1. Area of Application
1.1. These general terms and conditions of appers GmbH (hereinafter referred to as “appers”) apply for all and any transactions between us (appers) and you (hereinafter also referred to as “contract partner”). We only enter into contracts on the basis of these Terms of Service. Contract partners’ general terms and conditions are expressly not part of the contract, even in case appers has not expressly objected to them. Contractual penalties are borne by appers only if explicitly agreed in writing.
1.2. By visiting this site and / or purchasing service from appers, you agree to be bound these Terms of Service, including those additional terms and conditions and policies referenced herein. These Terms of Service apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants as well as consumers, and/ or contributors of content.
1.3. They also apply for future transactions and additional agreements, even if not expressly incorporated into future agreements. In each case the version of the terms and conditions involved in the transaction at the time of the conclusion of the contract is authoritative.
1.4. You can review the most current version of the Terms of Service at any time on this page. We reserve the right to update, change or replace any part of these Terms of Service by posting updates and/or changes to our website. It is your responsibility to check this page periodically for changes. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
1.5. Verbal deviations from these Terms of Service are not binding on appers.
2. Description of Service
2.1. appers provides our Service as defined below to you via its website located at appradar.com (the “Site”), subject to these Terms of Service.
2.2. The “Service” includes
(a) the Site (b) the on-demand software © the other services provided to you through the Site based on the Services purchased, including all software, data, text, images, sounds, videos, and other content made available through the Site, developed via the API, or Consulting Services (collectively, “Content”). 2.3. Any new features or tools that are added to the current Service shall also be subject to the Terms of Service.
2.4. The Service may also include basic or expanded support based on the product purchased. appers does its very best to make the Service available except for:
(a) planned downtime (of which you will be notified in advance) (b) any unavailability caused by circumstances beyond our reasonable control, such as, but not limited to, war, acts of government, acts of terror or civil unrest, or technical failures beyond our control (force majeure).
2.5. appers shall give our best efforts to adhere to the agreed deadlines to perform the service as precisely as possible. If unforeseeable circumstances or circumstances independent of the intentions of the parties arise, such as all cases of force majeure, which impede adherence to the agreed deadline for delivery or provision of services, the deadline extends in each case for the duration of these circumstances. These circumstances therefore also give rise to an extension of the deadline if they arise for subcontractors.
2.6. appers provides the Service only. The contract partner is responsible for providing whatever resources are needed to access and use the Service. The necessary preparations, as well as the provision of services required for that, are made at the cost and risk of the contract partner.
2.7. Information about our Service not published by us is not binding on appers.
3.1. Estimates are provided only against remuneration. Consumers will be informed of this fact again before an estimate is prepared.
3.2. Estimates are drawn up according to the best professional knowledge and given information of the project volumes to be expected and its costs. The actual costs can differ from the amount given in the estimate. Unless specifically set forth in writing, estimates are not binding on appers, however we will inform you if a project is significantly exceeding the estimated workload/time/costs.
3.3. By signing the estimate, the contract partner grants to provide appers with work to be carried out up to the extent as set forth in the estimate.
4.1. Offers are made only against remuneration and shall only be made on the basis of specified details. If no order is made on the basis of said offer within the period of validity, the costs for drawing the offer have to be borne by the contract party.
4.2. Our offers are subject to change.
4.3. Our offers are sine obilgo. A contract does not come into effect until a written order confirmation is dispatched by appers. appers is also entitled to accept and effect orders in part or to decline an order without stating reasons.
4.4. appers reserves the right to demand original documents and by mail, i.e. through exclusive dispatch by post, from the contract partner.
5. Data Privacy and Security
5.1. In providing you with our Service we shall maintain appropriate administrative, physical and technical safeguards to protect the security, confidentiality and integrity of your data and the personal data of your end-users. These safeguards include encryption of your data in transmission (using SSL or similar technologies), except for certain external third party integrations that do not support encryption, which you may link to the Service at your choice. appers offers our best efforts in providing safe communication; we cannot guarantee complete safety due to the inherent nature all electronic communication.
6. Pricing, Payment, Due Dates and Billing
6.1. To the extent the Service or any portion thereof is made available for a fee, you will be required to select a payment plan and provide appers information regarding your credit card or other payment instrument. appers reserves the right to enter into contracts only after the an advance payment has been made.
6.2. Provided that nothing else is agreed in the contract in writing, the prices are given in Euro and do not include value-added tax, unless explicitly stated. Lump-sums are only applicable is appers confirms this in writing.
6.3. appers reserves the right to make appropriate price changes. Should the costs increase on the basis of changed demands or framework conditions up to the time of the performance of the service or while the project is being carried out, appers is entitled to adjust the prices accordingly. The contract partner shall however be informed about this beforehand. The contract partner shall be billed according to the actual expenditure for assessments and the creation of offers.
6.4. You represent and warrant to appers that payment information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur.
6.5. You agree to pay appers the amount that is specified in the payment plan in accordance with the terms of such plan and these Terms of Service. You hereby authorize appers to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred.
6.6. If you choose to upgrade your plan during your elected subscription period, any incremental cost will be prorated over the remaining term of the subscription period and charged to your account. Subsequently, you will be charged the adjusted rate on your next billing cycle.
6.7. We may offer alternative fee structures, discounts, coupons or incentives, at our sole discretion and for any reason, and we are under no obligation to offer such alternatives to all users.
6.8. Travel time shall constitute as work time. Costs for accommodation, board and other travel costs shall be identified and billed separately and are not part of the costs for travel time.
6.9. If the contract partner wishes or requires the delivery of the source code (development- or design- documentation, sources, files, libraries or the like) of the offered services in the range of software development, a surcharge of 100% on the net costs of any service will be billed. This applies especially to cases when the delivery of the source code and/or the mentioned surcharge is not explicitly mentioned in the offer.
6.10. Payments are, unless otherwise agreed in writing, due on the date the invoice is received without any deduction in the agreed currency. A payment is regarded as performed on the day on which appers can dispose of them.
6.11. In the case of orders which include several separable parts, appers is entitled to make part invoices for which the payment terms and conditions established for the full order also apply. It is agreed that a part invoice can be made every two weeks. The extent of this part invoice includes at least all those works which have been delivered in the last two weeks.
6.12. The contract partner is not entitled to retain or offset payments because of guarantee claims or other counterclaims.
6.13. appers is entitled to send the contract partner invoices in electronic form and the contract partner expressly agrees with this form of delivery. This mode of invoicing will be agreed on severally with consumers.
7. Late Payment
7.1. If the contract partner defaults on an agreed payment or other service from this or other transactions, appers can, without affecting its other rights
(a) postpone the fulfilment of its own obligation until completion of this payment or other service and claim an appropriate extension to the performance deadline, (b) make payable all open claims from this or other transactions and credit interest for delay amounting to 9,2 % for businesses above the basic rate of interest (4% p.a. for consumers) for these amounts from the particular due date, provided that the contractor does not generate costs going beyond this.
7.2. In any case, appers is entitled to charge pre-court costs, in particular dunning fees and lawyer fees.
7.3. In case the payment deadline is exceeded, a fee of EUR 40,– shall be charged to business customers in addition to the interest for delay.
8. Warranties and Guarantees
8.1. appers will remedy inaccuracies and defects in our performance of which we become aware of regardless of fault. appers shall inform the contract partner about this immediately.
8.2. This claim for the contract partner expires six months after performing the particular service. If the contract partner is a consumer the above mentioned period expires within two years.
8.3. This limited guarantee does not apply for software and services which have been provided free of charge. This includes updates, preliminary or test versions, websites and online services, or software or services which have been changed by the contract partner or third parties; appers in this case fully excludes the guarantee.
8.4. In order to make a guarantee claim for products, the contract partner must return the software during the period of limited guarantee, providing the purchase receipt to the dealer from which the software was purchased.
8.5. It is assumed that the most technically efficient or easiest way will be taken in order to fulfill a requirement. There are therefore expressly no implicit functions or acceptance criteria.
8.6. appers conducts maintenance and assistance generally only from Monday to Friday between 9 am and 5 pm, while the services are (partially) available 24⁄7. The contract partner has no right to maintenance and assistance outside the usual hours. If appers agrees to provide maintenance and assistance outside the usual hours, such work will billed with double the usual hourly price.
8.7. In case the contract partner alters software on his own or without the consent of appers (regardless if the alteration is made on the server or in the source code), any warranties and guarantees are void, as are any liabilities of appers according to para 9. of these Terms of Service. Services provided by appers which are necessary to restore the original functions will be billed with double the usual hourly price.
9. Liability and Damages
9.1. appers is liable to the contract partner for damages – except personal injury – only in cases of intent or gross negligence. This also applies mutatis mutandis for damages which originate from third parties called in by appers.
9.2. Claims for compensation for damages by the contract partner can only be made judicially within six months from knowledge of the damages and the tortfeasor, but at the latest within three years after the event establishing the claim. Otherwise the claim is forfeited.
9.3. Provided that appers performs the service with the assistance of third parties and guarantee and/or liability claims arise in this connection against these third parties, appers assigns these claims to the contract partner. The contract partner shall in this case seek compensation from said third parties.
10. Contract, Contract Period and Contract Termination for appers Software as a Service Products
(1) The contract between the customer and appers is started by the customer or by appers in delivering contract relevant items. appers has the right to deny the work with a specific customer without making the reasons public. (2) We are offering two different possibilities when it comes to the topic contract period. (a) The contract is based on a monthly subscription. If the contract isn’t terminated by the customer, it is automatically renewed for one additional month. If the customer wants to terminate the contract he can do that within his Account Settings. The contract will finally be terminated at the end of the current month in which the account gets deactivated. (b) The contract is based on a yearly subscription. If the contract isn’t terminated by the customer, it is automatically renewed for one additional year. If the customer wants to terminate the contract he can do that within his Account Settings. The contract can be terminated anytime. If it isn’t terminated, the contract will automatically be renewed for one additional year.
11. Money back guarantee & refund policy
appers does not provide refunds or credits for any partial months of use of the Service.
12. Intellectual property rights and copyright
12.1 The copyrights to those works created by appers and its employees and commissioned third parties (in particular offers, cost estimates, reports, analyses, experts’ reports, organisation plans, programs, performance descriptions, drafts, calculations, drawings, data carriers, presentations, etc.) remain with appers. They may be used by the contract partner during and after the contract relationship exclusively for the purposes included in the contract.
12.2. The contract partner is in this respect not entitled to copy and/or distribute the work (or works) without express consent from appers in writing. appers is in no way liable vis-à-vis third parties when the work is copied/distributed without authorisation, in particular for the correctness of the work.
12.3. appers can demand the return of all documents listed above and these are in any case to be returned to appers immediately and without being asked if the contract does not come into force.
12.4. Breach of these provisions by the contract partner entitles appers to immediately terminate the contractual relationship prematurely and to make other claims, in particular for omission and/or compensation for damages.
13.1. The contract partner is obligated to maintain confidentiality over the knowledge he receives from the commercial relationship vis-à-vis third parties.
13.2. appers is not bound to maintain confidentiality vis-à-vis necessary assistants and representatives as long as the obligation of confidentiality is imposed on them in full.
13.3. The obligation of confidentiality also extends without limit beyond the end of this contractual relationship.
13.4. appers is entitled to process personal data entrusted to it within the scope of the purpose of the contractual relationship. The contract partner guarantees appers that all necessary measures in this regard, in particular those in the sense of the law on data protection (DSG 2000), such as declarations of consent, have been taken.
13.5. The contract partner allows appers to copy the concluded project as part of appers portfolio, create links to it or to use parts of it for the purposes of appers own advertising free of charge, also following the end of the contract period.
13.6. With the agreement of the contract partner, appers is entitled to discreetly place its signature, logo or other marking common in the trade on the appers website for contents which have been created for the contract partner.
14. Representations and Warranties
14.1. You represent and warrant to appers that you have full power and authority to enter into this agreement. You own all your Content or have obtained all permissions, releases, rights or licenses required to engage in your activities (and allow appers to perform its obligations) in connection with the Services without obtaining any further releases or consents; your Content and other activities in connection with the Service, and appers’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and you are eighteen years of age or older.
14.2. The contract partner, with regard to copyright, guarantees that all text elements, graphics, photos, designs, copyrights or other artworks which are provided are the property of the contract partner or that the contract partner may use them.
14.3. Resources which are required and not commissioned shall be provided by the contract partner or commissioned separately. This includes among others access data to existing hosting, databases or web services; localised texts and descriptions as well as localised graphics or logos.
14.4. We do not guarantee, represent or warrant that your use of our service will be uninterrupted, timely, secure or error-free. We do not warrant that the results that may be obtained from the use of the service will be accurate or reliable.
14.5. You expressly agree that your use of, or inability to use, the service is at your sole risk. The service and all products and services delivered to you through the service are (except as expressly stated by us) provided ‘as is’ and ‘as available’ for your use, without any representation, warranties or conditions of any kind.
15. Third Party Links
15.1. Certain content, products and services available via our Service may include materials from third parties.
15.2. Third party links on this site may direct You to third party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third party materials or websites, or for any other materials, products, or services of third parties.
15.3. We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third party websites. Please review carefully the third party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third party products should be directed to the third party.
16. Newsletters and References
16.1. appers will send newsletters to its users. By accepting these Terms of Services, the user allows appers to send newsletters. The user can opt out of receiving a newsletter each time such newsletter is received. Upon opting out, the User will not receive any further newsletter from appers.
16.2. appers reserves the right to use Your name and/or company name as a reference for marketing or promotional purposes on Elastic’s website and in other communication with existing or potential appers customers. To decline appers this right You need to email email@example.com stating that You do not wish to be used as a reference.
17. Further Provisions
17.1. These Terms of Service and any separate agreements whereby we provide you Services shall be governed by and construed exclusively in accordance with the material laws of the Republic of Austria under the exclusion of CISG and the laws of international private law. All and any litigation shall be held before the responsible court for 8010 Graz unless the contract partner is a consumer. appers is however also entitled to apply to another court responsible for the contract partner.
17.2. Changes to the contract and these Terms of Service are required to be in writing; this also applies to deviations from this requirement of writing. There are no oral subsidiary agreements.
17.3. If individual provisions of the contract or these terms and conditions should be ineffective, the effectiveness of the remaining provisions shall not be affected. The ineffective provision is to be replaced with a valid provision which comes as close as possible to the sense aimed for and the economic purpose.
17.4. The parties to the contract confirm that they provided all statements in the contract diligently and truthfully. The contract partner is obligated to inform appers immediately about changes in its contact address, insofar as the legal transaction which is the object of the contract is not completely fulfilled by both sides. If the contract partner omits to provide this information, statements are also considered received if appers sent them to the last known address.
17.5. We reserve the right to refuse, cancel or suspend service, at our sole discretion.
17.6. These Terms of Service are only authoritative in the German language; translation into other languages constitue merely aids.
18.1. Questions about the Terms of Service can be addressed to:appers gmbh
Kärntner Straße 391/7