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General Terms and Conditions of fynk GmbH

Last update: July 2023

Preamble

fynk GmbH, Heinrichsgasse 2/1/8, 1010 Vienna (hereinafter: “fynk”), offers web-based software for the creation, signing and management of contracts under the brand fynk via the URL https://www.fynk.com/ (hereinafter: “Website”), (hereinafter: “Software”). The offer is directed exclusively to entrepreneurs, not to consumers. The following terms and conditions govern the relationship between fynk and the customer.

Subject matter of contract

  1. These terms and conditions apply to the use of the software, as presented on the website, by the customer. As far as third party offers are included, this is recognizable to the customer on the website.
  2. The software is operated by fynk as a web-based cloud solution. The customer is enabled to use the software stored and running on the servers of fynk or a service provider contracted by fynk via an internet connection during the term of this contract for his own purposes and to store and process his data with its help.
  3. These terms of contract apply exclusively. Contractual terms and conditions of the customer shall not apply. Counter-confirmations of the customer with reference to his own terms and conditions are expressly rejected.

Registration, Conclusion of the User Agreement

  1. To use fynk, the customer must register on https://www.fynk.com/ and open a company account (hereinafter “Account”). The opening of an Account may only be done by an authorized representative or authorized employee of the customer. The required data must be provided truthfully and updated immediately in the event of changes in order to ensure smooth use.
  2. The customer has the right to revoke the authorization of a user or to name another person as a substitute for the user. The authorization of the substitute person is done by entering it in an input mask in fynk.
  3. Fynk assumes no responsibility for the content, data and / or information provided by the customer, as well as for content on linked external websites. In particular, Fynk does not warrant that such content is true, has a specific purpose or can serve such a purpose.
  4. The customer must book an appropriate number of user access and contracts. The authorization of users is done by entering them in an input mask in fynk. The customer designates one or more users as administrator(s) of the account, who are provided with full access to all setting options and administrative areas. The exact scope of the use of fynk results from the functional description on the website as well as further contractual agreements with fynk (for example, from the service description of an offer).
  5. In the event of non-use of the booked scope of services during the contract period, there is no right to reimbursement, reduction of the price or extension of access beyond the respective contract period.
  6. The customer has the option of booking additional product items (e.g. additional users, contracts or functions) within the contract term. The terms of the additional product items shall be proportionate to the basic contract.

Type and scope of service

  1. Fynk shall make the Software available to Customer for use in its current version at the router exit of the data center where the server with the Software is located (“Delivery Point”). The Software, the computing power required for its use and the required storage and data processing space are provided by Fynk. However, Fynk does not owe the establishment and maintenance of the data connection between Customer’s IT systems and the described Delivery Point.
  2. Fynk offers its software in various expansion stages, which can be continuously developed by fynk. The scope of use depends on the service booked. Fynk is entitled to make individual features of the Software unavailable for certain types of use or to restrict the use of the Software if it is not used by more than 90% of the customers.

Type and Scope of Service

  1. Fynk shall make the Software available to Customer for use in its current version at the router exit of the data center in which the server with the Software is located (“Delivery Point”). The Software, the computing power required for its use and the required storage and data processing space are provided by Fynk. However, Fynk does not owe the establishment and maintenance of the data connection between Customer’s IT systems and the described Delivery Point.
  2. Fynk offers its software in various expansion stages, which can be continuously developed by fynk. The scope of use depends on the service booked. Fynk is entitled to make individual features of the Software unavailable for certain types of use or to restrict the use of the Software if it is not used by more than 90% of the customers.

Availability of the Software

  1. Fynk is generally available 24 hours a day, 7 days a week. fynk guarantees an annual average availability time of 99%. Scheduled maintenance according to clause 4 (2) is excluded.
  2. Fynk is entitled to perform maintenance activities on weekdays in the period from 20:00 to 06:00 CET/CEST and on holidays and weekends from 00:00 to 24:00 (hereinafter: “Maintenance Window”) for a total of ten (10) hours per calendar month. Activities during the Maintenance Window will be announced to Customer in advance with reasonable notice. Fynk is entitled to postpone or extend the Maintenance Window in exceptional cases to eliminate or prevent serious disruptions. During maintenance, fynk may not be available or may have limited availability. If maintenance has to be performed outside the maintenance window, this will not affect the overall availability of 99% based on the calendar year.
  3. Fynk draws the customer’s attention to the fact that restrictions or impairments in the use of the software may arise that are beyond the control of fynk. This includes in particular actions of third parties not acting on behalf of Fynk, technical conditions of the Internet beyond Fynk’s control and force majeure. The hardware, software and technical infrastructure used by the customer may also have an influence on the usability of the software. If such circumstances affect the availability or functionality of the software, this does not constitute a breach of contract by Fynk. 4.
  4. In order to enable the most efficient troubleshooting possible, the customer has to report functional failures, malfunctions or impairments of the software immediately and as precisely as possible by e-mail to [email protected].
  5. Fynk shall process fault reports, except on holidays, Monday through Friday between 9:00 a.m. and 5:00 p.m.

Rights to data processing, data backup, order processing

  1. Fynk complies with the statutory data protection provisions.
  2. The customer grants fynk the right, for the purpose of executing the contract, to reproduce the data to be stored by fynk for the customer, to the extent necessary for the use of the software. Fynk is also entitled to keep the data in a failover system or separate failover data center. In order to eliminate malfunctions, fynk is also entitled to make changes to the structure of the data or the data format.
  3. Fynk sends newsletters to existing customers at irregular intervals. These newsletters will contain information about the product and how to use it better, as well as information about product innovations and changes. Occasionally, new partners, industry information and other news will also be introduced.
  4. Fynk is constantly developing its product. In some cases, when introducing new components, fynk analyzes who would benefit most from new product features based on the business model and behavior of its customers and targets those customers.
  5. If and to the extent that the customer processes or allows to be processed personal data on IT systems for which fynk is technically responsible, the customer shall inform its users accordingly. Fynk provides all information on the collection, processing and storage of personal data by its systems in the privacy policy: https://fynk.com/de/datenschutzerklaerung/
  6. Insofar as fynk acts as a processor for the customer within the meaning of Art. 28 DSGVO, the provisions on commissioned data processing of fynk apply. The provisions shall also apply without being signed separately by both parties, solely by entering into a contract pursuant to Section 2 of these General Terms and Conditions.
  7. The customer grants fynk the right to use the customer’s company logo as a reference customer within the scope of its commercial activities. This consent can be revoked at any time. The revocation must be made in writing (with company signature). Should it be technically and/or practically impossible to undo any already made publications (e.g., already published in print media, etc.) after receipt of the revocation statement, no claims can be derived from this by the customer.

Remuneration

  1. Fynk’s remuneration consists of a monthly or annual basic fee. The basic fees listed at the conclusion of the contract at https://fynk.com/ or in the signed offer apply.
  2. Any agreed test phase ends automatically after 14 days. There will be no automatic extension to another tariff. The contractual relationship shall therefore end automatically unless a subsequent tariff is agreed. However, it is also possible to change to another tariff before the 14 days have expired. 3.
  3. Additional fees may be incurred for third-party services used by the customer, which may be billed directly by the respective provider. This may include, for example, fees for online payment services.
  4. Fynk reserves the right to change the prices at the end of the respective contract period (initial term or renewal term). The customer will be informed of this by email at least 2 weeks before the end of the contract period.

Contract Term & Renewal, Termination and Price Adjustment

  1. The contract for the use of fynk is concluded for the term agreed in the offer or framework agreement. The contractual relationship between fynk and the customer is extended, for each contractual term of more than two months, each time the term expires by one year. If the contractual term is two months or less, the contract is extended at the end of each term by one month. The following regulations apply with regard to termination of the contract:
    1. Contractual relationships with a total term of more than three months, may be terminated by either party by declaration in writing and with a notice period of three months to the end of the respective contractual term. In the case of a contractual term of up to three months, the period of notice for termination at the end of the respective contractual term shall be 1 month.
    2. If this function is provided, the contractual relationship can also be effectively terminated via the customer’s account. 3.
    3. The right to extraordinary termination for cause, including termination without notice, remains unaffected. 2.
  2. Fynk is entitled to terminate for cause in particular if:
    1. the use of the services by the customer violates the law and/or the rights of third parties; or
    2. the customer violates other material contractual provisions.
  3. In the event of termination, the customer may, within a period of three months after the expiry of the contract period, have his contracts imported and created in fynk exported in an electronic and machine-readable format.
  4. In case of termination, fynk is entitled to deactivate the customer’s account and profile, the customer’s users, as well as the customer’s fynk access, after the expiration of the agreed term of the contractual relationship. Along with this, existing contracts in fynk will also be deleted. In the event of termination for cause, fynk is entitled to carry out the deactivation immediately.
  5. All notices of termination must be in writing to be effective.
  6. In case of a contract extension, the price is calculated according to the list price valid at the time of the extension, a claim for extension of any granted quantity or other discount based on the extending product items (e.g. users) does not exist. If a basic contract is extended, where within the contract period further product items (e.g. by additional purchases) were booked by the customer, the total quota is automatically extended by the contract period booked in the basic contract. Fynk reserves the right to change list prices and the resulting fee with effect from the next renewal period. Fynk will notify the customer of any such change by means of the invoice sent to the customer for the renewal period. In the event of a price increase, the customer has the right to withdraw from the contract within four weeks from the date of the invoice by submitting a written declaration to fynk with retroactive effect to the date of the extension. The discontinuation of granted discounts at the time of the contract extension is not a price increase and does not grant a special right of termination.

Liability of fynk

  1. Fynk is liable without limitation for damages resulting from intentional or grossly negligent acts, as well as for damages resulting from slightly negligent breaches of essential contractual obligations. Essential contractual obligations are those obligations whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the customer may regularly rely.
  2. Fynk is not liable for slightly negligent breach of minor contractual obligations.
  3. Fynk’s liability for personal injury and under the Product Liability Act and a statutory warranty liability remain unaffected in any case.
  4. The above limitations of liability also apply to breaches of duty by legal representatives or agents of fynk.
  5. The customer indemnifies fynk from all claims, including claims for reimbursement of expenses and claims for damages, which other users of fynk or other third parties, including public authorities, assert against fynk due to an infringement of their rights by the content published by the customer on fynk. The customer shall bear all reasonable costs, including reasonable costs incurred for legal defense, incurred by fynk due to an infringement of third party rights by the customer. All further rights as well as claims for damages of fynk remain unaffected.

Confidentiality

  1. The Parties are obliged to keep permanently secret, not to disclose to third parties, record or otherwise use all information about the other Party which has become known or is becoming known to them in connection with this Agreement and which is marked as confidential or is identifiable as business and trade secrets on the basis of other circumstances (hereinafter referred to as “Confidential Information”), unless the other Party has expressly consented in writing to the disclosure or use or the information is required to be disclosed by law, court decision or administrative decision.
  2. The information is not confidential information within the meaning of this clause if it was
    • was already previously known to the other party without the information being subject to a confidentiality obligation,
    • is generally known or becomes known without breach of the confidentiality obligations assumed,
    • is disclosed to the other party by a third party without breach of a confidentiality obligation. 3.
  3. The obligations of confidentiality shall survive the termination of this Agreement.

Closing Provisions

  1. If the customer as recipient of services has its registered office outside of Austria, the customer shall disclose its VAT identification number immediately after conclusion of the agreement. The customer is the debtor of the sales tax by reversal of the tax liability (reverse charge procedure) and has to account for the service in terms of the sales tax in the reverse charge procedure itself.
  2. Austrian law shall apply to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods.
  3. Jurisdiction for all disputes arising from the contractual relationship between fynk and the customer is Vienna. Fynk also has the right to take disputes to the court of competent jurisdiction at the seat of the customer. Should any provision of these terms and conditions be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The parties undertake to replace the invalid provision with a new, valid provision that comes as close as possible to the meaning and purpose of the invalid provision. The same applies to loopholes in these GTC.