GENERAL TERMS AND CONDITIONS
1. GENERAL
1.1 The following General Terms and Conditions (“GTC”) are concluded between Crashwise FlexKapG, FN 657557 x, Ziestgasse 2, 1140 Vienna, Austria (“Crashwise”) and its business customers (“Customer”), together the “Parties”, by the Customer’s (electronic) acceptance upon conclusion of the contract (“Software Agreement”) regarding the ordering of the software application (“Crashwise App”).
1.2 Within the scope agreed in the Software Agreement, Crashwise provides the Customer with the Crashwise App as a digital complete solution for professional and structured recording of data in road traffic accidents and motor vehicle damage (“Service”), exclusively under the following conditions for use. Use is carried out by persons authorized by the Customer (e.g., employees, drivers) (“Users”).
1.3 Crashwise’s offer is non-binding. The contract is concluded by written order confirmation by Crashwise or by the initial provision of access to the Crashwise App.
1.4 The GTC also apply to future transactions between the Parties regarding the provision and making available of software.
1.5 The Customer’s terms and conditions, in whole or in part deviating from these, are not recognized. This also applies if Crashwise provides services while aware of the Customer’s deviating terms and conditions.
2. SCOPE OF SERVICES
2.1 The Crashwise App within the meaning of these GTC is a computer program within the meaning of Section 40a of the Austrian Copyright Act, which is distributed as standard software or developed or adapted individually for the Customer, for use on, operation of, or control of electronic devices and/or electronic systems.
2.2 Crashwise’s Service includes providing the Crashwise App for iOS and Android. The app offers a digital assistant guiding the User step by step through the documentation of accident data. This includes, among other things, capturing photos, videos, location data, and vehicle-related information.
2.3 A standardized report can be generated from the recorded data.
2.4 The Crashwise App is purely a documentation tool. The Service expressly does not include legal advice, no guarantee regarding the outcome of claims handling, and does not replace any statutory reporting obligations (e.g., reporting to the police), if applicable.
2.5 Crashwise is entitled to change, at its discretion, the technology and infrastructure used to provide the Service, as long as this does not lead to any material impairment of the agreed Service.
3. UPDATES
3.1 Crashwise may update and improve the Crashwise App at any time (“Updates”). Updates include the correction of software errors as well as minor improvements and/or extensions of the Crashwise App, as well as the implementation of new options and features of the Crashwise App, an expanded scope of services and functions, and other changes.
3.2 It is at Crashwise’s sole discretion whether and at what intervals Updates are provided.
4. CUSTOMER’S DUTIES TO COOPERATE AND PROVIDE
4.1 The Customer is responsible for instructing its Users in the proper and safe use of the Crashwise App.
4.2 The Customer shall ensure that its Users use the Crashwise App only in compliance with applicable traffic regulations and do not place themselves in danger at any time during data capture.
4.3 The Customer bears sole responsibility for ensuring that the data captured and uploaded by its Users (in particular photos, videos, and statements by third parties) complies with data protection and personality rights laws.
4.4 The Customer is responsible for the secure storage of the access credentials provided to it and/or its Users. The Customer shall take appropriate precautions against unauthorized access.
4.5 The Customer is obliged to notify Crashwise immediately of any misuse of access credentials or the Crashwise App that becomes known to it, as well as any security breach (e.g., unauthorized access to data).
4.6 Backing up the data and reports captured by the Customer and/or its Users is the Customer’s responsibility. Crashwise does not serve as the Customer’s primary data archive.
4.7 The Customer declares that its use of the Crashwise App does not conflict with any laws and regulations applicable to it. The Customer acknowledges that it has an independent duty to comply with all laws applicable to it.
4.8 The Customer is responsible for ensuring that its Users have the necessary technical requirements for using the Crashwise App. This includes, in particular, providing suitable end devices with a functioning camera, GPS reception, Wi-Fi or mobile internet connection, and compatible operating systems (iOS, Android).
5. RIGHTS OF USE
5.1 Crashwise retains unrestricted and exclusive ownership of the Crashwise App, the algorithms, and the design, and furthermore reserves all rights, claims, entitlements, and all intellectual property rights in the Crashwise App (including Updates).
5.2 “Intellectual Property” with respect to the Crashwise App means all industrial and intellectual property rights, including copyrights, trademark rights, trade secrets, patents, know-how, and other proprietary rights that must be observed or enforced worldwide under applicable laws in any jurisdiction, as well as all moral rights.
5.3 For the term of the contract, Crashwise grants the Customer a non-exclusive, non-transferable, and non-sublicensable right to use the Crashwise App for its own business purposes within the agreed scope. In particular, the Customer is not entitled to: (i) modify, copy, reproduce, or make the Crashwise App available to third parties, unless expressly permitted; (ii) reverse engineer, decompile, or disassemble the Crashwise App or parts thereof; (iii) access the Crashwise App with the intention of using it to develop a commercial product or any corresponding Crashwise-type app of any kind; (iv) copy features, functions, interfaces, or graphics of the Crashwise App or parts thereof; (v) use the Crashwise App in a manner that exceeds the scope of use permitted under this contract; (vi) use the Crashwise App for unlawful purposes or in a manner that infringes third-party rights.
5.4 The Customer’s use of the Crashwise App is not exclusive; Crashwise is entitled to use the App itself and make it available to other customers. The Crashwise App is not intended exclusively for one customer and is not customized individually for that customer.
6. TERM AND TERMINATION
6.1 The contract is concluded for an indefinite period unless a minimum term is agreed in writing.
6.2 The contract may be terminated by either Party in writing with three months’ notice to the end of a calendar year.
6.3 The right to extraordinary termination for good cause remains unaffected. Good cause exists in particular if the other contracting party materially breaches essential contractual obligations despite a reminder and the setting of a reasonable grace period, or if the prerequisites for providing or using the Service permanently cease to exist.
6.4 As of the effective date of termination, the Customer’s right of use pursuant to Section 5 of the Crashwise App expires. Data that has already been anonymized remains in Crashwise’s data pool.
6.5 As of the effective date of termination, the Customer shall immediately cease access to and further use of the Crashwise App and return the Crashwise App, including all provided data, to Crashwise or verifiably destroy it. Termination does not release the Customer from its obligation to pay fees that accrue up to the effective date of termination or become due before that date. After expiry of the Software Agreement, the Customer is no longer entitled to continue using the Crashwise App and must promptly uninstall the Crashwise App, including all confidential information received within the scope of this contract (unless otherwise required by law).
7. FORCE MAJEURE
7.1 Unforeseeable, unavoidable events outside Crashwise’s control—especially natural disasters, war, unrest, official measures, or other force majeure events and their direct consequences—release Crashwise, for the duration of the event and to the extent of its effects, from the obligation to provide the Crashwise App and from hotline support for the Customer. Crashwise is obliged to inform the Customer immediately as soon as it becomes aware of the event.
7.2 In the event of a long-term prevention of performance of the Software Agreement extending beyond a period of 14 days, cessation of payments, or the opening of insolvency proceedings over the Customer’s assets, Crashwise is entitled to withdraw from the Software Agreement.
8. AVAILABILITY
8.1 Crashwise undertakes to ensure monthly availability of the Crashwise App of at least 95% on an annual average.
8.2 Scheduled maintenance work necessary to maintain or improve operation of the Crashwise App is excluded from the availability calculation. Where possible, Crashwise will carry out such maintenance outside regular business hours and will inform the Customer at least 12 hours in advance of scope and duration.
8.3 Availability is also not affected by circumstances outside Crashwise’s control, in particular: (i) failures of telecommunications networks or the internet; (ii) malfunctions of the Customer’s or its Users’ hardware or software; (iii) operating system incompatibilities; (iv) force majeure events pursuant to Section 7.
9. CONFIDENTIALITY
9.1 “Confidential Information” means the Crashwise App in any form as well as Crashwise’s business and/or technical information, including but not limited to all information relating to software plans, designs, costs, prices and names, as well as finances, marketing plans, business opportunities, personnel, research, development and know-how, as well as personal data.
9.2 The Customer is not entitled to disclose Crashwise’s Confidential Information to third parties who are not party to this contract, nor to use it for purposes that are not the subject of this contract, unless Crashwise has previously agreed in writing or such action is required by law. The Customer undertakes to protect Crashwise’s Confidential Information to the same extent as it protects its own confidential information of comparable nature.
9.3 If a Party is required by law to disclose Confidential Information of the other Party, it shall inform the other Party immediately in advance of this circumstance, insofar as legally permissible.
10. DATA PROTECTION
10.1 For performance of the contract, Crashwise processes Customer data (e.g., name, company affiliation, company register number, contact person, address, bank details, VAT ID number and other personal data necessary for contract performance). This data is collected, stored, and processed in a structured and/or automation-supported manner for the purpose of carrying out pre-contractual measures and contract performance.
10.2 In the relationship between Crashwise and the Customer, the Customer is the “controller” under data protection law (pursuant to Art. 4(7) GDPR) for all personal data that its Users collect via the App. The Customer is responsible for compliance with the GDPR, in particular for the lawfulness of data collection.
10.3 Crashwise acts purely as a software provider. Personal data is processed and stored only on behalf of and under the control of the Customer. Crashwise does not access such data in identifiable form.
10.4 To the extent Crashwise processes personal data on behalf of the Customer in the course of providing the Service, Crashwise acts as a processor pursuant to Art. 28 GDPR. The Parties undertake to conclude a separate data processing agreement (DPA).
10.5 Crashwise does not access personal data processed via the App on behalf of the Customer in identifiable form unless this is strictly necessary to provide the service or to fulfill legal obligations and is contractually regulated.
10.6 The Customer grants Crashwise the free-of-charge, irrevocable, and unlimited right in time to collect, store, and use all data generated through use of the App in anonymized form (i.e., without reference to persons or the Customer) in a structured and/or automation-supported manner for purposes of analysis, improving road safety, and enriching a data pool.
11. AUDITS
11.1 To verify whether the Customer complies with the provisions of this contract, Crashwise or a third party appointed by Crashwise is entitled, without observing a notice period, to review the Customer’s use of the Crashwise App to the required extent via remote access (“Audit”).
11.2 The Customer shall reimburse Crashwise or the commissioned third party for the reasonable costs of conducting the Audit if the Audit reveals a breach of this contract.
12. FEES, PAYMENT
12.1 The amount of remuneration and the applicable pricing model (e.g., monthly or annual license fee, user- or volume-based billing) are governed by the individual offer and/or the contractual agreement between Crashwise and the Customer.
12.2 Unless otherwise agreed, Crashwise’s invoices are due 14 days after receipt of the invoice.
12.3 Payment may be made using the payment methods agreed in the offer or made available by Crashwise (e.g., SEPA direct debit, credit card, bank transfer).
12.4 In the event of default in payment by the Customer, Crashwise is entitled to claim default interest of 9.2 percentage points above the respective base interest rate per annum. In addition, the Customer is obliged to reimburse all reminder and collection costs necessary for appropriate legal enforcement. Furthermore, in the event of default, Crashwise is entitled to temporarily block or restrict access to the Crashwise App until all due amounts have been paid. The right to extraordinary termination pursuant to Section 6 remains unaffected.
12.5 Crashwise is entitled to unilaterally adjust the agreed remuneration. Crashwise will inform the Customer in writing (e.g., by email) at least six weeks before a price adjustment takes effect. If the Customer does not agree with the price adjustment, it is entitled to terminate the contract extraordinarily within four weeks of receipt of the notice of price adjustment, with effect as of the date the price adjustment takes effect. If the Customer does not object within the deadline, the price adjustment shall be deemed accepted.
13. WARRANTY
13.1 Warranty requires that the Customer uses the most recent version of the Crashwise App and has installed all available Updates. No warranty claim exists if the Customer uses an outdated version of the Crashwise App or required Updates have not been installed.
13.2 Crashwise warrants that, for the duration of the contract, the App substantially fulfills the functions described in the scope of services. A defect requiring remedy exists if the App exhibits behavior deviating from the service description, provided the Crashwise App is used in accordance with the respective installation requirements and under the applicable operating conditions.
13.3 During the term of the contract, the Customer must report any defects in writing to Crashwise without undue delay after becoming aware of them, describing the alleged defects in detail. Properly reported defects will be remedied by Crashwise within a reasonable period. At its discretion, Crashwise may decide whether to remedy a defect by workaround, repair, or replacement.
13.4 No warranty exists for software that the Customer or third parties have modified without Crashwise’s prior written consent, even if the error occurs in an unmodified part.
13.5 The Customer is solely responsible for backing up its data; Crashwise provides no warranty in this respect.
13.6 Except for the warranties expressly granted in these GTC, Crashwise hereby excludes all express or implied assurances, warranties, and conditions relating to the Crashwise App, in particular regarding suitability for a particular purpose. Crashwise does not warrant that the Crashwise App is error-free or operates without interruptions or is free of third-party rights. Crashwise does not warrant that all software errors can be remedied. The Customer alone is responsible for selecting and using the Crashwise App.
13.7 If, while warranty applies, the Crashwise App does not conform to the specifications in a manner that disrupts functionality and Crashwise is unable—despite sustained efforts—within a reasonable period to restore conformity with the specifications, Crashwise has the right to terminate the Software Agreement.
14. LIABILITY
14.1 Crashwise’s contractual and statutory liability for damage caused by slight or gross negligence is excluded. In no case shall Crashwise be liable for indirect or consequential damages, pure financial loss, lost profits, loss of income, unrealized savings, business interruptions, contractual claims of third parties, or loss of data.
14.2 In any case, Crashwise’s liability is limited in amount to the sum of the license fees paid by the Customer in the twelve months prior to the occurrence of the damaging event, but not exceeding EUR 25,000.00 per damage event.
14.3 Any claim for damages is excluded in the event of non-compliance with any conditions for installation, implementation, and use, or official approval requirements, if applicable.
14.4 The Customer is obliged to take reasonable measures to prevent and mitigate damages. The Customer is obliged, upon first request, to indemnify and hold Crashwise harmless from and against any and all third-party claims based on the following: (i) use of the Crashwise App by the Customer not in accordance with the contract; (ii) breach of applicable data protection provisions by the Customer; (iii) (alleged) infringement of third-party intellectual property rights due to content uploaded by the Customer into the Crashwise App or used in connection therewith; (iv) other breaches of duty by the Customer. This also includes the reasonable costs of necessary legal defense of Crashwise.
14.5 Crashwise assumes no liability for the substantive accuracy or completeness of the data captured by the User, nor for disruptions outside Crashwise’s sphere of influence (e.g., failure of telecommunications networks, GPS inaccuracies, errors in the Customer’s hardware or operating systems).
15. AMENDMENT OF THE GTC
15.1 Crashwise is entitled to amend these GTC unilaterally at any time, with effect for existing contracts, without stating reasons or obtaining the Customer’s consent. Crashwise will inform the Customer of this in an appropriate manner and indicate where the current version can be viewed.
15.2 Crashwise will inform the Customer of the changes (e.g., by email) at least six weeks before the amended GTC take effect.
15.3 If the Customer does not agree with the changes, it is entitled to terminate the Software Agreement extraordinarily within four weeks of receipt of the notice of the GTC amendment, with effect as of the date the changes take effect. If the Customer does not object within the deadline, the new GTC shall be deemed accepted and become part of the contract.
16. FINAL PROVISIONS
16.1 All notices under the Software Agreement and/or the GTC must be transmitted at least in text form (written form, fax, or email), unless provisions of the Software Agreement and/or the GTC expressly require another form. Furthermore, Crashwise is entitled to send notices to the Customer directly via the Crashwise App.
16.2 Crashwise may engage subcontractors to provide the Crashwise App.
16.3 The invalidity, illegality, or unenforceability of any provision of this contract shall not affect the remaining provisions of this contract. The invalid or unenforceable provision shall be replaced by a valid or enforceable provision that comes as close as possible to the economic intent of the invalid or unenforceable provision; the same applies accordingly to any gaps in this contract.
16.4 Crashwise’s failure to enforce any provision of these GTC does not constitute a waiver thereof and in no way impairs the right to enforce such provision at a later time.
16.5 These GTC together with the Software Agreement constitute the entire agreement between the Parties regarding the subject matter of these GTC and/or the respective Software Agreement and replace all other agreements and understandings.
16.6 Austrian law shall apply exclusively, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and the referral rules of private international law.
16.7 The exclusive place of jurisdiction for disputes in connection with this contract is the court with subject-matter jurisdiction at Crashwise’s registered seat.
