General Terms & Conditions - valid from...

Dear Simplewish user,

we know that General Terms and Conditions (GTC) are long and are usually considered to be boring. Nevertheless it is really important for you to carefully read through the following regulations once. The GTC specifically describe the contractual relationship between you and Simplewish (i.e. your and Simplewish's rights and obligations).

The Simplewish website at www.simplewish.eu is operated by Simplewish GmbH, Graumanngasse 7b, 1150 Wien (hereinafter referred to as "Simplewish GmbH"). If somebody uses services of Simplewish, these General Terms and Conditions (hereinafter referred to as "GTC") apply exclusively.

  1. Subject matter of the contract

    Simplewish GmbH offers its users a possibility to organise or participate in joint presents via the Simplewish website, by email or use of social networks on the internet, such as Facebook. For this purpose the Organiser of a joint present (hereinafter referred to as "Organiser") invites his Facebook friends and/or the Recipient's friends (hereinafter referred to as "Recipient") to participate in a joint present via a Simplewish Account set up by him ("Simplewish Account"). By participating in a joint present he becomes a Donor (hereinafter referred to as "Donor"). The Organiser buys the joint present from a Dealer (hereinafter referred to as "Dealer") who co-operates with Simplewish GmbH.
    On the one hand, the services of Simplewish are limited to acting as intermediary between the Donors and the Organiser regarding the contract of donation and, on the other hand, to the intermediation of the purchase contract between the Organiser and the Dealer. The Donors pay their share of the present via the Simplewish GmbH website and thereby donate the same to the Organiser of the joint present. The Organiser receives those amounts from Simplewish GmbH in the form of a voucher of the Dealer selected. Conversion of the amounts paid in into a voucher of the Dealer is done by Simplewish GmbH on order of the Donor. Such order is placed by the Donors by paying the amount into the Simplewish Account. Dealers are enterprises that deliver goods and/or render services against presentation of a voucher by the Organiser for their own account. In the case the Donor and the Organiser are not the same person the Organiser finally gives the goods or the service to the Recipient. Simplewish GmbH thus acts as an intermediary and service provider and not as a Dealer or supplier of the joint present.

    Summary in other words: Simplewish makes it possible for you and your friends to organise joint presents, collect the amount needed for a joint present and order it from a Dealer.

  2. Services of Simplewish GmbH

    1. 2.1 Simplewish GmbH shall be responsible for operating the Simplewish platform and its services.
    2. 2.2 Simplewish GmbH shall process payments of the Donors upon their request, generate a voucher of the Dealer and forward the amounts paid in to the Dealer on the order of the Donor. As regards acquisition of the joint present the Dealer shall become the exclusive contractor of the Organiser.
    3. 2.3 Simplewish GmbH shall handle the payment of vouchers for the relevant Dealer with the Dealer's authorisation. Vouchers of the Dealer shall be paid by means of the payment methods listed on the Simplewish website and by the support of third-party service providers. Simplewish GmbH may exclude certain payment methods in specific cases.
    4. 2.4 Information provided by the Dealer regarding price, availability or quality of the products shall not be verified by Simplewish GmbH.
    5. 2.5 Simplewish GmbH shall endeavour to provide its services free of disturbances. Due to technical difficulties or maintenance work disturbances may, however, occur.

    Summary in other words: If you paid in the amount for the joint present via a Simplewish Account, we send a voucher of the Dealer selected by the Organisor (e.g. Amazon) to the latter and the Organisor then orders the joint present and pays with the voucher.

  3. Prerequisites for use

    1. 3.1 To be able to use the services of Simplewish GmbH as the Organiser of a joint present or as a Donor you are required to register on the Simplewish GmbH website. Registration is free of charge for all users.
    2. 3.2 Registration is exclusively reserved to individuals. In order to take part in a joint present the user needs to be of age. Simplewish GmbH reserves the right to examine personal data of users. Registrations with Simplewish GmbH are not transferable.
    3. 3.3 In order to use the services of Simplewish GmbH the user must agree to these GTC.
    4. 3.4 The user will receive a confirmation message as soon as Simplewish GmbH has accepted his user registration. Simplewish reserves the right to deny registrations without having to state reasons.
    5. 3.5 Upon successful completion of registration the user may use the services provided by Simplewish GmbH and, for instance, create his own joint present or take part in an existing one.
    6. 3.6 The user undertakes to provide true, up-to-date and complete information upon registration and to always keep such information up-to-date and accurate. The user further undertakes to keep the password selected by him secret and to inform Simplewish GmbH if he suspects unauthorised use of the user account. In addition, every user undertakes to immediately report any suspected misuse of a Simplewish Account to Simplewish GmbH.

    Summary in other words: To be able to use Siplewish you have to register with Simplewish and you shall not be a company. Please let us know if you suspect any misuse of Simplewish.

  4. Creating a joint present

    1. 4.1 To create a joint present the Organiser shall click on "Create GiftBox" on the Simplewish GmbH website. He selects a Dealer he would like to order the joint present from and drags the selected products into his Simplewish Account. The Organiser may determine priorities if several products are dragged into the Simplewish GiftBox. The total amount of payments results from the prices of the products selected. If the Organiser is no registered user yet he has to register then. The Organiser may then design his Simplewish GiftBox: he names it, generates a description, appoints the Receiver (himself or a third person), fixes a date by which contributions to the joint present may be made (a maximum of 180 days in the future) and he may upload photos. After the Organiser has furnished the information necessary for a joint present he invites third parties to take part in the joint present via Facebook and/or email. As long as the joint present is "active", each of the users invited to the active joint present may invite other users to participate. The Organiser may also pay money into the Simplewish GiftBox, which is, however, not necessary for creating a joint present.
    2. 4.2 Once enough money has been collected for purchasing the joint present selected, Simplewish GmbH will generate a voucher of the selected Dealer and inform the Organiser. The Organiser shall click on the "Collect Gifts" link and the link to the Dealer as well as the voucher code will be shown to him. The Organiser copies the voucher code and makes the purchase on the Dealer's website. All persons participating in the joint present will receive a message via email or Facebook that the Organiser has collected the contributions from the Simplewish GiftBox and may print a greeting card for the Recipient.
    3. 4.3 The joint present has a defined term (a maximum of 180 days after activation of a Simplewish Account) during which the joint present is active. In the case that after expiration of the term the amount collected is not sufficient for purchasing the joint present selected but exceeds 0 Euros, Simplewish GmbH will generate a voucher of the Dealer and inform the Organiser. The Organiser shall click on the "Collect Gifts" link and may then choose between two options: (a) He chooses an alternative product for which the amount collected is sufficient. The link to the Dealer selected and the voucher code will be shown to the Organiser. The Organiser shall copy the voucher code and make the purchase on the Dealer's website. (b) The Organiser chooses the voucher as the present and a voucher of the Dealer selected that may be printed or sent is shown to him. In both cases all persons participating in the joint present will receive a message via email or Facebook that the Organiser has collected the contributions from the Simplewish GiftBox and may print a greeting card.
    4. 4.4 The Organiser shall be responsible for using the money collected for the purpose stated by him and to cause dispatch or handover to the Receiver. The Organiser confirms that he will use the amount stated by him, which was collected by using the services of Simplewish GmbH, for purchasing the joint present. He confirms that he will be the contractor of the Dealer of the joint present selected and that he will assert guarantee claims, rights of rescission, rights of exchange, liability claims or other customer service inquiries, if any, directly vis-à-vis the respective Dealer. The Organiser shall not be entitled to assert the above rights or claims vis-à-vis Simplewish GmbH.

    Summary in other words: You have a maximum of 180 days time to collect the amount needed for the joint present. After expiry of the term of a Simplewish GiftBox or if the amount for the joint present has been collected, the Organisor receives a voucher of the selected Dealer. The Organisor is responsible for buying the joint present and handing it over to the Receiver.

  5. Participating in a joint present

    1. 5.1 A user who decides to take part in a joint present may directly contribute money to an active joint present if he was invited to the joint present by a Simplewish user.
    2. 5.2 Once the user has selected an active joint present and registered as user he may determine the amount of his contribution, select a payment provider and effect the payment. Depending on the payment provider selected, payment costs may arise for the Donor. Such costs will be shown to the Donor prior to confirmation of the payment. Upon successful completion of the payment process the amount contributed will be credited to the joint present and the Donor will receive a confirmation of the contribution made by him. The Donor may invite additional friends to participate in the joint present.
    3. 5.3 The Donor agrees that his contribution to the joint present will be given to the Organiser in the form of a voucher of the Dealer.
    4. 5.4 Principally, joint presents and contents of users are not reviewed by Simplewish GmbH as to their lawfulness, accuracy or completeness. Simplewish GmbH will not check whether the money collected is actually used by the Organiser in accordance with the purpose stated by the same at the time the joint present is created. Therefore, every Donor shall satisfy himself of the Organiser's identity in his own responsibility and directly contact the Organiser regarding use of the money collected and/or use of the voucher issued.

    Summary in other words: You can choose the amount you want to contribute to a joint present and you agree that the Organisor receives the voucher to buy the joint present. We are not liable that the Organisor uses the voucher for the reason he stated in the Simplewish GiftBox he created.

  6. Closing a joint present

    1. 6.1 The Simplewish GiftBox will be closed and inactive as soon as the Organiser has collected the voucher from the Simplewish GiftBox.
    2. 6.2 The closed Simplewish GiftBox will remain accessible for the Donors and the Organiser for at least thirty (30) days for information only. After expiration of that period Simplewish GmbH reserves the right to terminate accessibility of the joint present.

    Summary in other words: You can view closed joint presents for a minimum period of 30 days via the Simplewish Account. After this period expired the Simplewish GiftBox is not accessible anymore.

  7. Fees

    1. 7.1 Registration and use of Simplewish are free of charge for the Organiser, the Donors and the Recipient. The only fees that may be incurred by Simplewish users are the fees of the payment providers upon payment of their contribution into the Simplewish Account. Such fees will be shown to the user prior to confirmation of his payment.

    Summary in other words: You don’t have to pay any fee for the services rendered by Simplewish GmbH.

  8. Terms of payment

    1. 8.1 For making payments into the Simplewish GiftBox the Donor shall select a payment provider and follow the payment instructions on the payment pages. The amount paid in will be credited to the joint present.
    2. 8.2 The payment to Simplewish GmbH as the intermediary authorised by the Dealer to receive payments will be carried out by the payment methods available. This means that Simplewish GmbH will collect contributions to the joint present in its own name and for the Dealer's account and generate a voucher of the Dealer for the total amount collected.
  9. Term and termination

    1. 9.1 The contract between user and Simplewish GmbH shall be concluded for an indefinite period of time. Either Party may terminate the contract in writing (e.g. letter or email) at any time without having to state a reason. Organisers of an active joint present and Simplewish GmbH in the case of an active joint present shall be excluded from such right to terminate the contract at any time. They may terminate the contract not earlier than upon completion of the joint present.
    2. 9.2 In the case of termination of the contract Simplewish GmbH shall deactivate the user's access and delete the user's data unless there is a statutory obligation to keep data.

    Summary in other words: You can terminate your contract with us anytime except you are the Organisor of an active joint present. In this case you have to wait with the termination of the contract until the joint present is completed.

  10. Distance selling/Right of rescission

    1. 10.1 This Contract is a distance selling transaction as defined in Sections 5a et seq. of the Austrian Consumer Protection Act [Konsumentenschutzgesetz/KSchG], as it is exclusively concluded by using an electronic means of communication.
    2. 10.2 However, the user shall have no right vis-à-vis Simplewish GmbH to rescind the contract as defined in Section 5e KSchG as the services of Simplewish GmbH are services the rendering of which to the consumer will be commenced immediately as agreed and thus within seven (7) working days of conclusion of the contract (Section 5f (1) (1) KSchG).
    3. 10.3 The Organiser's right of rescission vis-à-vis the Dealer shall remain unaffected. It shall be determined according to the contractual provisions agreed between Organiser and Dealer.
    4. Summary in other words: We don’t give a summary of this clause, because it is very important for you that you read the whole clause.

  11. Liability

    1. 11.1 Simplewish GmbH shall not be liable for availability, price, condition, usability, lawfulness, actual or intended fitness for a certain purpose of the products and services which are purchased from the Dealer with the money collected via Simplewish, but shall only be liable for careful selection of the Dealer, proper generation of the voucher and proper forwarding of information, notices and declarations of intention.
    2. 11.2 Any warranty claims or other claims or disputes in connection with the purchase of the above products or services shall be settled between the Dealer and the Organiser.
    3. 11.3 Payment for a joint present shall be carried out via payment providers. Such payment services are not provided by Simplewish GmbH and are thus subject to the provisions and general terms and conditions of the respective payment service provider. Simplewish GmbH shall not be liable for the services of those payment service providers.
    4. 11.4 Simplewish GmbH assumes no liability for the contents of external links. The operators of such linked websites shall exclusively be responsible for their content. Likewise, Simplewish GmbH shall not be liable for correctness, quality or completeness of the contents generated by Simplewish users (e.g. comments).
    5. 11.5 Moreover, Simplewish GmbH shall, on whatsoever legal ground, only be liable:
      • - in the case of wilful intent and/or gross negligence of a legal representative, an executive employee or other agent [Erfüllungsgehilfe] of Simplewish GmbH,
      • - in the case of any negligent breach of a material contractual duty (the term "material contractual duty" abstractly referring to a duty that has to be fulfilled in order to enable proper performance of the contract and on compliance with which the other party may typically rely), in the case of default or impossibility, as to the merits. In that case liability for pecuniary or property damage shall be limited to the amount of the damage which is typically foreseeable.
      • - The above limitations of liability shall not apply in cases of mandatory statutory liability, in particular pursuant to the Austrian Product Liability Act [Produkthaftungsgesetz], issuance of a guarantee or negligently caused harm to life, limb or health.

    Summary in other words: We don’t give a summary of this clause, because it is very important for you that you read the whole clause.

  12. Data protection

    1. 12.1 If you have any questions regarding collection, processing or use of your personal data or require information, correction, blocking or deletion of data, please contact Simplewish GmbH at www.simplewish.eu or support@simplewish.eu. At this address you may also retrieve or change your data stored with Simplewish GmbH or have them blocked or deleted at any time.
    2. 12.2 To be able to use the service of Simplewish GmbH you are required to register and thus to reveal personal data. In addition, specific data such as your IP address, browser type and access times are automatically transmitted to us by your computer and will be stored on our server. As a matter of principle, we shall not use such data in relation to persons, except for the purpose of tracing unauthorised access to our internet offer, but we will only evaluate on an anonymous basis which of our websites are preferred, how many times our website is accessed per day and the like.
    3. 12.3 We use your personal information for establishing, performing and winding up your contractual relationship with Simplewish GmbH. We shall only pass on your data to third parties if it is necessary for rendering our services. Obviously, your personal data will not be sold to third parties. We shall pass on the personal data received from you to third parties exclusively to the extent defined in this data protection agreement.

    Summary in other words: Your data is safe with us and we only use it for internally for our accounting or other paper work. The anonymeous user data helps us to improve our service. Upon your request we are obliged to give out to you and delete all your data.

  13. Final provisions

    1. 13.1. Austrian law shall apply and UN Sales Law shall be excluded. Applicability of mandatory laws of the country of the customer's habitual residence at the time the contract was concluded shall remain unaffected by this choice of law.
    2. 13.2. If any provisions of these General Terms and Conditions are or become ineffective or unenforceable, this shall not affect the effectiveness of the terms and conditions as a whole.
    3. 13.3 Place of performance and exclusive place of jurisdiction is Vienna.