreement with SimpliFlow according to § 3 (1), each counterparty accepts these GTC which shall apply for the entire duration of the underlying business relation. Terms and conditions of a Counterparty, if any, do not automatically become a subject matter of the agreement underlying these GTC and shall only be considered if accepted by SimpliFlow in writing subject to an individual side arrangement.
(6) Employees or other contractors or agents of SimpliFlow being integrated in the performance of this agreement shall not be entitled to make side arrangements the content of which exceeds the agreement between SimpliFlow and the Counterparty or the content of these GTC respectively.
§ 3 Execution of a Contract
(1) Contractual relations between the Counterparty and SimpliFlow shall be deemed to arise on the basis of a written and/or electronic offer by SimpliFlow and the Counterparty's express or implied acceptance by his/her registration on the platform "FLOW".
(2) Implementation of and granting of access to the platform "FLOW" as well as a transparent reference to these GTC shall signalize SimpliFlow's intention to contract on the basis of the underlying terms and commercial conditions. Counterparties may access the most recent version of these GTC via a transparent link on the website www.simpliflow.com/[●]. Framework conditions regarding contractual use of the User-Interface will be communicated/delivered electronically to each Member in the course of his/her registration with the platform "FLOW" and an updated version thereof is available for review at www.simpliflow.com/[●].
(3) Offers by SimpliFlow to enter into contracts shall be deemed subject to change. The products and services described or advertised online, in brochures or other advertising materials do not constitute binding offers.
(4) In the event of a registration, the Member shall give his express confirmation of agreement with these GTC by activating/clicking on the field intended for this purpose.
(5) If requested by mandatory law, consumers may revoke their declaration of acceptance of contract within 2 (two) weeks from the date of their legally valid registration on the platform "FLOW" without the need to state any reasons therefor. Revocations must be given in written or electronic form (e.g. letter, e-mail). For purposes of complying with the revocation period, timely despatch of the notice of revocation shall suffice.
(6) SimpliFlow is entitled to refuse to enter into an agreement with the Counterparty or rescind therefrom at any given time if:
(a) there are well-founded doubts with respect to the identity, legal capacity/legal personality of the Counterparty or of the power of attorney of an individual acting in the Counterparty's name (whether natural person or legal entity);
(b) there are well-founded suspicions of improper use of the platform "FLOW", particular Products or of applications accessible via the Member Account (User Interface) which is exclusively allocated to that Member;
(c) there are other facts and circumstances which render it unreasonable to SimpliFlow, from its perspective, to enter into or sustain a contractual relationship.
(7) SimpliFlow is entitled to substantively alter functions and services present, to deactivate them temporarily or permanently, or to introduce new functions and to premise individual functions on satisfaction of certain preconditions.
(8) In the event that discrepancies with respect to the content of IT-related terms and symbols, quality requirements, format requirements or the like exist, the provisions in such version as was applicable at the time the parties' contract was formed shall be applied at higher rank of priority.
§ 4 Subject-matter and scope of services
(1) Subject-matter of the Licence Agreement underlying these GTC is limited to the provision of the platform "FLOW" and the Product Portfolio to registered Members as well as contractual use of selected services of SimpliFlow in consideration of any legal and commercial framework conditions stipulated hereunder.
(2) As a general rule, it is open to every User to access the platform "FLOW" for the intended purpose. To use specific services including access to the Product Portfolio registration on the platform "FLOW" pursuant to § 6 is relevant.
(3) Services of SimpliFlow may inter alia include:
(a) Provisioning, regular updating and maintaining the platform "FLOW";
(b) Converting and implementing generated data on the Member Account/User Interface and granting User-defined access options thereto;
(c) Setting up specific Users by providing individual Member Accounts; Members may independently access the data stored in the system at any time;
(d) Optional implementation of Collective Accounts for an interactive exchange of information as well as communication among identified individuals and training groups that are granted authorized access to the Collective Account;
(e) Ongoing operation and actualization of the Product Portfolio as well as generation additional knowledge relevant to secure an optimized service;
(f) Support through the platform "FLOW" of associations and clubs, teams and individual athletes through experienced personnel from global partners (Ultimate Performance, Mind to Muscle etc).
(4) Any services rendered by SimpliFlow on the basis of these GTC (the underlying agreement respectively) exclusively run through the use/integration of the platform "FLOW" by the Member. Non-systematic Services outside the range of the platform "FLOW" provided by any given partner or sub-contractor of SimpliFlow do not fall under this agreement and/or the responsibility/liability of SimpliFlow (see § 8).
(5) Delivery of data carriers, documentations, and function-/performance reports is made at the respective Members'/Counterparty's expense and risk.
(6) Subject to a timely prior notice, SimpliFlow is also entitled to alter, extend or limit its contractual services in a way acceptable for the Counterparty Partner anytime. SimpliFlow take such measures if being induced by technical or legal facts in order to secure functionality of the platform "FLOW".
(7) If contractual provision of services by SimpliFlow turns out to be impossible for legal or factual reasons, the affected Member will be notified without undue delay. SimpliFlow may refuse to render a service or execute an order if performance is impossible due to a default (omissions) or other circumstances attributable to the Member. In this case, any expenses incurred with SimpliFlow in relation to such activities, if any, shall be reimbursed by the Member.
(8) As a pure technical services provider, SimpliFlow is not involved directly or indirectly in the communications of Members.
(9) SimpliFlow hereby expressly refers to the provisions of applicable law with respect to combating illegal working and child labour. Any misconduct of this type shall result in immediate deletion of any Member Account/User Interface which may have been set up.
§ 5 Services/Obligations of Counterparties
(1) The Counterparty hereby undertakes to use the platform "FLOW" and the Products of SimpliFlow in accordance with its purpose and these GTC. In addition, Members are deemed to warrant that they shall use their Member Account/the User Interface in a legally compliant fashion.
(2) The Counterparty is prohibited from using software, data or (technical) devices that could result in an impairment of the functionality of the platform "FLOW", irrespective of its type. The same shall apply with respect to the Members' use of the Member Account/User Interface.
(3) Counterparties shall provide timely notice to SimpliFlow of changes to the system requirements lying within the sphere of such Counterparty. Any delays and additional costs of SimpliFlow which may arise as a result of service adaptions shall be for the account of the Counterparty.
(4) Where necessary, the Counterparty shall timely and free of charge provide all such documents, information and devices as are required for SimpliFlow to render the services requested. A tight cooperation with SimpliFlow also includes the provision of goods and services by third parties where these constitute a prerequisite to contractual services.
(5) Denial to cooperate with SimpliFlow might lead to a delay or a limitation in the quality of SimpliFlow's services. SimpliFlow shall not assume any liability for frustrated expense or damages as a consequence of uncooperative acting.
(6) Members shall immediately communicate to SimpliFlow any changes of their corporate name and address as well as the legal form of their business entity. In the absence of such notification, documents shall be deemed to have been properly delivered if sent to the last address or paying office indicated by that Member.
§ 6 Use of the platform "FLOW"
(1) In the course of registration on the platform "FLOW", each Member shall provide a username in order to facilitate individualised and secure access to the User Interface.
(2) Registration as Member is reserved only for natural persons and legal entities with full legal capacity. Registration of a legal entity may only be undertaken by an authorised representative of the entity to be identified by name.
(3) The access data provided at the time of registration on the platform "FLOW" are to be provided and maintained in a complete and truthful fashion and shall at all times be kept up-to-date.
(4) The Member Account/User Interface is accessible to Members at all times by means of User-defined access features (username). When selecting a username, Users may not use names which breach applicable law, which violate social mores or infringe on the rights of third parties. Furthermore, the username or any E-mail or website address or other contact information such as telephone numbers may not contain either the term "SimpliFlow or any similar designation associable with SimpliFlow or its services including but not limited to the Product Portfolio. The username must be kept secret, except where it is necessary to disclose it to others in order to use the platform "FLOW". This might be the case where individual functions or services on the platform "FLOW" are provided by third parties and registration is necessary to make use thereof. To prevent phishing of access data and misuse of the Member Account/User Interfaces Members being asked to transmit or enter their usernames shall check whether this request is from SimpliFlow or from an authorised third party.
(5) The Member shall remain responsible for the secrecy of his/her username including a proper use thereof. Disposition of different usernames is prohibited provided that such use is not approved by the respective account holder. Authorization to get access to or dispose of an existing account shall occur by nominating so called "Authorised Users". Authorised Users will be assigned to interfaces (Channels) enabling them to access the User-Interface of a particular Member including data and plans (test- as well as trainings protocols) or other information cleared for access by the respective Member. Authorised Users of Collective Accounts may as well access data and information that are cleared for their review by applying a "Login" that has been generated for this purpose. Use of individualized interfaces (Channels) and Collective Accounts shall occur under the sole responsibility of the persons concerned. SimpliFlow shall not bear any responsibility for information and other content communicated through Channels or Collective Accounts or become liable for the misuse of data whatsoever.
(7) Each Member shall notify SimpliFlow immediately of unauthorised use of the platform "FLOW"/of its username as well as any and every other breach of the duties of confidentiality and data security coming to that Member's knowledge.
(8) Use/exploitation of electronic or automated applications (e.g. webcrawler, robots, spiders etc.) is not permitted, irrespective of the configuration or the usefulness thereof.
(9) Members are entitled at any time to terminate the Licence Agreement underlying these GTC by closing their individual Member Account whereby the proper shutdown of an account remains exclusively within the purview of the Member. Upon termination of the contractual relation, any and all data (inter alia consisting of Designs, graphics, images, commentary, communication or other content in that User's member Account/User Interface as of the time of deletion shall be immediately and irrevocably deleted. This shall not include data/information SimpliFlow is legally required to store for a particular period of time. Following termination of the Licence Agreement, SimpliFlow shall be entitled to store data as legally required.
(10) Subject to the express written consent of SimpliFlow, Member Accounts are not transferable.
(11) Where no contractual relationship with a Member arises, all such documents, proposals, test programs, etc as may have already been provided shall be returned or deleted and may no longer be used.
§ 7 Rules for Users
(1) Users are permitted to visit the platform "FLOW" without registering. Users shall have no entitlement to be registered or to have their accounts on the platform "FLOW" activated.
(2) With respect to registration of Users and the use of the platform "FLOW", the access and use requirements / conditions pursuant to § 6 hereof for Members shall apply mutatis mutandis.
§ 8 Liability
(1) SimpliFlow shall bear liability within the scope of applicable tort laws caused by executive officers, employees, vicarious agents or other persons engaged to provide services to counterparties only where behaviour of SimpliFlow or personnel attributable to SimpliFlow is evidenced to be intentional or grossly negligent. Liability for slight negligence is excluded, except for damages to life and limb.
(2) The Parties agree that besides direct contractual services performed by SimpliFlow, provision of Products (from the Product Portfolio) as well as distribution of the Flow-Tag may also be executed by independent third party distributors/agents (e.g. teams, trainer, associations, web-designers, network operators, distributors etc) not deemed vicarious agents and/or independent contractors within the meaning of §§ 1313a or 1315 of the Austrian Civil Code and upon which SimpliFlow is unable to exercise direct control. Liability vis-à-vis Members/Counterparties for losses resulting from actions of independent personnel as described above is explicitly excluded; irrespective whether such losses arise with or without fault.
(3) SimpliFlow shall bear no liability for losses attributable to improper or contractually non– compliant use of the platform "FLOW", single Products or the Member Account/User-Interface. SimpliFlow shall likewise bear no liability for the individual success of a Member applying its Products or in case of bodily injuries or other physical or psychic harm as a result from the use of its Products. No claims shall be raised against SimpliFlow for any interventions in the sphere of a Members' rights by third parties.
(4) Providing services hereunder and granting access to the platform "FLOW" SimpliFlow acts as "Application Service Provider". The operation, hosting, security and further development of the (User) data located in its Member Account/User-Interface shall remain in that Member's sole sphere of responsibility. Accordingly, the Member shall bear sole liability for all such content (the Designs) as it has made available via the platform "FLOW". Any losses and/or disadvantages of the Member as a result of the illegality/infringement of competition law by such content shall be exclusively for that Member's account. Wrongful use of a Member Account/User-Interface may, in addition to potential payment obligations for compensatory damages, result in temporary or permanent blocking of contractual access rights of a Member to its Member Account/User-Interface.
(5) The Counterparties are aware of the fact that the content uploaded to the platform "FLOW" may constitute legally protected Intellectual Property. Against this background, Counterparties are not permitted to upload content to the platform "FLOW" the use of which infringes Intellectual Property rights of third parties (irrespective of the type thereof) and which is apt to give rise to criminal or civil prosecution.
(6) SimpliFlow is unable to generally rule out the possibility that Members registering and/or communicating on the platform "FLOW" do not in fact exist or that they are making improper use of the platform for illegal or immoral actions. Counterparties using the platform "FLOW" and who may upload/download content to or from the Platform are thus deemed to act at their own risk.
(7) SimpliFlow shall not assume any liability whatsoever for unauthorised duplication or use of the graphics, texts, brands and trademarks the rights to which are protected by third parties. In addition, liability of SimpliFlow in connection with the website www.simpliflow.com shall, in each case be limited to its own content. In the absence of relevant controls on the websites of other (sector-specific) businesses, SimpliFlow shall likewise be deemed to have no liability where it makes a corresponding reference (link) from its own website to that of another provider.
(8) Events of force majeure which render the provision of the contractual services significantly more difficult or impossible shall entitle SimpliFlow to defer its performance of the contractual obligations by a period of time equal to the period of the impediment plus a reasonable preparation period. The following events are the equivalent of force majeure: strikes, lock-outs, interventions of public authorities for which SimpliFlow bears no responsibility, and similar circumstances, provided that they are unforeseeable, not susceptible, controllable and not due to default. In such cases, SimpliFlow shall likewise bear no liability.
§ 9 Availability and warranty
(1) The services of SimpliFlow are affected on the basis of generally valid industry sector norms and practises. However, the parties are aware that pursuant to the current state of the art, it is not possible to render web-based services which are completely free of faults or errors.
(2) Irrespective of the foregoing, SimpliFlow hereby warrants that the services offered shall have such features and characteristics as are identified by the Counterparties in advance of their entry into the licence agreement and that they shall comport with the usual state of the art as of that point in time. SimpliFlow does not warrant that it will be able to provide the platform "FLOW" at all times without interruptions and free of faults.
(3) SimpliFlow assumes no liability or warranty whatsoever for the correctness of the data forwarded to it by Counterparties/Members, such as details regarding their identity, addresses, qualifications, references or creditworthiness. Members are thus required to scrutinise such data of other Members/Users as is relevant to them as needed. SimpliFlow shall follow up any notice it receives as to incorrect details and shall request the Member in question, where applicable, to make a correction or shall block/delete the details.
(4) Network outages, disruptions, maintenance work or other events which are unavoidable and for which SimpliFlow bears no responsibility may give rise to interruptions of service. In such case, SimpliFlow shall exert reasonable efforts to the best of its knowledge and ability to eliminate faults and disruptions as quickly as is possible in technical and economic terms.
(5) SimpliFlow assumes no warranty with respect to errors or other outages on the platform "FLOW", the Member Account/User-Interface
(a) based on errors of the hardware, the operating system or software of other manufacturers or wireless telephony providers;
(b) caused by errors of use by the customer, irrespective of the type thereof, and which could have been avoided if proper and careful use had been made;
(c) due to infection with computer viruses or other external influences for which SimpliFlow bears no responsibility, such as fire, accidents, power outages etc.;
(d) on the basis of an unauthorised modification by the Counterparty or third parties to the system environment for which the platform "FLOW" or the Member Account/User-Interface was configured.
(6) Counterparties (however in particular Members) warrant that content uploaded to and communicated by them via the platform "FLOW" shall
(a) be free of rights of third parties, in particular of Intellectual Property rights;
(b) be their own (intellectual) property or be subject to proper authorisation by a third Party with entitlement to give such authorisation to use the content in question via the platform "FLOW";
(c) not breach applicable law or other applicable binding statutes and in addition
(d) not be apt in any manner to give rise to legal obligations (liability) on the part of SimpliFlow.
§ 10 Grant of rights and use
(1) All copyrights and the Intellectual Property on the platform "FLOW" as well as the Products shall remain with SimpliFlow. The foregoing shall also apply to all content and information uploaded to the platform "FLOW" (e.g. documents, proposals, texts, graphics, photos, trademarks, test programs, etc.) in each case in such form as was valid at the time the contract was concluded. Excepted from the foregoing, however, shall be all content uploaded by Members or other Users, to which SimpliFlow shall be deemed granted contractual rights of use (see § 12).
(2) All specifications, further developments and modifications of the platform "FLOW" resulting from contractual relationship with the Counterparty/Member shall, at such time as they arise, transfer to SimpliFlow. The foregoing shall also be deemed to include all such rights as may arise world-wide as a result of provisions of copyright or other Intellectual Property law.
(3) SimpliFlow grants the Counterparties/Members a non-exclusive permit to use the platform "FLOW", which is non-transferable and subject to limitations in content and in time. In addition, Members are granted a right of use to the interfaces associated with the platform "FLOW" (in particular to the Member Account/User-Interface).
(4) Counterparties are not entitled to process, alter or otherwise model the platform "FLOW" or the Member Account/User-Interface provided to them individually, or to disclose them to third parties, to link them to other programs in any manner other than via the interfaces intended for this purpose, to translate it to another display format (decompile), to remove, circumvent or alter any copy protection or other protective mechanisms, program elements intended to support digital rights management (DRM) security codes or features or characteristics intended to identify the platform "FLOW" / the User-Interfaces (ownership notices, trademarks, copyright registers).
§ 11 Compensation, terms of payment
(1) Pricing of SimpliFlow is based on customary calculations and refers to the scope of services, the Product Portfolio in particular, requested by a Counterparty/Member.
(2) Based on the daily rates, as amended from time to time and announced by SimpliFlow, the following surcharges shall be charged for services (e.g. error analyses) provided outside ordinary business hours: surcharge of 50 % outside ordinary business hours and 100 % on Sundays and public holidays. "Ordinary business hours" within the meaning of this provision are: Monday through Friday, 9 a.m. – 5 p.m.
(3) All prices are denominated in US dollars exclusive of value added tax. Shipping/Delivery costs, if any, shall be charged separately and apply only to the present contract.
(4) As a rule, fees are payable after receipt of the invoice on the due date indicated in the invoice or, in the absence of a due date, within seven calendar days after receipt of the invoice by the Member. The invoiced amount shall be credited to the bank account indicated in the invoice on the due date, at the latest. Use of Products shall be conditional upon settlement of open accounts with SimpliFlow; latter may retain provision of Services until payment has been received.
(5) Payment shall be deemed received on the date the amount is available to SimpliFlow or credited to the bank account indicated in the invoice. In case of delayed payment by the Member, SimpliFlow shall charge legal default interest as of the 15th day after the invoice date, unless costs in excess thereof have been incurred. Dunning, enquiry and other costs incurred in the context of recovering a claim shall be borne by the Member. This shall not restrict SimpliFlow to assert any further damages if applicable.
(6) If, due to external inquiries, the financial standing of a Member indicates insolvency risks that are not covered by adequate insurance, SimpliFlow shall have the right to claim down payment for services rendered to the Member subject to the public pricing schedule (www.simpliflow.com/pricing).
(7) The Member shall pay the fees by bank transfer with a payment slip or by electronic bank transfer (online banking) or grant SimpliFlow authorisation to directly debit fees. The Customer shall bear all expenses arising in connection with payment transactions.
(8) The Member waives its right to set off any counterclaims against compensation claims, unless these counterclaims have been acknowledged by SimpliFlow in writing or determined by a court. Moreover, the Member may not withhold payments on the grounds of incomplete total delivery, guarantee or warranty claims or complaints.
(9) All tax liabilities arising from or pertaining to payments to SimpliFlow, except income tax, shall be borne solely by the Member. The Customer shall hold harmless and indemnify SimpliFlow for any wrongful assertion of such tax claims.
(10) Refund policy for credit card transactions If you change your plan and your charge is greater than the credit (plus your current balance), you will be charged the difference. If the credit is greater than the charge, then you will have a credit on your account that will be applied to your next renewal charge. If you cancel your account / or your subscription you won't be billed again, but you are responsible for whatever charges have already been incurred for the current billing period.
§ 12 Data Protection
(1) Under certain circumstances, it may be necessary in order to enable SimpliFlow to properly perform its contractual services to store and process Members' personal data. SimpliFlow shall ensure that these data are treated in confidence pursuant to the provisions of the Austrian Data Protection Act 2000 ("DSG 2000").
(2) SimpliFlow hereby alerts Counterparties that there is no assurance of confidentiality with respect to data, information etc. transmitted in unencoded format via the Internet.
(3) The Member shall bear sole responsibility for any and all personal data transferred, used or processed in the course of the use of the platform "FLOW" whether these data are sensitive data within the meaning of § 4 DSG 2000 or are non-sensitive data.
(4) Members shall procure the consent of the affected individuals prior to editing or processing (personal) data and shall indemnify and hold SimpliFlow harmless in the event of any breach against any potential claims of third parties.
§ 13 Communication
(1) Any and all notices relating to the licensor/licensee relationship on the basis of these GTC must be provided in written or electronic (e-mail) form. Contact information for Counterparties may be found on the website www.simpliflow.com. The information entered in the Member Account/User-Interface shall be deemed the Member's contact information. Notices sent by SimpliFlow to these contact details by E-mail shall be deemed to have been received at the time they were dispatched, notices sent by post shall be deemed to have been received two days from the time they were dispatched, except where the Member furnishes proof that it received them at a later point in time.
(2) Where notices are transmitted as between SimpliFlow and a Member or between Members inter se by E-mail and thus in electronic form, the Member is deemed to acknowledge the unrestricted effectiveness of statements of intent transmitted by this means. The e-mail must contain the name and e-mail address of the sender as well as the time of dispatch (date and time).
(3) Any e-mail received pursuant to the foregoing provisions shall, subject to proof of the contrary, be deemed to originate from the owner of the address of the sender. The legally binding effect of the e-mail and that of its electronic form shall apply with respect to all notices and declarations attendant on the usual performance of contract.
§ 14 Prohibition on assignment
The transfer of the Licence Agreement and the assignment of rights and delegation of obligations under the Licence Agreement by the Counterparties are not permitted without a written consent of SimpliFlow.
§ 15 Term
Subject to any agreement to the contrary, the parties' contractual relationship is being made for an unlimited period and may be terminated by either Party at any time in writing (by fax or e-mail). With respect to the date of termination, the postmark shall be deemed determinative.
§ 16 Final provisions
(1) This Agreement is governed by Austrian law. The parties hereby agree that the United Nations CISG shall have no application.
(2) To the extent permitted by law, the parties hereby agree that jurisdiction and venue for all disputes resulting out of this Agreement (including disputes in connection with potential modifications or addenda to contract) shall lie with the court located within the 1st Vienna Municipal District with subject-matter jurisdiction thereof.
(3) No amendments or addenda to these GTC or any other agreements of the parties shall be valid unless they are confirmed by SimpliFlow in writing.
(4) If any term of these GTC should be or become invalid or unenforceable, the validity or enforceability of the remaining provisions hereof shall not be affected hereby. The invalid or unenforceable provision shall be deemed replaced by a valid and enforceable provision, the commercial purpose and commercial outcome of which shall come as close as possible to the provision being replaced and which shall comport with the original intent. The parties hereby undertake to memorialise this replacement term without delay in writing and to execute the same.