Attention: This version of GrowthSquare’s GTC is a non-binding translation of the German original of the GTC and is intended for information purposes only. In case of doubt, the original German version of the GTC shall take precedence over this translation.
|I. General & Applicability of these GTC
|These General Terms and Conditions of Business and Use (the “GTC“) of GrowthSquare GmbH, FN 540440 s (Landesgericht Salzburg), with its business address in A-5550 Radstadt, Salzburger Strasse 24a (“GrowthSquare“, “we” or “us“) apply to the utilization and the use of all Services offered by GrowthSquare by the Customer (the “Customer” or “you“) and to all contracts concluded between the Customer and GrowthSquare, even if no express reference is made to these GTC in these contracts or in the offers on which these contracts are based. Unless expressly agreed otherwise in individual cases, the GTC apply exclusively and GrowthSquare does not recognize and hereby expressly rejects any deviating terms and conditions. Our silence or any acts of fulfillment on our part shall not be deemed as consent to any deviating terms and conditions.
|II. Conclusion of contract & professional status of the customer
|1. A contractual relationship between GrowthSquare and the Customer is established by the Customer’s acceptance of these GTC. Acceptance takes place either by signing an offer sent to the Customer or by way of an online registration process by ticking a box or clicking a button, by which the Customer expressly declares that he has taken note of and unconditionally agrees to these GTC, but at the latest by the actual use or utilization of individual Services by the Customer (the “Date of Conclusion of the Contract“). Unless expressly stated otherwise, offers from GrowthSquare and information provided to the Customer in the online registration process are always to be regarded as subject to change and non-binding until the order is confirmed in text form by GrowthSquare (the “Order Confirmation“).
2. All Services offered by GrowthSquare are intended exclusively for businesses (Unternehmer) within the meaning of the Austrian Commercial Code (UGB). The provisions of the Austrian Consumer Protection Act (KSchG) and the Distance and Off-Premises Transactions Act (FAGG) are therefore not applicable to the contractual relationship between GrowthSquare and the Customer.
|III. Services, changes & change requests
|1. GrowthSquare offers Customers cloud-based Software-as-a-Service (SaaS) and associated coaching services (together the “Services“). The specific content and scope as well as place and time (period) of the provision of individual Services are set out in the offer or in the online registration process. Unless expressly stated otherwise in the offer or in the online registration process or expressly agreed otherwise in individual cases, all Services are provided at GrowthSquare’s registered office (place of performance). All deadlines and dates in offers etc. are only estimations and may depend on subcontractors or the fulfillment of the Customer’s obligations to cooperate.
2. GrowthSquare reserves the right to further develop (subsequently change) SaaS at any time and the Customer agrees to such changes in advance, provided that the entirety of the contractually agreed SaaS is not significantly reduced or rendered completely unusable as a result.
3. The Customer can suggest useful improvements to the SaaS or changes or additions to the Services at any time (the “Change Request“). GrowthSquare is not obliged to implement such Change Requests but will examine them within a reasonable period and submit an offer to the Customer to implement them or reject the implementation.
4. By accepting an offer to implement a Change Request, the Customer transfers to GrowthSquare, free of charge, all intellectual property rights to which it may be entitled under patent, trademark, design, semiconductor protection and copyright law in connection with the Change Request and undertakes to ensure that these are transferred free of charge by its employees, executive bodies, consultants or other third parties involved, insofar as this is necessary for its implementation and subsequent commercial exploitation by GrowthSquare, and GrowthSquare hereby accepts this transfer. Furthermore, the Customer expressly waives any application for industrial property rights (including but not limited to the application for or registration of patents, trademarks and designs) and transfers these rights to GrowthSquare free of charge. Insofar as a (complete) transfer in the above-mentioned sense is not possible for legal reasons, the Customer hereby grants GrowthSquare, free of charge and with legal effect for itself and its legal successors, an irrevocable, exclusive (also excluding the Customer itself or other entitled person or holder of rights), transferable and sublicensable right of use to these intellectual property rights, unlimited in terms of time, territory and content, and waives – insofar as legally permissible – any share or participation in them (including but not limited to the application for or registration of patents, trademarks and designs) and undertakes to ensure that these are granted free of charge and that any share or participation in them is waived by its employees, executive bodies, consultants or other third parties involved, and GrowthSquare hereby accepts the granting of these rights and the waiver thereof. Claims by employees of the Customer for the transfer of inventions made by them within the meaning of §§ 6 et seq Austrian Patent Act 1970 (PatG) or for the granting of rights of use in respect of such inventions remain unaffected; such employees’ inventions must be notified to GrowthSquare immediately and offered for use; in the event that GrowthSquare declares the use of such employees’ inventions, GrowthSquare will agree an appropriate special remuneration within the meaning of § 8 PatG with the Customer’s employees separately.
5. GrowthSquare shall be exclusively entitled to all rights to all work results produced in the course of implementation. In particular, GrowthSquare reserves the right to further develop, use and exploit these work results at its own discretion and for its own purposes, in particular to license these work results and their further developments to third parties and to register industrial property rights for them. The fee paid by the Customer for the implementation of a Change Request does not represent a purchase price, but merely a priority fee in the sense of a compensation for the prioritization of the development by GrowthSquare and, unless expressly agreed otherwise, the Customer is only granted a non-exclusive, non-sublicensable and non-transferable right to use these work results for the duration of the current contractual relationship in accordance with the provisions of these GTC. In particular, the Customer shall, by its contribution in the course of the submission and implementation of a Change Request, not acquire any rights to SaaS beyond the rights of use defined in Section IX.
|IV. System requirements & obligations to cooperate
|1. In order to access the SaaS, the Customer requires the necessary hardware and software, including an internet connection and internet-enabled end devices; these are not part of the Services and must be provided by the Customer at its own expense. In order for GrowthSquare to provide SaaS in full and free of defects, the Customer must ensure an internet connection with a data transfer rate of at least 768 kBit/s (downstream) and the use of the latest version of the Chrome, Edge or Firefox web browser published by the manufacturer.
2. The Customer shall provide GrowthSquare with all information and data necessary or useful for the provision of Services free of charge and without separate request, always in good time or immediately after becoming aware of it.
3. The Customer shall name a central contact person to GrowthSquare for all communication in connection with the provision of Services and for the receipt and possible discussion of the Services.
4. The Customer is liable for and must take appropriate organizational measures to ensure that user IDs assigned to it or created by it which allow access to SaaS are used exclusively by a single authorized employee and that the access data is not passed on to other employees or third parties, and that end devices used to access the SaaS are operated with an operating system supported by the respective manufacturer and are protected against attacks and compromise by virus protection and other prevention programs in accordance with the current state of the art.
5. The Customer must inform GrowthSquare immediately via the contact form provided in the GrowthSquare Support Center of any disruptions to availability or other defects of SaaS or of individual Services based on them as soon as it becomes aware of them.
|V. Fees & payment conditions
|1. As consideration for the Services, the Customer owes the fees agreed in the offer or in the online registration process. Unless expressly stated otherwise, all prices are net (i.e. plus statutory VAT and any other taxes and fees) and in euros.
2. Unless expressly stated otherwise, 50% of down payments and one-off payments as well as lump sums are due for payment immediately on the Date of Conclusion of the Contract and another 50% immediately after complete provision of the Services. Bonus payments are due on the agreed date. Variable costs or expense-related fee components are invoiced monthly in arrears on the basis of the agreed price per unit or hourly rate. If the Customer requests the provision of coaching services at a location other than GrowthSquare’s registered office, GrowthSquare must be reimbursed for the associated costs and cash expenses (including reasonable travel and accommodation costs) on presentation of appropriate receipts.
3. All prices shall be adjusted annually, but for the first time no earlier than twelve (12) months after the Date of Conclusion of the Contract. Price adjustments shall be made on an annual basis to the extent that corresponds to the change in the consumer price index 2020 (VPI 2020) published by the Austrian Federal Statistical Office (Statistik Austria). The index figures published for the month of February of the current and previous calendar year are used as the basis for the calculation. If the above-mentioned index is no longer published, another comparable index, as determined by Statistik Austria or its legal successor or a similar institution, shall be used. Price increases that exceed the extent agreed above must be announced to the Customer in text form at least three (3) months in advance. In this case, the Customer has an extraordinary right of termination within this advance notice period with regard to the Services affected by such price increase.
4. Invoices are provided to the Customer exclusively in electronic form by e-mail and the Customer expressly agrees to electronic invoicing. Unless expressly stated otherwise, all invoices are due for payment within 14 (fourteen) days of delivery without deductions by bank transfer to the account stated in the invoice, whereby, in case of doubt, the invoice date shall be deemed the date of delivery. Any objections to invoices must be asserted within the same 14 days’ period, otherwise claims shall be forfeited.
5. In the event of late payment, the Customer owes interest on arrears of 6% p.a. plus the costs of the debt collection agency. In addition, GrowthSquare is entitled to withdraw from the contract and to discontinue all Services immediately in the event of a qualified delay in payment (i.e. a delay in payment that continues despite a single reminder including a reasonable grace period).
6. The Customer is only entitled to offset against such counterclaims whose legitimacy has been expressly recognized by GrowthSquare in writing or has been legally established by a court of law. Any right of retention of the Customer to the contractually owed remuneration is excluded.
|1. GrowthSquare warrants in accordance with the general statutory provisions that the Services correspond to the service description and are free from defects which would more than insignificantly restrict or cancel the intended use; however, this is subject to the following restrictions:
2. The Services are conclusively described in these GTC and the offer or the information provided in the online registration process and the Customer cannot derive any claims, performance promises, guarantees or other rights from any other information, whether on websites, in printed brochures or other product and advertising documents.
3. With regard to coaching services, GrowthSquare only owes an effort and makes no guarantees or promises of success and assumes no liability for a specific success; in particular, GrowthSquare does not guarantee the technical or organizational feasibility or a specific economic success of recommended measures. Documents and samples of any kind made available to the Customer serve only as illustrative material and do not claim to be correct or complete.
4. With regard to SaaS, GrowthSquare strives for continuous, uninterrupted operation, but cannot guarantee uninterrupted availability at all times according to the current state of technology. Interruptions to availability can result in particular from planned or unplanned updates or maintenance work as well as from disruptions to the IT infrastructure of GrowthSquare or its subcontractors. In order to protect against data loss and to ensure that data can be accessed at all times or that data is available without interruption, the Customer is obliged to back up (export) all data processed via the SaaS on an ongoing basis; GrowthSquare accepts no liability for the temporary unavailability or permanent loss of data.
5. Defects within the meaning of the warranty must be reported by the Customer immediately via the contact form provided in the GrowthSquare Support Center and will be corrected by GrowthSquare within a reasonable period of time.
6. Planned updates or maintenance work as well as any errors, malfunctions, failures or damage to software or hardware the cause of which lies outside the sphere or control of GrowthSquare, in particular Force Majeure, as well as any errors, malfunctions, failures or damage to software or hardware, the cause of which lies within the sphere of the Customer or third parties attributable to the Customer, in particular non-compliance with the instructions for use, operation or use of incompatible interfaces or parameters, as well as any action taken by the Customer or third parties attributable to the Customer, shall not be deemed to be a defect within the meaning of the warranty.
7. Warranty claims or other claims out of any performance failure expire within six (6) months from the provision of the Service; the burden of proof for the existence of a defect always lies with the party invoking it; § 1298 ABGB is expressly excluded.
|1. GrowthSquare is only liable for direct damages caused intentionally (Vorsatz) or by gross negligence (Grobe Fahrlässigkeit) which are typically foreseeable in connection with such a contract, so that there is no liability in particular for slight negligence (Leichte Fahrlässigkeit) and for indirect damages, consequential damages, pure financial losses, in particular loss of profit, turnover, goodwill or omitted savings.
2. If GrowthSquare is liable in accordance with the above paragraph, the liability is limited per each case of damage to either a) EUR 10,000.00 or b) the sum of the net fees paid by the Customer in the past twelve (12) months in accordance with Section V, whereby the higher amount applies. A single case of damage shall be deemed to be the sum of all claims of all claimants arising from a single or several actions that are factually or legally related to each other.
3. The afore-mentioned limitations of liability do not apply to personal injury or damage within the meaning of the Product Liability Act.
4. GrowthSquare shall not be liable for delay, non-performance or improper performance of agreed Services and any resulting damages if these occur as a result of an event beyond GrowthSquare’s reasonable control, in particular natural disasters, extreme weather conditions, floods, lightning, explosions, fire, epidemics, pandemics, riots, war or military operations, national or local emergencies, acts of government, import, export or transit bans, economic disputes or sanctions of any kind, strikes, lockouts or other industrial action, cave-ins, disruption to transport, electricity or communication systems or networks, disruption to third party systems or equipment, and any willful or negligent act or omission of any person or entity beyond GrowthSquare’s reasonable control, including non-performance or poor performance by subcontractors or suppliers (the “Force Majeure“).
5. Claims for damages expire within twelve (12) months from their discovery; the burden of proof for the existence of damage and fault always lies with the party invoking it; § 1298 ABGB is expressly excluded.
6. Insofar as GrowthSquare’s liability is excluded or limited in accordance with the above provisions, this also applies to its personally liable bodies and employees.
|GrowthSquare is entitled to use one or more subcontractors to provide individual or all Services. Even in this case, GrowthSquare remains directly responsible to the Customer for performance of the contract.
|IX. Intellectual property rights
|1. GrowthSquare or its licensors are entitled to all rights to the Services, in particular all intellectual property rights which may be derived from patent, trademark, design, semiconductor protection or copyright law, including rights or legal claims to or from patents, patent applications, trademarks, trademark applications, designs, trademarks, copyrighted works, algorithms, software (in any form, whether as source code or executable code), protocols, configurations, specifications, architectures, circuit diagrams, (programme- or programming-) interfaces, databases, data collections, diagrams, URLs, websites, inventions, devices, methods and processes (whether patentable or not), know-how, trade or business secrets or other proprietary or confidential information.
2. Unless expressly agreed otherwise, the Customer is only granted a non-exclusive, non-sublicensable and non-transferable right, limited in time to the duration of the contractual relationship, to use the SaaS in accordance with the provisions of these GTC. The Customer does not acquire any intellectual property or other rights to the Services beyond the mere right to use such SaaS and is also not authorised to transfer or license its right of use to third parties or to grant third parties access to it in any way (e.g. by passing on or transferring access data).
3. With regard to the Services, the Customer is not authorised (i) to transfer or make them available to third parties, (ii) to produce derivative works from them, (iii) to copy them in part or in full, (iv) to reverse engineer them with the aim of developing competing products or to make changes or further developments itself or have them made by third parties.
|X. Confidentiality, naming of reference customers & data protection
|1. GrowthSquare and the Customer are aware that the information and data exchanged in the context of the initiation or fulfillment of the contractual relationship may under certain circumstances be sensitive or constitute a business or trade secret (the “Confidential Information“) of the disclosing contracting party.
2. Confidential Information within the meaning of this provision is deemed to be all information which, from an objective point of view, would normally be regarded as such among reasonable business persons, irrespective of whether such information is marked as secret or confidential or in what way and via what media it is disclosed or becomes known to the receiving party or in what this information is embodied; this applies in particular to all data and information relating to the Services, including (access data to) SaaS, as well as to all related know-how.
3. GrowthSquare and the Customer therefore undertake to use all Confidential Information disclosed or made known to them in the course of the initiation or fulfillment of the contractual relationship exclusively for the purpose of the mutual fulfillment of the contract and to otherwise keep Confidential Information secret and to not pass it on to third parties, unless it is demonstrably a) publicly known, b) attributable to the current state of the art or c) to be disclosed by order of a court or a competent state authority. This obligation shall apply for the duration of the contractual relationship and for another three (3) years after its termination for any reason whatsoever.
4. If a separate confidentiality agreement (the “NDA“) has been concluded between GrowthSquare and the Customer, the provisions of the NDA shall apply.
5. Unless expressly agreed otherwise, neither the above paragraphs nor any NDA concluded between GrowthSquare and the Customer are to be interpreted in such a way that confidentiality had also been agreed regarding the mere existence of a business relationship. The Customer therefore declares it’s consent, revocable at any time, to be named by GrowthSquare as a business partner (reference customer) for marketing purposes, using the Customer’s name (company name and logo) together with it’s registered office and area of activity. This permission is limited in time to the duration of the existence of a business relationship between GrowthSquare and the Customer but is otherwise unlimited in terms of both territory and content. It extends in particular but not limited to any form of media reporting, press release, publication of text, image, audio or video recordings by whatever means, articles in own or third-party printed works, reporting or commentary in social media, on homepages and the like.
6. Information on the processing of personal data by GrowthSquare is provided via the Privacy Notice on our website. Insofar as personal data is processed by GrowthSquare on behalf of the Customer as part of the intended use of the SaaS, this is done for the purpose of fulfilling the contractual relationship and on the basis of the applicable data protection regulations, in particular in accordance with the European General Data Protection Regulation (GDPR) and on the basis of the Data Processing Agreement (DPA) concluded between GrowthSquare and the Customer, which forms an integral part of these GTC and comes into force at the same time as these, without the need for a separate declaration.
|XI. Contract duration & termination
|1. The contractual relationship between GrowthSquare and the Customer begins on the Date of Conclusion of the Contract (as defined in Section II). Any minimum contract terms and termination rights are set out in the offer or the information provided in the online registration process. Unless expressly stated otherwise in the offer or in the online registration process or expressly agreed otherwise in individual cases, with regard to SaaS a twelve (12)-month minimum contract term and a three (3)-month notice period to the end of a calendar year shall be deemed agreed for both parties.
2. The right of either party to terminate the contractual relationship at any time for good cause with immediate effect shall remain unaffected.
|XII. Final clauses
|1. These GTC and the contractual relationship between GrowthSquare and the Customer are subject to Austrian substantive law excluding its conflict of law rules and the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for all disputes arising from or in connection with these GTC or the contractual relationship between GrowthSquare and the Customer, including disputes regarding their applicability, validity or conclusion, is the registered office of GrowthSquare.
2. These GTC and the offer or the information provided in the online registration process contain all agreements existing between GrowthSquare and the Customer in relation to the contractual relationship. There are no verbal collateral agreements. Special agreements (amendments or additions to these GTC) must be made in text form without exception; the same applies to all notifications and declarations (e.g. terminations, notices of defects, setting deadlines, approvals, objections to invoices, waivers, etc.) of a party in connection with the contractual relationship. Offers can be signed by the Customer in handwritten or qualified digital form as well as in simple electronic form, and offers signed in this way can be sent by post or by e-mail.
3. GrowthSquare reserves the right to transfer the contractual relationship with the Customer or individual rights and obligations arising therefrom to affiliated companies and – in particular in the context of a sale of the company or parts thereof – to other third parties at any time without the Customer’s consent, and the Customer hereby expressly agrees to this and waives any right of objection to which it may be entitled, provided that this does not conflict with important objective interests of the Customer. The Customer may only transfer the contractual relationship with GrowthSquare or individual or all rights and obligations arising from it to third parties (including affiliated companies) with the prior consent of GrowthSquare.
4. Should a provision of these GTC be or become invalid due to mandatory legal regulations, the validity of all other provisions shall not be affected. In this case, the invalid provision shall be replaced by a provision which comes as close as possible to the economic content of the invalid provision.
5. The original German version of these GTC shall take precedence over this translation.
Version: December 2023