Table of contents
- Subscription and conclusion of the contract
- Rights of use and subject matter of the contract
- Warranty and liability
- Duties of the User
- Term and termination
1.2 By subscribing to the SmartPay App as defined in Clause 3. the User agrees to the applicability of these GTU and a contract on use of the SmartPay App (hereinafter Contract) will be concluded between cafe+co and the User as defined in Clause 4.
1.3 Only Users who have attained the age of 18 shall be authorised to use the SmartPay App. This shall also apply to participation in the bonus programme.
2.1 cafe+co provides software for mobile terminal devices (in connection with these GTU referred to as the SmartPay App).
2.2 When using the SmartPay App on devices for payments in the territory of the Republic of Austria, SmartPay App Users will collect so-called “coffee points” (hereinafter Coffee Points). “Payment by means of the SmartPay App” means, in particular, buying products from a vending machine using a credit balance account (a so-called “digital wallet”) as the means of payment, which has to be topped up by the User accordingly. Usually a VISA or Mastercard credit card will be used as the means of payment for the “top-up transaction”. However, cafe+co reserves the right to add other payment methods later on. The Coffee Points will be saved in the SmartPay App and may then be used by the User exclusively for offers (hereinafter referred to as an Offer and jointly as the Offers) which were published via the SmartPay App in connection with the cafe+co bonus programme (hereinafter Bonus Programme), provided that the User has subscribed to the Bonus Programme. Such use of the Coffee Points under the Bonus Programme by means of the SmartPay App shall be subject to the applicable terms and conditions of the relevant provider (hereinafter Provider) of the relevant Offer. Any cash refund for collected Coffee Points shall be excluded.
2.3 Coffee Points shall become forfeited after two (2) years at the end of the relevant quarter year. This period of two (2) years shall be calculated from receipt of the relevant Coffee Points. Users will be notified of forfeiture of their relevant Coffee Points at least 30 days prior to the end of the relevant quarter year.
2.4 If a User has subscribed to the Bonus Programme, s/he shall in any case hold 50 Coffee Points despite forfeiture as defined in Clause 2.3.
2.5 For digital payment instruments and for conclusion of contracts with the relevant Providers separate contracts shall be concluded between the User and the relevant payment service provider and/or Providers which regulate the legal relationship between the User and the payment service provider and/or Provider.
3. SUBSCRIPTION AND CONCLUSION OF THE CONTRACT
3.1 The prerequisites for using the SmartPay App as defined in Clause 4 shall be:
3.1.1 downloading and installing the SmartPay App on the mobile terminal device of the User, which possesses one of the following operating systems: Apple iOS Version 13 or higher or Android Version 8 of higher (technical state of the art: January 2021);
3.1.2 registration of the User with the SmartPay App as defined in Clause 3.3.
3.2 In this connection it is expressly pointed out that the technical minimum requirements for use of the SmartPay App may be subject to change in the future. In particular if certain equipment series or versions of operating systems are no longer supported by the manufacturer or if software adaptations made by the equipment manufacturers also lead to a change in the functions/features of the SmartPay App. In that case, however, Users will be notified of the necessity to make an update in due time.
3.3 Registration for the SmartPay App is done as follows:
3.3.1 setting up a user account by providing an email address and a password. In addition, the option to use login data of a third-party account, e.g. Apple, Google or Facebook, is provided. Additional information may be provided on a voluntary basis but may be required for participation in prize draws and/or the Bonus Programme of cafe+co;
3.3.2 consent of the User to the GTU, the most-recent version of which is available for inspection and download in the SmartPay App and on cafe+co’s website at
https://www.cafeplusco.com/smartpay-backupen-23-12-2020/terms-of-use-smartpay-app/?lang=en both before and after conclusion of the Contract;
3.3.3 consent of the User to the data protection provisions of cafe+co (Data Protection Policy), the most-recent version of which is available for inspection and download in the SmartPay App and on cafe+co’s website at https://www.cafeplusco.com/smartpay/privacy-policy-smartpay-app/?lang=en before and after conclusion of the Contract;
3.3.4 consent of the User that changes to the GTU and/or Data Protection Policy may be notified by email and that such changes apply to the User upon acceptance of the new GTU and/or Data Protection Policy.
3.4 cafe+co shall be entitled but not obliged to check User registrations and to reject the same for important reasons (e.g. in the case of obviously incorrect information provided by the User).
3.5 The relevant data shall be provided by the User completely and accurately. Subsequent changes to User details shall immediately be made by the Users themselves in their user account.
3.6 Users will be notified of successfully completed registration by confirmation sent to the email address most recently advised.
3.7 The Contract on use of the SmartPay App will be concluded in a legally effective manner between cafe+co and the User upon receipt of the confirmation referred to in Clause 3.6.
3.8 The user account is a personal account and may not be transferred to third parties.
3.9 User data will be processed and stored by cafe+co itself or a processor commissioned by cafe+co and will in no case be passed on to third parties. For more details please see the Data Protection Policy, which is available for download via cafe+co’s website.
4. RIGHTS OF USE AND SUBJECT MATTER OF THE CONTRACT
4.1 The SmartPay App will be available for use upon receipt of the email confirmation from cafe+co of successfully completed registration as defined in Clause 3.6.
4.2 Thereafter, Users will be able to
4.2.1 change their data in the relevant User profile of the SmartPay App;
4.2.2 make contactless and cashless payments at machines of cafe+co in the Republic of Austria;
4.2.3 add, delete, display and use payment methods in the SmartPay App (to the extent available);
4.2.4 collect Coffee Points when using the SmartPay App for payment and use the Coffee Points under the Bonus Programme, provided that the User has also subscribed to the same.
4.3 In specific cases cafe+co may “credit” additional Coffee Points (e.g. in the form of a “start credit balance”), but Users shall have no right to claim the same.
4.4 Users shall be granted a non-exclusive, non-transferable and non-sublicensable right to use the SmartPay App version applicable from time to time (i.e. including updates) in conformity with these GTU for their own, non-commercial and non-business purposes, which shall be limited to the term of this Contract.
4.5 Users shall not be entitled to change, copy, publish, reproduce the SmartPay App or to process or exploit it in any way whatsoever; otherwise cafe+co may assert claims, including but not limited to claims for damages or cease and desist claims.
4.6 Any use of the SmartPay App for purposes other than those stipulated in these GTU shall not be permitted. In the case of such unauthorised use or unauthorised use by third parties cafe+co shall be entitled to assert claims for damages and cease and desist claims.
Costs incurred in connection with the installation and use of the SmartPay App (e.g. costs for mobile data connections charged by the relevant network operator) shall be borne by the User.
6. WARRANTY AND LIABILITY
6.1 The statutory regulations for remedies under warranty shall apply.
6.2 cafe+co does not warrant that the SmartPay App can be used without disruptions, without errors or safely or that the Offers of the Providers shown in the SmartPay App and/or Bonus Programme are accurate and complete.
6.3 cafe+co assumes no liability for contents of links to external websites in the SmartPay App (such as, e.g., links to Provider websites). The relevant Providers are responsible and liable for the contents of external websites at all times.
6.4 cafe+co shall not be liable for the content of the relevant Offer published by the relevant Provider in the SmartPay App and shall not be obliged to check the same. The contract on an Offer shall exclusively be concluded between the Provider and the User; cafe+co shall be under no obligation in connection with the same.
6.5 cafe+co shall not be liable for any damage caused by improper or unauthorised use of the SmartPay App or other harmful conduct by the User or third parties.
6.6 cafe+co shall not be liable for temporary failure of the SmartPay App due to technical faults, maintenance work or other reasons (in particular due to force majeure) or if functions/features of the SmartPay App are temporarily compromised.
6.7 Unless this violates mandatory law and unless regulated otherwise in these GTU, cafe+co shall only be liable for damage caused by cafe+co by gross negligence or wilful intent. However, this limitation of liability shall not apply to compensation for personal injuries.
7. DUTIES OF THE USER
7.1 The User undertakes in particular:
7.1.1 to use the SmartPay App lawfully and in conformity with the Contract in compliance with the GTU;
7.1.2 to protect their login data for the SmartPay App from unauthorised use by third parties and to keep their password secret;
7.1.3 to update their contact details in the SmartPay App settings immediately in the case of changes.
8. TERM AND TERMINATION
8.1 The Contract shall commence upon completion of the registration process as defined in Clause 3 and shall be concluded for an indefinite period of time.
8.2 The User and cafe+co may terminate the Contract by notice at any time. Notice of termination may be given by letter or email to the (email) address most recently advised to the other party. Termination shall become legally effective upon receipt by the other party.
Upon legal effectiveness of termination of the Contract Coffee Points collected by the User which have not been used shall become forfeited automatically. This shall apply notwithstanding the forfeiture provisions of Clauses 2.3 and 2.4 above.
In the case of termination of the contract any credit that may be available in the credit balance account will be refunded to a bank account of the User. The prerequisite for such a refund is that the form made available by cafe+co has been completed and signed and returned to cafe+co including a copy of a valid photo ID.
8.3 The User may delete the SmartPay App at any time. However, deletion of the SmartPay App will not lead to termination of the Contract and, thus, in particular neither to a refund of the credit balance, if any, nor automatic forfeiture of Coffee Points. Rather, the credit balance and the Coffee Point credits will remain in the relevant user account for the time being.
8.4 If there are no movements in the User’s credit balance account for more than twelve months, cafe+co expressly reserves the right to withhold a reasonable administration fee after timely notice. In this connection “movement in a credit balance account” means, in particular, topping-up of the means of payment (“digital wallet”) and buying products using the means of payment.
8.5 If a user account the credit balance account of which has no credit balance is not used for more than 36 months, cafe+co expressly reserves the right to deactivate the user account concerned (including the related credit balance account having no credit balance) after timely notice. In this connection “use” of a user account means, in particular, use of the functions/features made available in the SmartPay App.
9.1 The language of the Contract shall be German.
9.2 All statements may be made with legal effect by letter or email to firstname.lastname@example.org, unless a different form is mandatorily prescribed by law or the GTU provide otherwise. No oral side agreements exist. The requirement of written form shall also apply to modifications or amendments, abolishments or a waiver of compliance with this Clause 9.2.
9.3 Austrian law shall apply exclusively and the rules of conflict of laws of private International Law (e.g. the Austrian Statute on Private International Law [IPRG], the Rome I Regulation, etc.) and the UN Convention on Contracts for the International Sale of Goods (UN Sales Law or UN CISG) shall be excluded.
9.4 Unless provided otherwise by mandatory law (e.g. provided that no mandatory consumer venue applies), the court having subject-matter jurisdiction over the First District of Vienna shall have jurisdiction over all legal disputes.
9.5 If any provision is or becomes ineffective, invalid or unenforceable, the effectiveness, validity or enforceability of all other provisions shall not be affected. In the case of such an ineffectiveness, invalidity or unenforceability the relevant provision shall be deemed replaced by a provision that comes as close as possible to the business result and is not ineffective, invalid or unenforceable. The same shall apply in the case of gaps.