Terms of Use DF Deutsche Fiskal

General

The websites are accessible under fiskaly.com and sub-domains (together the “Website") are provided by fiskaly GmbH, FN 504484p, Mariahilfer Straße 36/5 (4th floor), 1070 Vienna (the "operator“).

1 Scope of Application

1.1 DF Deutsche Fiskal GmbH (“Deutsche Fiskal”) provides a cloud-based software solution designed to ensure compliance with tax law requirements for the operation of electronic or computer-based cash register systems or cash registers (electronic recording systems within the meaning of Section 1 of the Cash Register Security Ordinance – Kassensicherungsverordnung, “ERS”). Deutsche Fiskal makes this cloud-based software solution – the “Fiskal Cloud” – available to commercial customers (“Customers”) for a fee as a cloud service to be integrated into their ERS used within the sovereign territory of the Federal Republic of Germany (“Contract Territory”).

In addition, Deutsche Fiskal offers a hardware-based offline solution (“Fiskal Cloud Offline”), which enables Customers to use the central services of the Fiskal Cloud web portal (without an online TSS) within their organization, including special locations or locations without a permanent internet connection, in a uniform infrastructure.

As an optional extension of the functionalities of Fiskal Cloud, Deutsche Fiskal offers a cloud-based archiving solution including storage capacity – “Fiskal Cloud Archive” – which enables Fiskal Cloud data to be transferred to a long-term archive in accordance with tax law requirements.

To support integration and use of Fiskal Cloud, Deutsche Fiskal offers Customers technical consulting services in individual online workshops, including advice on connecting their software to Fiskal Cloud, commissioning and rollout, as well as access to the Fiskal Cloud development portal, through which Customers may use Fiskal Cloud in a test environment if required (“Fiskal Cloud Consulting”).

1.2 These General Terms and Conditions (“GTC”) apply to the respective business relationships between Deutsche Fiskal and its Customers, provided that the Customer is an entrepreneur (Section 14 German Civil Code – BGB), a legal entity under public law, or a special fund under public law.

1.3 These GTC apply exclusively. Deviating, conflicting, or supplementary terms and conditions of the Customer shall only become part of the contract if and insofar as Deutsche Fiskal has expressly agreed to their validity in writing. This applies in all cases, for example also if Deutsche Fiskal performs services for the Customer with knowledge of the Customer’s terms and conditions without reservation.

2 Provision of the Contract Products and Documentation

2.1 In accordance with the respective contractual agreement, Deutsche Fiskal provides Fiskal Cloud, Fiskal Cloud Archive, and Fiskal Cloud Offline (each individually a “Contract Product” and collectively the “Contract Products”) via servers that are accessible to Customers through internet-enabled ERS and an internet connection, which must be provided by the Customer. The servers are located in data centers operated by D-Trust GmbH in Berlin and Microsoft Deutschland GmbH in Frankfurt am Main and Berlin. The system requirements for ERS applicable at the time of contract conclusion are set out in the service description of the respective contractual agreement.

2.2 Upon conclusion of a contract for the provision of Fiskal Cloud, the Customer receives personal access credentials to the Fiskal Cloud self-service portal (“Fiskal Cloud Portal”) for an initial administrator, enabling the Customer to use Fiskal Cloud. The setup of the facilities required for the Customer’s use of Fiskal Cloud within the Fiskal Cloud Portal (e.g. configuration of organizational structures) is the responsibility of the Customer. The Customer shall take the necessary measures to prevent unauthorized use of the Contract Products.

2.3 Deutsche Fiskal shall provide the Customer with documentation on the use of the Contract Products in the form of API documentation (based on the OpenAPI standard), sample integration code (Java), and online help including online user documentation (consisting of an integration and implementation guide, Fiskal Cloud Portal documentation, and installation description for the Fiskal Cloud Connector) (collectively, the “Documentation”). The Customer is not entitled to pass the Documentation on to third parties and must protect it from access by third parties.

2.4 Fiskal Cloud includes a technical security system ("TSS") that requires certification. The TSS is provided by a specialized German provider of technology security services (“TSS Provider”). Following the initial overall certification by the German Federal Office for Information Security (Bundesamt für Sicherheit in der Informationstechnik), the TSS requires regular recertification (currently every five years). The TSS Provider is responsible for the required recertification and has undertaken vis-à-vis Deutsche Fiskal to carry out the certifications independently.

Deutsche Fiskal shall not be liable for impossibility or delay in the provision of the Contract Products insofar as this is caused by late delivery by the TSS Provider and is not attributable to Deutsche Fiskal. If Deutsche Fiskal is unable to provide the Contract Products due to late self-supply by the TSS Provider, Deutsche Fiskal shall inform the Customer without undue delay and specify a date on which service provision is expected to be possible again. If service provision is not possible within this new period, Deutsche Fiskal shall be entitled to terminate the contract extraordinarily with immediate effect. Any consideration already provided by the Customer shall be refunded without undue delay. The same applies in the event of other circumstances not attributable to Deutsche Fiskal that render performance impossible.

2.5 Within the scope of Fiskal Cloud Consulting, the Customer shall only receive access to the test environment in which the Contract Products may be used in accordance with the Consulting Agreement.

3 Cooperation Obligations of the Customer

3.1

The Customer is obliged to create and maintain the prerequisites necessary within its sphere for the use of the Contract Products. In particular, the Customer is obliged to comply with and maintain the technical requirements for Fiskal Cloud specified in the Fiskal Cloud service description. In particular, the conditions of certification and the proper operation of Fiskal Cloud require the implementation of an environmental protection concept intended to ensure the protection of the certified SMAERS component; the Customer must ensure that the environmental protection requirements are implemented.

3.2

As long as Deutsche Fiskal is unable to fulfill its contractual obligations due to the Customer’s failure to comply with its cooperation obligations, Deutsche Fiskal shall be released from its obligation to perform. The Customer’s obligation to pay the agreed remuneration shall remain unaffected.

4 Remuneration

4.1

Unless otherwise stated, all contractually agreed fees are stated net of value-added tax and shall be payable plus the applicable statutory VAT.

4.2

The Customer shall receive invoices for the respective amounts either in paper form or electronically. Invoiced amounts shall be payable within fourteen (14) days of receipt of a verifiable invoice that entitles the Customer to deduct input tax.

4.3

As the basis for invoicing and for tracking usage, Deutsche Fiskal shall provide usage reports on a monthly and annual basis in electronic form.

4.4

In the event of disputed invoice items (e.g. differences regarding quantity or price), the undisputed amounts shall be paid in due time. Invoice corrections in favor of the Customer may be made at Deutsche Fiskal’s discretion either by issuing a credit note for the difference or by correcting the invoice.

4.5

Deutsche Fiskal is entitled to adjust the agreed remuneration with three (3) months’ prior notice if this is necessary due to economic or legal circumstances (e.g. changes in operating costs for servers and other infrastructure, certification costs, etc.) and is reasonable for the Customer. Cost increases shall, where possible, be offset against cost reductions in other areas. The Customer may request a justification for the price adjustment. If Deutsche Fiskal announces a price increase that is not insignificant (> 15%), the Customer shall be entitled to terminate the contract for the provision of the Contract Product extraordinarily within four (4) weeks of receipt of the notification, with effect from the date on which the announced change would otherwise take effect.

5 Rights of Use

5.1

In accordance with the respective contract, the Customer is granted a non-exclusive, non-transferable, and non-sublicensable right to use the Contract Products and the associated Documentation for its own internal business purposes within the Contract Territory for the duration of the contract.

5.2

Use of the Contract Products outside the Contract Territory is prohibited and constitutes good cause entitling Deutsche Fiskal to terminate the contract extraordinarily and to assert claims for damages.

5.3

The Customer undertakes to comply with all applicable statutory export control regulations in connection with the use of the Contract Products. The Customer further undertakes to ensure that no persons, organizations, or entities listed on the sanctions lists of the European Union or the United Nations (in particular Regulations (EC) No. 881/2002, (EC) No. 2580/2001, and (EU) No. 753/2011) are involved in or supported by the performance of the contract. This also applies with regard to sanctions lists of other governments insofar as these do not extend beyond UN or EU sanctions.

The Customer further represents that neither it nor any of its legal representatives or shareholders is listed on such a sanctions list, is subject to or owned by any such listed person, organization, or entity. Should this change during the term of the contract, the Customer shall inform Deutsche Fiskal thereof without undue delay. In such a case, Deutsche Fiskal shall be entitled at any time to terminate or rescind the contract extraordinarily without the Customer being entitled to assert any claims as a result.

The parties agree that effective export control by the Customer is a material prerequisite for performance of the contract. A breach of export control regulations in connection with the use of Fiskal Cloud shall therefore always be deemed a serious violation of Deutsche Fiskal’s interests, even if caused by third parties and attributable to the Customer. The Customer shall indemnify Deutsche Fiskal against all third-party claims arising therefrom and compensate Deutsche Fiskal for any other expenses and damages, whether material or immaterial, including fines or penalties, resulting from non-compliance with export control obligations.

6 Liability for Defects

Insofar as German tenancy law applies to the contractual services, Deutsche Fiskal’s strict liability for defects existing at the time of contract conclusion is excluded. Clause 8 of these GTC remains unaffected.

7 Third-Party Rights

7.1

Deutsche Fiskal shall ensure that the Contract Products are free from third-party intellectual property rights that restrict or exclude contractual use.

7.2

If third parties nevertheless assert claims against the Customer for infringement of intellectual property rights through the use of the Contract Products, the Customer shall inform Deutsche Fiskal thereof in writing without undue delay. Deutsche Fiskal shall, at its own discretion and expense, satisfy, defend against, or settle such claims. The Customer grants Deutsche Fiskal sole authority to conduct the legal defense and settlement negotiations and shall grant Deutsche Fiskal the necessary powers of attorney on a case-by-case basis.

7.3

If an infringement claim exists for which Deutsche Fiskal is liable, Deutsche Fiskal shall remedy the cause of the claim within a reasonable period of time, at its discretion either by obtaining the right to continue using the Contract Product or by modifying or replacing it to a reasonable extent.

8 Standard and Limitation of Liability

8.1

Deutsche Fiskal shall be liable without limitation for the absence of guaranteed characteristics, for fraudulent intent, and for personal injury and property damage under the Product Liability Act.

8.2

Deutsche Fiskal shall be liable without limitation for damage caused intentionally or through gross negligence by its legal representatives or executive employees.

8.3

In the event of slight negligence in the breach of material contractual obligations, Deutsche Fiskal’s liability shall be limited to the damage typically foreseeable under the contract.

8.4

In the event of intentional or grossly negligent breach of non-material contractual obligations by simple vicarious agents, Deutsche Fiskal’s liability shall be limited to the damage typically foreseeable under the contract.

8.5

Material contractual obligations are those obligations whose fulfillment is essential for the proper performance of the contract and whose breach would jeopardize the achievement of the contract’s purpose, and on whose compliance the Customer regularly relies and may rely.

8.6

Within the scope of Clause 8.3, Deutsche Fiskal shall not be liable for loss of profit, indirect damages, or consequential damages resulting from defects.

8.7

If the parties individually agree on a maximum liability amount, Deutsche Fiskal’s fault-based liability within the meaning of Clauses 8.3 and 8.4 shall be limited to the agreed amount.

8.8

Any further fault-based liability of Deutsche Fiskal is excluded.

8.9

Any contributory negligence of the Customer in the occurrence, prevention, or mitigation of damage shall be taken into account. In particular, Deutsche Fiskal shall not be liable for loss of data insofar as the damage is due to the Customer’s failure to perform appropriate data backups and ensure that data can be restored from machine-readable data material with reasonable effort.

9 Force Majeure

9.1

If force majeure results in an impediment to the performance of contractual obligations, the parties shall be temporarily released from their performance obligations. Agreed deadlines shall be extended by the duration of the impediment plus a reasonable start-up period. The party affected by force majeure shall inform the other party without undue delay. The parties shall promptly coordinate the further course of action.

9.2

Force majeure shall include external events beyond the control of the parties caused by elemental natural forces or by actions of third parties, which are unforeseeable according to human insight and experience and cannot be prevented or rendered harmless even with the utmost care reasonably expected under the circumstances, and which are not to be accepted due to their frequency.

10 Data Protection, Non-Personal Data

10.1

If personal data are collected in the course of performing the contract, the parties shall ensure compliance with applicable data protection laws.

10.2

Insofar as Deutsche Fiskal receives personal data from the Customer, Deutsche Fiskal shall process such data exclusively in accordance with the Customer’s instructions and shall permanently delete or return such data to the Customer upon request. In this respect, the Customer acts as controller and Deutsche Fiskal as processor within the meaning of Article 28 GDPR. The parties shall conclude a data processing agreement in accordance with Article 28 GDPR.

10.3

Deutsche Fiskal may use, copy, distribute, and disclose non-personal data relating to the use of the Contract Products, in particular statistical data, for its own purposes, including the creation of benchmark reports, monitoring and optimization of the Contract Products and the underlying infrastructure, and use in conjunction with other Deutsche Fiskal programs.

11 Confidentiality

11.1

The parties undertake to use all knowledge and information obtained in the course of the contractual relationship solely for the performance of the contract and to treat such information as confidential without time limitation. This obligation shall not apply to information:

• that was publicly known at the time of receipt, unless this is due to a breach of this contract;
• that was already known to the recipient or was subsequently independently developed or discovered or became known from third parties without breach of confidentiality obligations;
• whose disclosure has been expressly approved in writing by the other party;
• that must be disclosed due to statutory obligations or by order of a court or authority.

11.2

The parties shall ensure that corresponding confidentiality obligations are agreed with their employees and agents involved in the performance of the contract.

12 Contract Term and Termination Rights

12.1

Contract terms and ordinary termination rights shall be agreed separately. The right to extraordinary termination for good cause without notice shall remain unaffected. Good cause shall exist in particular if:

• one party repeatedly and materially breaches its contractual obligations and the other party has unsuccessfully issued a warning or set a deadline for remedy; a warning or deadline shall not be required if the breaching party seriously and definitively refuses performance or if the relationship of trust is so severely disturbed that immediate termination is justified;
• insolvency proceedings are applied for or rejected due to lack of assets with respect to a party’s assets;
• grounds for the opening of insolvency proceedings within the meaning of Sections 17–19 of the German Insolvency Code (InsO) exist;
• the financial circumstances of a party deteriorate to such an extent that proper performance of the contract can no longer be expected, even if no grounds for insolvency proceedings exist.

12.2

All terminations must be in written form; text form shall not be sufficient.

13 Changes in Regulatory Requirements

The Contract Products are intended to enable Customers to comply with the regulatory requirements applicable in the Federal Republic of Germany at the time of contract conclusion regarding the immutability of digital basic records in ERS for uniform tax enforcement. If such regulatory requirements change during the term of the contract in a manner that becomes unreasonable for one party, the parties shall promptly coordinate on the further course of action, in particular on how performance and consideration must be adjusted to meet the changed requirements. If it becomes clear that the parties cannot reach an agreement, either party may terminate the contract extraordinarily with one (1) month’s notice to the end of a calendar month.

14 Set-Off, Retention, Assignment

14.1

The Customer shall only be entitled to rights of set-off or retention insofar as its claim has been legally established, is undisputed, or has been acknowledged. A right of retention may only be asserted with respect to counterclaims arising from the respective contractual relationship. Statutory rights in the event of defects shall remain unaffected.

14.2

The assignment of claims of the Customer against Deutsche Fiskal is excluded.

15 Final Provisions

15.1

Deutsche Fiskal may include the Customer’s name and a brief description of the services provided in a public reference list.

15.2

Deutsche Fiskal is entitled to have contractual services performed in whole or in part by third parties.

15.3

German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). Exclusive place of jurisdiction for all disputes arising out of or in connection with the contract shall be Berlin, Germany.

15.4

Upon request, the Customer shall receive an English version of the contract and these GTC. The English version is provided for informational purposes only. For the legal relationship between the parties, the German version shall be solely authoritative.