GENERAL TERMS OF SERVICE
(Version March 8, 2023)
1.General Provisions 1.1.
2035 Sunset Lake Road, Suite B-2
Newark, DE 19702, USA
provides SaaS solutions and related services for business customers located in the United States (“Customers”; together with Valutico ” Parties”) with regard to financial analysis (“Services”). For the avoidance of doubt, these GTS shall only be applicable with regard to Customers who are entrepreneurs.
1.2. Valutico provides all Services to its Customers on the basis of these General Terms of Service (“GTS”). The version of the GTS valid at the time of the conclusion of the contractual relationship shall be applicable. The current version of the GTS is available at https://valutico.com/us/terms-of-use
1.3. These GTS shall also apply to all Services between the Parties, even if they are not specifically referenced when a Contract or additional Order Form is entered into, provided that they have an actual connection to the contractual relationship in question.
1.4. General terms and conditions of the Customer that provide for regulations deviating from these GTS or other contractual agreements between Valutico and the Customer shall only apply if Valutico has expressly submitted to them in writing. Valutico reserves the right to change these GTS at any time and without giving reasons. Changes to the fees or the scope of agreed Services are only possible with the express consent of the Customer. Changes to the GTS, which apply to existing Contracts, must be announced at least 30 days before they come into effect on Valutico’s website at https://valutico.com/de/terms-of-use and by sending the text of the GTS to the e-mail address last notified by the Customer. If the Customer does not object to the changes within 20 days of receipt of the aforementioned announcement in writing by e-mail to [email protected], the changes shall be deemed accepted. In the event of a timely objection by the Customer, the Contract between the Customer and Valutico shall be terminated with the next possible termination date as specified in these GTS or in the Order Form.
2.Conclusion of a Contract
2.1. The Customer shall receive a written offer from Valutico for the type, scope and fees of the provision of SaaS Services (“Order Form”) limited to the Customer identified in the Order Form. Valutico’s offers or any fee estimates are non-binding and subject to change unless they are expressly designated in the Order Form as binding.
2.2. In the case of non-binding offers, the valid contractual relationship (“Contract”) between the Parties shall start upon written confirmation by Valutico of acceptance of the offer or, in the absence of such confirmation, upon commencement of the performance of the Services described in the Order Form (e.g. provision of SaaS or onboarding on the Platform). In the case of binding offers, the Contract shall be effective upon written acceptance of the Order Form by the Customer within the offer period specified in the Order Form.
2.3. In order to access any SaaS Services as provided by Valutico, the Customer as well as other Users of the Customer (in accordance with section 5 of these GTS) must to create an account for the Valutico platform (“Platform”) (currently at https://valutico.com/authentication/registration-form) (“User Account”). Valutico will provide to the Customer and or its Users an activation code or will otherwise activate the User Account upon the Conclusion of the Contract to complete their registration. After registration and email address verification, the Customer and or its Users can log into its User Account at https://valutico.com/authentication to access Services subject to the Order Form and manage its User Account.
2.4. Each Order Form executed as well as each use of any other Service without entering into an Order Form shall constitute a Contract as such and is in each case subject to the GTS, except as otherwise agreed in writing. In the event of any conflict among the GTS and the Order Form, the terms of the Order Form shall prevail.
3.Subject and Scope of Services
3.1. The subject of this GTS are the legal, organizational, commercial and technical conditions for the respective provision of Services. Depending on the type of Service, Services may be provided free of charge or against payment.
3.2. Services in the form of SaaS subscriptions are considered to be provided “as is” and can generally be accessed via the https://valutico.com website, unless otherwise agreed upon in the Order Form or results from the nature of the Service. In any case, Valutico does not provide the necessary client hardware or software to use the Services accordingly. Further, Valutico assumes no responsibility for the Services being compatible with any hardware and software used by the Customer.
3.3. Valutico has freedom of design in the provision of Services (in particular regarding provision of SaaS) within the agreed contractual scope, unless otherwise agreed in writing. Valutico is furthermore entitled to modify agreed Services to a reasonable extent.
3.4. Valutico’s Services are intended exclusively for experts in the field of financial analysis who can appropriately evaluate and understand the information contained therein. The results and estimates presented in the course of the provision of Valutico’s Services are of indicative nature only using publicly available information, benchmarks and criterion for different industries which might be unfitting and differentiate from the amount that would be realized on a business transaction. This can be the result of information, factors and data points that have changed or are not available to Valutico or have not been presented by the Customer. Therefore, all the information distributed in any form in the course of the provision of the Services is for informational purposes only.
3.5. Valutico is not an investment advisory company and does not conduct investment advisory or financial advisory of any kind. Valutico is not a bank, broker/dealer, asset management firm or investment advisory institution. Valutico or its employees and directors do not act in the aforementioned functions, and do not offer investment, trading or financial advice and do not give financial recommendations. At any given point in time, Valutico, its employees or directors may hold positions in the securities that may be referred to in Valutico’s Services.
3.6. For the avoidance of doubt and due to the applicable laws in the United States of America as well as in the European Union (MiFiD), Valutico (via the provision of its Services) cannot and does not give any financial advice, suggest trading and investment opportunities and hence cannot and does not promise any specific return on any investment.
3.7. With regard to Services provided free of charge, Valutico reserves the right to modify or discontinue these at any time and without giving reasons. In particular, no promises are made with regard to the availability, timeliness, completeness and accuracy of these services and no warranty or liability is assumed in this regard.
3.8. Valutico shall be entitled to engage subcontractors with appropriate qualifications, for whose conduct Valutico shall be liable to the Customer as for its own.
4.Service Provision and Cooperation
4.1. In order to provide the Services, Valutico may require certain information, data and documents, which describe the Customer’s intent in relation to the Services and which may vary depending on the nature of the Services. These shall be provided by the Customer in a timely and complete manner upon Valutico’s request. The Customer shall inform Valutico of any circumstances that are relevant to the performance of the Contract. Additional expenses due to incorrect, incomplete or omitted information shall be borne by the Customer; this may be charged to the Customer additionally.
4.2. It is the responsibility of the Customer to check the accuracy and legality of the information (including documents, designs, software and others) provided for the performance of Services and to check such information for any third-party rights and harmful content (including, but not limited to, virus, worm, malware, or other malicious computer code). Valutico shall not be obliged to check in this respect and may assume the Customer owns all required rights to use the information for the intended purposes. If the Customer further transmits personal data of its data subjects to Valutico, Valutico shall assume that the Customer has the corresponding authorization to do so. If a claim is made against Valutico due to the Customer’s infringement of third party and data protection rights, the Customer shall indemnify and hold Valutico harmless in this regard.
4.3. The Customer grants Valutico hereby irrevocably grants all such rights and permissions in or relating to use all information provided by the Customer for the provision of Services and to the extent necessary for the fulfilment of the Contract.
4.4. The Customer further acknowledges and agrees that it must not and will not permit any third party to use the Services to enable any person or any other third party to benefit from any activities Valutico has identified as a restricted business or activity (collectively, “Restricted Businesses”). For the avoidance of doubt, Restricted Businesses include the use of Services in or for the benefit of a country, organization, entity, or person embargoed or blocked by any government, including those on sanctions lists identified by the United States Office of Foreign Asset Control (OFAC), the European Commission, or the Republic of Austria.
5.1. As regards SaaS Services, the selected SaaS package as well as the amount of users of each Customer (“User”) shall be agreed on in the Order Form. Each User Account is for a single user (e.g. employees of the Customer) only. The Customer is responsible for all activities that occur under the User Accounts it is responsible for. The Customer is further responsible to ensure that all Users are over the age of 18.
5.2. The Customer shall compel its Users (1) to be responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all data they provide; (2) to promptly update the registration information through the Service or as otherwise directed by Valutico in order to keep such information true, accurate, and up to date; (3) to maintain the confidentiality of their passwords and User Account information (“User ID”) and not to disclose their User ID, either directly or indirectly, to any person; (4) to use their best efforts to prevent unauthorized access to, or use of, the Services, and notify Valutico promptly of any such unauthorized use; and (5) to comply with all applicable local, state, and federal laws in using the Services.
5.3. Only a User may access a password-protected portion of the Service through the User ID and it is prohibited to share this with any other person or use it in any manner that is inconsistent with the GTS. The Customer agrees to maintain only one account per User with the Service at any time. The Customer also agrees to oblige Users not to access the Service simultaneously from two or more devices.
5.4. The Customer agrees (1) to promptly notify Valutico at [email protected] of any known or suspected unauthorized use(s) of the Service, including but not limited to the User ID, or any known or suspected breach of security, including but not limited to, loss, theft, or unauthorized disclosure of a User ID; and (2) to properly exit any password-protected portion of the Service at the end of each session.
5.5. Valutico shall not be liable to the Customer or any third party (in particular Users) or entity for any loss or damage arising from the Customer’s or its Users’ failure to comply with the requirements as set out in these GTS, the applicable Order Form or any other applicable agreement. If a device on which the Service is accessed is sold or transferred to another party, the Customer shall oblige its Users to delete all cookies, data, software files and other materials obtained by or through use of the Service that are stored on such device.
5.6. Valutico reserves the right to temporarily suspend a User Account if it detects suspicious activity originating from its User Account to protect its Services, other Customers and third parties.
6.Intellectual Property Rights
6.1. Valutico’s Services contain proprietary information owned by Valutico or its suppliers, including, but not limited to, financial data, text, photos, video, graphics, trademarks, logos, visual interfaces, software, computer code and other related content, which are protected by intellectual property laws.
6.2. Unless otherwise stated, Valutico owns all international intellectual property rights on its Services. Except for the limited rights of use expressly granted to the Customer under this GTS, all title to the rights in the Services, including ownership rights to patents, copyrights, trademarks, trade secrets, Valutico’s or third party’s technology, any derivatives of and all goodwill associated with the foregoing is the exclusive property of Valutico and/or the applicable third party. By accepting these GTS, the Customer acknowledges and agrees not to acquire any ownership or other rights in proprietary information and materials of Valutico or any applicable third party by using its Service.
6.3. The Customer acquires the non-exclusive, non-transferable right, limited in time for the duration of the Contract, to use the Services and works associated with the Services (in particular SaaS, “Works”) for internal business purposes, namely in particular to access the Services (via the User Account if applicable) and /or retrieve information and background research on business valuation.
6.4. Works include in particular SaaS, its underlying software, as well as other content provided by Valutico (such as, in particular, offers, drafts or other data carriers) and are protected by copyright and may not be used or edited beyond the right of use granted in the GTS without Valutico’s prior written consent. The Customer agrees not to decompile the Works, not to reverse engineer the Works, not to attempt to obtain the source and or object code of the Works, not to edit, alter, modify, reproduce, distribute, (re-)sell, lend, loan, lease, (sub-)license or transfer the Works or to create derivative works from the Works.
6.5. The Customer acquires the non-exclusive, restricted transferable right, unlimited in time, to use work results created by the Services (in particular business valuation reports, “Work Results”) for internal business and background research purposes only. This does in any case not include the right to (re-) publish and disclose or otherwise market Work Results in any publicly available media, in particular on websites, or any other public or private retrieval system. The Customer shall ensure that only those employees and other authorized persons have access to Work Results within its organization who are actually involved in the matter relevant to the Work Results. The Customer is further allowed to pass on Work Results to its client, provided that the Customer prior obliges its client in writing to comply with the term of use as set out in this paragraph 6.5 and to not pass on Work Results to third parties.
6.6. The acquisition of the rights of use according to this section 6 requires in any case the full payment of the Fee invoiced by Valutico for the related Services.
6.7. Under no circumstances shall any unauthorized reproduction or distribution of Services give rise to any liability on the part of Valutico, in particular, for example, for the correctness of the Services vis-à-vis third parties.
6.8. The Customer’s breach of the provisions of this section 6 shall entitle Valutico to immediately terminate the Contract prematurely for cause and to assert other legal claims, in particular for injunctive relief and damages.
7.1. The provision of Services by Valutico is purely a service activity. Therefore, no success is owed in relation to the goals sought through the use of the Services. Valutico assumes no liability for the availability of and the accuracy, timeliness and completeness of the results obtained through the use of the Services. Likewise, not for any consequential damages. The Customer is therefore solely responsible for critically examining results as obtained through the Services and assessing it on its own responsibility.
7.2. Liability shall be limited to damages caused intently and gross negligently and any liability for damages slight negligently caused shall be excluded to the extent legally permissible. Any liability of Valutico for atypical damage, loss of profits, damage due to errors, indirect and consequential damage and damage to third parties is excluded.
7.3. Claims for damages by the Customer expire six months after knowledge of the damage and the damaging party, but no later than two years after Valutico’s conduct giving rise to liability.
7.4. The Customer undertakes to transfer to its representatives, who are accessing Services, all obligations arising from the Contract and, as far as possible, to ensure that the Contract is complied with. The Customer shall be liable to Valutico for any corresponding misconduct of its representatives. The Customer shall also fully indemnify and hold Valutico harmless against claims by representatives that are due to a breach of the Customers’ obligations towards Valutico.
7.5. IN NO EVENT WILL VALUTICO OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE CONTRACT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
7.6. IN NO EVENT WILL THE AGGREGATE LIABILITY OF VALUTICO ARISING OUT OF OR RELATED TO A CONTRACT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED TWICE THE TOTAL AMOUNTS PAID TO VALUTICO UNDER A CONTRACT IN THE SIX MONTHS PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM €5,000 WHICHEVER IS LESS..
8.1. Valutico represents, warrants, and covenants to Customer that Valutioc will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations.
8.2. All commercially reasonable measures and efforts are taken by Valutico to ensure that its Services are available and operational. Uptime measurements exclude periods of scheduled downtime or planned outages as well as routine, scheduled and emergency maintenance. In addition, the Services may be temporarily unavailable due to issues such as system failure, maintenance or repair or for reasons beyond Valutico’s control. Furthermore, occasionally technical issues might result in downtime and accordingly Valutico cannot guarantee the availability of the Services at all times. To the extent possible, Valutico shall try to give advance notice of maintenance issues that may result in downtime of the Services, however Valutico shall not be obliged to provide such notice.
8.3. The Customer represents, warrants, and covenants to Valutico that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the date provided by Customer so that, as received by Valutico and used to provide its Services to the Customer, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
8.4. Customer warrants that it shall report any errors occurring during the use of the Services (in particular SaaS) to Valutico without delay. An error exists if the Service does not perform the functions specified in the Order Form, delivers incorrect results, or does not behave in a functional manner in any other way, so that the use of the Service is impossible or significantly restricted. Valutico shall locate, analyse and correct errors reported by the Customer or detected by Valutico in the course of the operation of the Service within a reasonable timeframe.
8.5. If a defect of a Service is exclusively due to incorrect information and incorrect operation by the Customer, the Customer shall have no warranty claims.
8.6. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS ARTICLE 8, ALL SERVICES AND VALUTICO MATERIALS ARE PROVIDED “AS IS.” VALUTICO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, VALUTICO MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR VALUTICO MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
9.Terms of Payment
9.1. The fees for Services provided are agreed upon in the Order Form (“Fees”). Unless expressly stated otherwise, all Fees are excluding statutory value-added tax and any other current or future applicable statutory duties.
9.2. Unless otherwise agreed in the Order Form, billing for SaaS subscription Services shall take place in yearly billing periods. The issuance of the invoice takes place after the conclusion of the respective Contract. Payments are due no later than 14 days after receipt of the respective invoice.
9.3. The billing for other Services as provided, shall take place at the beginning of the month following the month, in which the respective Services were provided.
9.4. Payment shall be made by the Customer by credit card or any other payment method as indicated in the invoices as issued by Valutico. The Customer shall pay all transfer charges as may be applicable. Valutico requires all international transfers to be made with bank transfer or credit card payment (or similar).
9.5. In case of automatic renewal of SaaS Service subscriptions according to section 11.2 of these GTS, the payment for the next term is automatically invoiced or directly debited from the Customer’s credit card.
9.6. Valutico reserves the right to start providing the Services only after receipt of the first payment.
9.7. The Customer is not entitled to set off counterclaims against claims of Valutico unless such counterclaims have been determined by a court or acknowledged by Valutico in writing.
9.8. Invoices are sent to the Customer in PDF format to the latest email address provided by the Customer. In the event that the Customer should be under the impression that Valutico has billed incorrectly, the Customer must contact Valutico’s billing department ([email protected]) no later than 30 days after the expiration date of the billing statement in which the error occurred.
10.Default of Payment by the Customer
10.1. In the event of late payment of Fees, Valutico shall be entitled to withhold its Services or to terminate the Contract with immediate effect following at least one unsuccessful reminder and setting an appropriate grace period. As an alternative to termination, Valutico may also make the further provision of Services dependent on a reasonable security deposit or advance payment. Valutico reserves the right to separately claim the costs for out-of-court cost collection and the related expenses and or to assign its related claims to third parties.
10.2. In case of a late payment by the Customer, Valutico is entitled to a statutory interest rate of 4% per annum. The interest rate shall be increased to 9.2% or the highest rate permissible under applicable law for the relevant six-month period, if the failure to pay continues for 30 days after written notice thereof. Furthermore, Valutico shall be entitled to charge all costs incurred and necessary for the purposeful prosecution in case of default of payment for which the Customer is responsible.
10.3. In the event that Valutico temporarily revokes the access to Services due to non-payment, this shall not constitute a reason for a refund or any other type of compensation. Upon successful payment of the late invoices, Valutico will, without undue delay, reactivate all deactivated User Accounts.
11.Term and Termination
11.1. Unless specified otherwise in the Order Form, the term of the Contract will begin upon (1) the starting date as agreed in the Order Form; or (2) usage of the Services, whichever occurs first, and will continue until terminated in accordance with the GTS or the Order Form (“Contract Term”). The Customer may only terminate the Contract in writing by sending an email to [email protected].
11.2. For those Services subject to a limited term and unless the Parties do not otherwise agree on in the Order Form, the Contract shall automatically renew for subsequent equal Contract Terms unless terminated by either Party by written notice to the other Party at least thirty days prior to the renewal of the respective Contract Term. If such notice shall be given, the Contract shall terminate on the next succeeding Contract Term end date.
11.3. For Services free of charge and / or for which an Order Form is not concluded, the Contract shall end, if not otherwise agreed in writing, with the completion of the use of the respective Service.
11.4. In addition to any other remedies it may have, either Party may also terminate the Contract, if the other Party breaches any of the terms in this GTS. The Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon request after termination, Valutico will make all Customer data available for electronic retrieval for a period of thirty 30 days, but thereafter Valutico may, but is not obligated to, delete stored Customer data. Valutico shall be entitled to charge an appropriate fee according to the amount of work performed.
11.5. Valutico reserves the right to refuse activation of a User Account for any reason and may suspend or terminate Services in case Customer is in breach of any terms of this GTS, or (2) participates in any behavior that Valutico, in its sole discretion, think may be detrimental to Valutico or its reputation.
12.Confidentiality and Data Protection Valutico undertakes to treat all data and information disclosed to it in connection with the provision of Services confidential. Excluded from these obligations are those cases in which there is a legal or official obligation to disclose such confidential information or data.
13.1. The Customer grants Valutico the right to use the Customer’s name together with a description of the Services provided under the Contract in publications for illustration and advertising purposes in both print and electronic media, if necessary, also adding literal quotations and using the Customer’s logo, and to name the Customer as a reference customer within the scope of Valutico’s commercial activities.
13.2. The consent to be named as a reference customer can be revoked at any time. The revocation must be made in writing. Should it not be possible to cancel any publications that have already been made for technical or practical reasons (e.g. publication in a print medium that has already taken place) after receipt of the declaration of revocation, no claims by the Customer against Valutico can be derived from this.
14.Choice of Law, Place of Performance, Place of Jurisdiction
14.1. All disputes between Valutico and Customer shall be governed exclusively by laws of the State of Delaware, United States.
14.2. For all disputes between Valutico and the Customer, the Parties agree on the exclusive jurisdiction of the court having subject-matter jurisdiction for Vienna.
14.3. Unless otherwise agreed in writing, the place of performance for Services by Valutico shall be its registered office.
15.1. Each Party shall bear its own taxes, duties or fees arising from the establishment of the Contract.
15.2. Amendments, supplements and ancillary agreements to the Contract must be made in writing to be effective. This also applies to the agreement to deviate from this formal requirement. The Parties agree in this context that facsimile signatures and signatures on an electronic image, file, or document (e.g. an image, file, or document in .pdf or .jpg format) or signing by use of electronic platforms such as ePact, DocuSign, or similar, shall be acceptable and deemed original signatures.
15.3. Should individual provisions of the Contract, including these GTS, be or become invalid, this shall not affect the remaining content of the Contract. The invalid provision shall be replaced by a valid provision that is legally valid and comes as close as possible to the economic intent of the Parties.
15.4. In the absence of any provision to the contrary in the Contract, the provisions and rights arising from the Contract may not be passed on or assigned to third parties without the written consent of the other Party.
15.5. A “third party” in the sense of these GTS shall be any natural or legal person different from the Parties in the legal sense, even if legal and/or economic relations should exist with such a person.