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SaaS Services - Complify

Release: November 2023

1. Definitions

1.1. OSM-S refers to Objective Security Management Solutions GmbH, registered in Vienna, Austria:

1.1.1. Company Number: FN 477601f

1.1.2. VAT Number: ATU72579159

1.1.3. Commercial Court: Vienna, Austria.

1.1.4. Registered Office: Wipplingerstrasse 33 / Top. 3.OG | 1010 Vienna | Austria

1.2. “Software” refers to OSM-S’s COMPLIFY software accessible through:

1.2.1. https://complify.cloud

1.3. OSM-S Data Protection is defined and available under:

1.3.1. https://complify.cloud/DataProtection

1.4. “Customer” refers to the entity using the Software.

1.5. “Customer Content” is any content uploaded by the Customer.

1.6. “Confidential Information” means as defined in Condition 10.

1.7. “Errors” pertain to the Software’s failure to function according to the documentation.

1.8. “Fee” is the payment for Software access and use.

1.9. “IP Rights” cover various intellectual property aspects such as:

1.9.1. Patents, trademarks, registered designs (application for registration of the same, or the right to apply for registration of the same), copyrights or related rights, database rights, design rights, rights in trade, business or domain names, rights in inventions, rights in confidential information or know-how or any similar of equivalent rights in any part of the world.

1.10. “Term” is either the 12-month duration or the 1-month duration (depending on which access package the Customer chooses) from the Start Date.

1.11. “Support” entails the assistance detailed in Condition 6.

1.12. “Working Day” is a non-holiday weekday in Austria.

1.13. “Working Hours” are Monday to Friday, 9-4pm CET.

1.14. “Including” introduces illustrative phrases, not limiting language.

1.15. Singular includes plural; plural includes singular.

1.16. Headings don’t impact interpretation.

1.17. References to Clauses are references to this document’s clauses.

1.18. A right isn’t exclusive unless stated; its exercise doesn’t affect other rights.


2. Summary

By using the Software, you are agreeing to abide by the terms and conditions outlined in this document. If you disagree with these terms, please refrain from using the Software. For any inquiries, contact us at [email protected]. The terms may be updated periodically, and the latest version becomes effective upon accessibility. While we may send updates via email, it’s your responsibility to regularly review the terms for any changes.


3. License

3.1. Subject to these Conditions, OSM-S grants the Customer a non-exclusive, non-transferable license to access and use the Software for internal business purposes.

3.2. Following registration, usage via web browsers and REST API calls on the domains listed under Clause: 1.2.1 is allowed; other access methods are prohibited.

3.3. The Customer is responsible for safeguarding access credentials’ confidentiality. OSM-S bears no responsibility for losses resulting from breaches.

3.4. The Customer must adhere to OSM-S’s instructions concerning the Software.

3.5. The Customer must not generate or facilitate the generation of derivative works by third parties; utilize tools to test the Software or its environment for functional bugs or security issues or hinder proper function of the Software; access any part of the software in order to engage in or create a Software or Product in competition to the Software.


4. Software Availability

4.1. OSM-S strives for continuous Software availability but unintended and/or planned interruptions can occur. This includes instances such as:

Scheduled maintenance

Upgrades

Emergency repairs

Failure of hosting services

Failure of telecommunication services

Equipment failure

Etc.

4.2. OSM-S strives to addresses faults promptly and customers should report faults and errors as soon as possible to [email protected].

4.3. OSM-S can remove content and/or features without notice, refunding pro-rata Fees.


5. Customer Content

5.1. Customer Content must:

5.1.1. comply with all applicable laws, 

5.1.2. not promote harm in any way type or form, 

5.1.3. not promote illegal activities, 

5.1.4. infringe on third party rights including IP Rights,

5.1.5. include any personal data without a lawful basis to do so,

5.1.6. and is always subject to the OSM-S Data Protection Declaration.

5.2. OSM-S is not responsible and accepts no liability for Customer Content; the Customer indemnifies OSM-S for any costs, claims, losses, expenses, damages and/or liabilities resulting from breaches of Clause 5.1.



6. Support

Subject to Fee payment (subscription to one of the COMPLIFY subscription packages offered by OSM-S), OSM-S offers Support Services during Working Hours:

6.1. Software Errors: OSM-S corrects Errors as soon as reasonably possible.

6.1.1. Customers should report Errors as soon as possible via [email protected].

6.1.2. Customers should include as many details on how and when and where in the Software the Error occurred.

6.1.3. OSM-S tries to correct Errors as soon as possible via updates and/or patches, however depending on the complexity and impact of the reported Errors, resolutions may take weeks or months.

6.2. Support Requests: The Customers are entitled to reporting an unlimited number of Support Requests pertaining to:

Errors within the Software;

Issues with Access to the Software;

Usage of the Software.

OSM-S shall respond to those inquiries within a reasonable timeframe.


7. Support Exclusions

OSM-S is under no obligation to prove Support for the following:

7.1. Any Software or Service other than COMPLIFY.

7.2. Users of the Software who are facilitating the “Basic” (free of charge) model.

7.3. Persons who try to use the Software unauthorized and/or fraudulent.

7.4. Usage of any Software other than standard web browsers for accessing and/or communicating with the Software. 

7.5. Certifications, applications for certifications, any types of audits, policies, processes, standards or any other type of legislative support. 


8. Fees 

8.1. The Customer, or the Reseller where relevant, must pay the Fee to OSM-S, which includes all applicable taxes. Support Services as specified in these terms will not be provided until OSM-S confirms receipt of the Fee in full.

8.2. If payments are not made on time, OSM-S may charge interest on the overdue amount at an annual rate of 8% from the due date until payment is received in full. Additionally, OSM-S can suspend access to the Software and Support Services until all outstanding fees and accrued interest are paid.


9. Intellectual Property Rights

9.1. The Customer acknowledges that all intellectual property rights in the Software and Support Services are and shall remain with OSM-S; no ownership of these rights is transferred to the Customer under this agreement.

9.2. The Customer is obliged to inform OSM-S immediately of any allegations that the Software and Support Services infringe third-party intellectual property rights. The Customer must not acknowledge any liability or settle any claims without OSM-S’s written consent and is required to cooperate fully with OSM-S and its advisors in managing such claims.

9.3. Continued, the Customer must allow OSM-S to take over the defense and settlement of the claim if requested and also minimize any potential losses, which may include ceasing the use of the Software and Support Services upon OSM-S’s direction.

9.4. In response to any infringement notice, OSM-S will bear the cost of securing the right for the Customer to continue using the Software and Support Services or alter or substitute the infringing components to prevent any further infringement issues.


10. Confidential Information

10.1. “Confidential Information” encompasses all forms of data related to the business dealings, products, financials, strategic plans, and trade secrets that one party (the Disclosing Party) shares with the other (the Receiving Party), regardless of the medium in which it is conveyed.

10.2. The Receiving Party is obligated to protect the confidentiality of this information, using or disclosing it solely for fulfilling its duties and rights as outlined in the agreement. This protection must also be enforced by the Receiving Party’s employees.

10.3. These confidentiality obligations do not extend to information that is already public knowledge through no fault of the Receiving Party, already known or independently obtained by the Receiving Party without a breach of confidentiality, or information that must be disclosed due to legal or regulatory requirements.


11. Data Protection

11.1. Definitions within this section are aligned with those in the Data Protection Legislation, encompassing terms like “Controller,” “Processor,” and “Personal Data.”

11.2. “Data Protection Legislation” refers to all laws and regulations relevant to personal data usage and electronic communications privacy, specifically EU data protection laws and the General Data Protection Regulation (GDPR) as it applies in the EU.

11.3. “Personal Data” denotes the information the Customer uploads to the Software.

11.4. Both parties must adhere to the Data Protection Legislation in fulfilling their contractual obligations.

11.5. OSM-S is designated as the processor of any Personal Data, with the Customer acting as the controller.

11.6. The Customer guarantees that it has the legal right to share the Personal Data with OSM-S and will cover any costs or damages arising from a breach of this assurance.

11.7. OSM-S’s commitments include processing Personal Data solely for providing Software access or as instructed by the Customer, implementing measures to protect against unauthorized processing or data loss, deleting or returning Personal Data upon termination of services, ensuring confidentiality within its team, and complying with Data Protection Legislation when engaging sub-processors.

11.8. Continued, OSM-S will support the Customer in handling data subject access requests, enabling individuals’ data rights, and fulfilling legal obligations concerning data security, breach notifications, and impact assessments.


12. Warranties

12.1. Both parties affirm that they have the necessary rights, power, and authority to agree to these Conditions and will fulfill all their obligations without breaching any other contracts they are party to.

12.2. OSM-S commits to providing access to the Software and Support Services competently and with due diligence.

12.3. The Customer states that it is not a consumer but a business entity and acknowledges that consumer protection laws do not apply to this agreement.

12.4. The Customer also acknowledges that it has not based its decision to enter into these Conditions on any oral representations or promotional materials from OSM-S, and it believes the Software and Support Services to be suitable for its purposes.


13. Disclaimer and Limit of Liability

13.1. The Software and Support Services are provided “as is” with all implied warranties and conditions, including but not limited to accuracy, completeness, quality, performance, fitness for a particular purpose, and non-infringement, being excluded to the fullest extent the law allows.

13.2. OSM-S specifically does not guarantee that the Software or Support Services will ensure the Customer’s compliance with all applicable regulatory or legal requirements related to their business operations.

13.3. OSM-S’s liability for any economic loss, loss of reputation or goodwill, data loss, or any special, indirect, or consequential loss resulting from the use of the Software and Support Services is excluded, except as provided in condition 12.5.

13.4. OSM-S’s total liability to the Customer in connection with the Software and Support Services is limited to the amount of fees OSM-S received from the Customer for the services during the 12 months preceding the claim.

14. Termination 

14.1. OSM-S may immediately terminate the agreement without refund if the Customer violates any terms, notifying via the Customer’s provided email. Conversely, the Customer can terminate at any time by notifying OSM-S, but will only be eligible for a refund if the notice is given within 5 working days of the initial payment.


15. Force Majeure

15.1. An event of Force Majeure includes any circumstances outside a party’s reasonable control, such as acts of war, terrorism, natural disasters, utility failures, or government orders, which can impede contractual obligations.

15.2. Obligations under the agreement are suspended for any party affected by Force Majeure without liability for as long as the event persists, and either party may terminate the agreement if the Force Majeure event prevents, hinders, or delays performance for more than 10 days.


16. Governing Law

16.1. The Conditions are subject to Austrian and EU law and will be interpreted accordingly. The parties agree to the exclusive jurisdiction of Austrian courts for any disputes arising from these Conditions, although this does not restrict the parties from seeking urgent or interim relief from courts with jurisdiction in cases related to proceedings in Austria.


17. Miscellaneous 

17.1. These Conditions constitute the complete agreement between the parties on this subject, overriding all previous discussions and agreements, whether verbal or in writing.

17.2. The Customer is prohibited from transferring its rights or obligations under these Conditions to any third party without OSM-S’s explicit written approval. Any unapproved assignment will be considered void. Enforcing any part of these Conditions does not mean waiving any other part, and if any clause is deemed unenforceable, it will be modified to reflect the parties’ intent as closely as possible while the rest of the agreement remains in effect.

17.3. OSM-S reserves the right to subcontract the Support Services as needed, and these Conditions should not be interpreted as creating any agency, partnership, or joint venture between the parties. Neither party has the authority to bind the other in any way.


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