GENERAL TERMS AND CONDITIONS FOR CLOUD

for MANDY mobile operated automation

of INAUT Automation GmbH, FN 215179s, Hauptstraße 33 CENTRUM, 3244 Ruprechtshofen, VAT number ATU52856805, Supervisory Authority: Office of the District Commissioner Melk, Lower Austrian Chamber of Commerce, Electrical, Buildings, Alarm, and Communications Technician Division, (hereinafter referred to as "INAUT"). Whereas INAUT is in particular subject to the provisions under trade law which can be accessed via this link:

1. Scope of application General Terms and Conditions of Cloud and SERVICE AGREEMENT
   1. These General Terms and Conditions of Cloud ("GTCC") are valid as from 01 April, 2018 and shall apply to all services ("SERVICE", see also definition as per Item 2) rendered by INAUT via the website or the Mandy App ( http: //www.mandy-app.com/) ("MANDY"), in particular services rendered on the basis of the individual (contract) agreement concerning the respective SERVICE (in total "SERVICE AGREEMENT"); These GTCC shall apply between INAUT and the CUSTOMER / USER. These GTCC shall be applicable and valid also in the event that the CUSTOMER enters into a contract with its own customers, e.g. as a plant manufacturer, and proceeds with the registration for the same and, as is mostly the case, carries out the technical configuration and provides the SERVICES of INAUT. In such cases, a three-party relationship is established:
2. The relationship between the CUSTOMER as a plant manufacturer and its customer;
3. The relationship between the CUSTOMER as a plant manufacturer and INAUT;
4. The relationship between INAUT and the customer.
   1. Any terms and conditions or similar of the CUSTOMER which deviate from these GTCC shall be invalid even if they claim to be (exclusively) valid. Furthermore, the licence terms and / or terms of contract or general terms and conditions of the data centre, in the server infrastructure of which MANDY is installed, also apply. INAUT is free to choose any data centre. The costs for storing the transaction data are deemed covered by the single usage fee. The CUSTOMER is not entitled to relinquish the storage space to third parties for their use, neither in full nor in part, neither against payment of a fee nor free of charge. INAUT provides to the CUSTOMER the software under the contract for online use via a data network. For that purpose, the software will be provided on a server infrastructure which can be accessed by the CUSTOMER via the data network. INAUT is not required to provide a user manual for the software, unless this is expressly agreed in writing.
   2. INAUT enters into SERVICE AGREEMENTS exclusively with, and / or provides SERVICES exclusively to, business enterprises. The CUSTOMER warrants that it is a business enterprise within the meaning of the (Austrian) "UGB" (Business Enterprise Code) and that no formation transaction within the meaning of Sec. 1 Para. 3 of the (Austrian) "KSchG" (Consumer Protection Act) exists. The CUSTOMER further warrants that within its sphere neither minors nor consumers nor other unauthorised third parties will use the SERVICES.
   3. INAUT shall have the right to amend these GTCC any time at its sole discretion; such amendments to the GTCC will only become applicable for the CUSTOMER and the USER once it has agreed to the amendments by clicking on the declaration of consent in the SYSTEM APPLICATION or when ordering a(n) (additional) SERVICE. The SERVICE which has been ordered or bought prior to the consent to the amendments to the GTCC will be provided in accordance with the GTCC as amended when last accepted by the CUSTOMER or USER.
5. Definitions
   1. In these GTCC and / or the SERVICE AGREEMENT, the terms listed below shall be deemed to have the following meaning:
6. INAUT SOFTWARE shall mean computer programs and databases including associated data and documentation content, which are made available to the CUSTOMER / USER by INAUT via MANDY within the framework of the SERVICE AGREEMENT. MANDY is a (cloud-based) automation technology solution which enables the operation of plants via an internet browser or via an app installed on a smart device. The CUSTOMER / USER may thus choose freely with which terminal device it accesses its data. With the flexible web interface, the facility can also be easily operated and accessed via mobile phone. The connection to the facility is established via a mobile network or wired internet. Data are transmitted using encryption. They are recorded in a database and stored in a data centre, replicated and backed up several times. The so-called MANDY connector reads and writes the configured data from / to the controller, prepares it for further communication to the outside (e.g. via mobile radio, WLAN or Ethernet) and establishes the data connection. The mobile applications (apps) are applications that are used on tablets, PCs and / or smartphones – or other comparable computer hardware / communication hardware that may be available in the future.
7. GTCC shall mean these General Terms and Conditions of Cloud, which are accepted by the CUSTOMER / USER within in the framework of the SERVICE AGREEMENT or prior to the first use by means of a declaration to that effect.
8. ACCEPTANCE DATE shall mean the date on which the CUSTOMER accepts the SERVICE AGREEMENT for the respective SERVICE, including these GTCC, in a legally binding way by clicking on the relevant declarations.
9. CUSTOMER shall mean that which as a business enterprise buys the SERVICE from INAUT. This can either be the business enterprise as the direct end customer, or the business enterprise as the plant manufacturer, who is itself in a contractual relationship with the end customer. Therefore, in this context, CUSTOMER shall mean the contract partner of INAUT as well as the respective customer of that contract partner.
10. USER shall mean anyone who buys the SERVICE from INAUT, either directly through INAUT or through a CUSTOMER of INAUT; this, as a rule, on the basis of the SERVICE AGREEMENT entered into between INAUT and the CUSTOMER.
11. SERVICE shall mean a virtual data service via or through MANDY, which is comprised in the scope of service of the SERVICE AGREEMENT.
12. SERVICES exclusively comprise services provided by INAUT via MANDY.
13. SERVICE COMPENSATION shall mean a credit note from INAUT vis-à-vis the CUSTOMER in the event that INAUT does not provide a SERVICE in accordance with the contract, or if the agreed availabilities are not met.
14. SERVICE AGREEMENT shall mean the total of agreements entered into between the CUSTOMER and INAUT, under the terms and conditions of which INAUT provides the SERVICE, and the CUSTOMER or the USER entitled by it within the framework of the SERVICE AGREEMENT buys the SERVICE; these GTCC form an integral part of the SERVICE AGREEMENT. The subject matter of the SERVICE AGREEMENT shall be defined in the contract to be entered into with the CUSTOMER separately in each case.
15. SYSTEM APPLICATION shall mean the sum of the control, input, and output masks of MANDY with which the CUSTOMER / USER can enter and keep its data current, which serves as a communication platform between CUSTOMER, USER, and INAUT, with the help of which the CUSTOMER can operate and manage the SERVICE, and through which INAUT provides the SERVICE to CUSTOMER and USER (at least in part).
16. ACCESS DATA shall mean the sum of all identifiers and passwords, which the CUSTOMER / USER is assigned by INAUT (and which may then be changed by the CUSTOMER / USER depending on the circumstances), to gain access to the SYSTEM APPLICATION and / or to the SERVICE.
17. Registration and ACCESS DATA
    1. In order to gain access to the entire SYSTEM APPLICATION, the USER / CUSTOMER must first register on MANDY.
    2. Registration comprises (i) collection of customer data (in user management) and (ii) user and password selection. Acceptance of these GTCC (which can be stored and printed from the order page) takes place upon initial log-in (also if made by a USER which is newly added at a later time.) The data entered by the CUSTOMER / USER (customer data) are shown once more on the user management page where they can be corrected any time.
    3. The ACCESS DATA may be used exclusively within the framework and scope of the SERVICE AGREEMENT, whereas the CUSTOMER may pass on ACCESS DATA to the USER only within the scope thereof and exclusively within its business unit (not to companies affiliated in any way whatsoever) and at its own risk and responsibility. INAUT may change the ACCESS DATA and provide to the CUSTOMER (also for the entitled USERS) the new ACCESS DATA by email any time for security and / or administrative reasons. Except in the case of imminent danger, INAUT will – with appropriate timely actions – do so in such a way that an interruption to service use caused by the CUSTOMER due to a lack of current ACCESS DATA will be avoided to the greatest possible extent.
    4. The CUSTOMER / USER is obligated to keep the ACCESS DATA confidential. The CUSTOMER / USER is obligated to fully secure its connection, its (mobile) device and its ACCESS DATA in order to protect it against unauthorised access. The CUSTOMER / USER shall notify INAUT without delay of any suspicion that ACCESS DATA or other classified information relating to a SERVICE may have been disclosed to unauthorised third parties. The CUSTOMER shall be strictly liable for any misuse of data and / or ACCESS DATA, in particular as regards payment claims. The CUSTOMER acknowledges that INAUT is entitled to immediately suspend the respective SERVICE, or even all SERVICES, upon discovery of any form of use which is in violation of the agreement; in that event INAUT may extraordinarily terminate the SERVICE AGREEMENT. INAUT will seek to discontinue, or block access to, the SERVICE only after the CUSTOMER has been requested in writing (by email) to discontinue or prevent the misuse and has been granted a reasonable period of time to comply with this request; when doing so, INAUT will point out the consequences of the blocking as far as possible. This provision shall apply, mutatis mutandis, for late payment for the SERVICE(S) by the CUSTOMER.
    5. The CUSTOMER shall keep its data up-to-date at all times, in particular in order to enable INAUT to make contact regarding performance of the contract (by e-mail).
18. SERVICES and RIGHTS OF USE
    1. INAUT shall provide the SERVICE in accordance with the SERVICE AGREEMENT until (partial) termination of the same. INAUT will provide the SERVICE in accordance with the generally accepted rules of technology in compliance with the SERVICE AGREEMENT. Currently, data are transferred from the server farm to the INAUT server every four hours as a backup.
    2. Use of the SERVICE in applications and areas where increased safety requirements may be required shall be subject to the prior written consent of INAUT. Such applications and areas shall include, but not be limited to nuclear installations, traffic and communication technology, control components (e.g. driving and flying watercraft of any kind), as well as military or similar system environments in which incorrect provision of the SERVICE could lead to bodily injury and / or high property or pecuniary damage ("HIGH RISK ACTIVITIES"). INAUT accepts no responsibility for the use of a SERVICE for HIGH RISK ACTIVITIES and has the right to extraordinarily terminate the SERVICE AGREEMENT, insofar as a SERVICE is used for HIGH RISK ACTIVITIES.
    3. The SERVICE may be subject to modifications by INAUT caused by technical or other requirements. The CUSTOMER agrees that insignificant modifications to the SERVICE (updates), that is, where the core functions of the SERVICE are retained, can be made at any time by INAUT; INAUT shall, to the extent possible, inform of such modifications in advance. Furthermore, the CUSTOMER agrees that the SERVICE may be modified by means of upgrades to essential functions and also in scope; INAUT shall inform the CUSTOMER of such modifications 7 calendar days in advance, and the CUSTOMER shall have an extraordinary right to terminate the corresponding SERVICE at the time of the modification, if the modification by means of upgrades is unacceptable to it. In this regard, the CUSTOMER waives all compensation and other claims.
    4. Insofar as a SERVICE within the SERVICE AGREEMENT comprises the use of INAUT SOFTWARE, INAUT grants the CUSTOMER or entitled USER a non-exclusive and non-transferable right of use in the scope of the SERVICE AGREEMENT required for use ("RIGHT OF USE”); further reaching terms and conditions concerning the RIGHT OF USE may be agreed within the SERVICE AGREEMENT for the respective SERVICE. To the extent that the RIGHT OF USE includes the permission to use copyrighted work ("Werknutzungsbewilligungen") of third parties, the relevant permission is readily accessible on the INFO page of the application as well as on the www.mandy-app.com website; it becomes an integral part of the SERVICE AGREEMENT upon ordering.
    5. If the use of a SERVICE requires third-party software or similar on the hardware of the CUSTOMER / USER (e.g. browser, PDF reader software), the CUSTOMER / USER must itself take care of its installation and maintenance as well as of obtaining the relevant rights of use from the respective third-party provider. The CUSTOMER / USER shall strictly indemnify and hold harmless INAUT in this respect.
    6. The respective SERVICE shall be described either in the SYSTEM APPLICATION or in the contract entered into separately with the CUSTOMER / USER.
19. User requirements for the provision of the SERVICE
    1. INAUT cannot accept any responsibility for the SERVICE, the SYSTEM APPLICATION or MANDY being compatible with the hardware and software used by the CUSTOMER or USER.
    2. The requirements (minimum hardware or software specifications) for the use of the respective SERVICE – unless specified otherwise in connection with the SERVICE AGREEMENT relating to the respective SERVICE – are available on www.MANDY-app.com.
    3. The provision of these minimum requirements as well as the telecommunications services, including the transmission services from or to the service transfer point (equal to the network termination point of INAUT) are not covered by the SERVICE AGREEMENT, but are the sole responsibility of the CUSTOMER or the USER.
20. Usability, data and rights therein
    1. User management can be configured by the CUSTOMER or USER itself. Three different user groups are available: (i) the CUSTOMER or USER can set parameters and operate, (ii) operate or (iii) visitors can only view.
    2. The CUSTOMER or USER grants INAUT an exclusive, free, and, within the framework of the SERVICE AGREEMENT, unlimited right of use for the duration of the SERVICE AGREEMENT to use customer data (including backup copies and technical virtualisations); this is limited to the purpose of the correct provision of the SERVICES. This applies, mutatis mutandis, to the relationship between CUSTOMER and USER should there be a three-party relationship and INAUT, as a contract partner, have a plant manufacturer for a CUSTOMER; in this case the USER grants the CUSTOMER rights according to the provisions of this Item. The CUSTOMER / USER warrants that it has the corresponding rights and agrees to strictly indemnify and hold harmless INAUT in this respect.
    3. The passing on of customer data to third parties in order to allow INAUT to operate the SERVICES is permitted for the purpose of fulfilling contractual obligations. The CUSTOMER or USER retains all rights it has to customer data which it makes available to INAUT via MANDY. These customer data will be used by INAUT only if this is necessary for the provision of the SERVICES described herein and in accordance with all applicable data protection laws (including the EU General Data Protection Regulation.) Both INAUT and the CUSTOMER / USER shall comply with the privacy policy and data protection regulations in all respects and provide the necessary support and cooperation, to the extent that this is reasonable or necessary.
    4. The CUSTOMER / USER agrees that INAUT may, on a historical, aggregated, and anonymous basis and for its own purposes, process all data entered via, or collected, processed and aggregated by, MANDY, including, but not limited to data relating to the use of SERVICES and customer data. INAUT must maintain reasonable security measures for all data in accordance with the terms and conditions of this agreement. INAUT is the sole and exclusive owner of all rights, titles and interests in such (system) data aggregated by or through MANDY and may process and disclose such data for its own business activities worldwide, free of charge, provided that no business or trade secrets of the CUSTOMER or USER are disclosed; however, the latter does not apply if there are statutory disclosure obligations. The CUSTOMER / USER acknowledges that, regardless of the type, source, form or medium on which they are stored, the data represent valuable and highly confidential intellectual property as well as a trade secret that is not generally available and is proprietary information under the sole ownership of INAUT. Ownership of the data therefore remains exclusively with INAUT.
    5. However, for the duration of the SERVICE AGREEMENT, INAUT grants the CUSTOMER / USER the right to process the data and copies thereof, as well as derived, reprocessed and newly generated or aggregated data, analyses and evaluations, for its own internal use; such right shall be non-exclusive, limited to the domicile of the CUSTOMER / USER, and transferable and sub-licensable only to its own CUSTOMERS. The CUSTOMER / USER is obligated to treat the data as confidential and not to disclose, sell, trade, copy, distribute, transfer, dispose of or otherwise make the data available to third parties, with the exception of affiliated companies that are under common control or ownership as well as any company that acquires the CUSTOMER / USER or associates with it. The provisions of Item 6.5 apply, mutatis mutandis, to the relationship between the CUSTOMER as plant manufacturer and its CUSTOMER. In addition, the following must be observed:
21. The CUSTOMER / USER may provide the data to a consultant for preparation of an analysis or evaluation, provided that such consultant does not make a copy of the data and agrees in writing to treat the data as confidential.
22. The CUSTOMER / USER shall ensure that its employees, agents, consultants, subcontractors, processors and storage companies treat the data in the strictest confidence and do not disclose, sell, trade, copy, distribute, transfer, dispose of or otherwise make the data available to third parties.
23. The respective CUSTOMER / USER may process the data for documentation and archival purposes, if required vis-à-vis the authorities, as well as for scientific or historical research purposes or for statistical purposes.
    1. Unless INAUT has obtained consent to do so, INAUT will not share personal information that MANDY collects with third parties (except as required by law, as a result of a government request or for the purpose of providing the SERVICE). This also applies, mutatis mutandis, to the relationship between the CUSTOMER as a plant manufacturer and its CUSTOMER.
24. Specific obligations of the CUSTOMER / USER
    1. The CUSTOMER declares to have carefully checked the content and scope of the SERVICE before ordering and is aware that there may be expenses and the like in order to use the SERVICE accordingly.
    2. The CUSTOMER / USER will in connection with the SERVICE AGREEMENT or use of the SERVICE: (i) not violate applicable law, including, but not limited to the intellectual property rights, rights under fair trading laws, and rights to protection of personality of third parties; (ii) comply with all data protection and other legal obligations; (iii) fulfil the obligations related to ACCESS DATA; (iv) compensate any expenses incurred by INAUT following the submission of a fault message, if the inspection proves that no fault was present within the sphere of INAUT; (v) (also) refrain from attempting to use data without authorisation, and from doing so through unauthorised third parties, or for that purpose to intervene in the system or program operated by INAUT, to intrude or to improperly intercept data or to commit fraudulent data processing or to arrange for all of the above to be carried out – note should be taken that consequences under criminal law may arise ; (vi) take no action that could cause an unreasonable or disproportionate burden or even damage to INAUT's system or data over which the CUSTOMER may not dispose freely, in particular, not store viruses, Trojans, worms or other malware on the INAUT system, which may damage, impair, secretly intercept or destroy systems or data – note should be taken that consequences under criminal law may arise; (vii) not copy, reproduce, transmit to third parties, modify, remodel, make public, or create any derivative works of MANDY or of the SERVICES contrary to the SERVICE AGREEMENT.
    3. INAUT is entitled to block access to the SERVICE in the event of a breach of the SERVICE AGREEMENT or default of payment by the CUSTOMER, the USER or a third party attributable to it. Access will only be restored if the breach is permanently remedied or the risk of re-occurrence is removed by submitting a corresponding cease-and-desist declaration, or if the default of payment was remedied through receipt of payment by INAUT.
    4. The CUSTOMER / USER is solely responsible for the actions of its employees and agents who use the services on his behalf. The CUSTOMER / USER assumes all risks in dealing with other operators or with operating the SERVICES and shall be responsible for all communication among them. The CUSTOMER / USER must ensure that the plant, which is controlled via MANDY, can also be operated separately by its own employees or by third parties instructed to do so, in particular with regard to SERVICE failures or malfunctions, if MANDY is temporarily unavailable.
25. Consideration and terms of payment
    1. In return for the provision of the SERVICE, the CUSTOMER owes payment of the fee in accordance with the SERVICE AGREEMENT. All fees are quoted in Euros, exclusive of VAT. The fee amount and the billing method will be agreed separately. In the event of a modification of the SERVICE that results in a change of fees, invoicing will be on a pro-rata basis over the respective service periods, unless otherwise agreed. In principle, all payments shall be due in advance according to the payment period to be settled. One-off fees shall be due before activation of the corresponding SERVICE. Fees for a SERVICE invoiced on the basis of the intensity of use will be payable in arrears upon invoicing by INAUT according to the predefined payment period and according to the respective usage status of the CUSTOMER. In the event of a default, Secs. 455 et seq of the UGB shall apply, however, regardless of culpability.
    2. All agreed fees are subject to an annual indexation by INAUT in accordance with the monthly consumer price index (CPI) most recently published by Statistics Austria. The parties agree to use the index figure for the month of the ACCEPTANCE DATE as the base figure. The fee is adjusted to the extent to which the CPI has changed in the month of adjustment as compared to the base figure. Insofar as the applicable index figure has not yet been published at the time of the indexation date, the index figure last published shall be used, and any resulting difference with regard to the applicable index figure must be recalculated. The index figure used for the indexation shall form the basis for next year's indexation. If the CPI is no longer published, then the index that succeeds or most closely resembles the CPI shall form the basis of the indexation. If it is no longer possible to use an index calculation, then the indexed fee shall be calculated according to principles analogous to the ones most recently applied to the index calculation. An adjustment of prices by INAUT shall be permissible also if other external factors, over which INAUT has no influence (e.g. copyright levies, increase or reintroduction of state fees, etc.), should increase during the term of the contract; in that case the adjustment shall be proportionate to the increase of the respective external factor.
    3. The agreed fees include all services that are necessary for the proper performance of the contract, including without limitation licence fees, if any, and software maintenance costs.
    4. The PARTIES shall be entitled to offset only such claims as have been expressly granted or legally established. Under no circumstances shall the CUSTOMER have a right of retention.
    5. INAUT must properly invoice the CUSTOMER for the SERVICES, whereas the CUSTOMER agrees that the invoice may be issued and transmitted electronically.
26. Rights to the SERVICE
    1. All (intellectual property) rights to the SERVICE belong exclusively to INAUT; the CUSTOMER / USER is granted the non-exclusive right to use such rights for its own business purposes, which right is transferable to its CUSTOMERS, sub-licensable, and limited to the term of the SERVICE AGREEMENT. All rights beyond, including without limitation the right to reproduce, distribute including subletting, process, as well as to make publicly accessible remain with INAUT. This shall apply, mutatis mutandis, to the relationship between the CUSTOMER as a plant manufacturer and its CUSTOMER.
    2. Irrespective of the provisions of Item 9.1, the CUSTOMER / USER is in particular not permitted, even with respect to individual elements of the SERVICE (i) to re-licence, publish, let, lease the SERVICE or make it available over networks or online, or to provide it as part of a timeshare, or to act as a service bureau, or to offer subscription services for the SERVICES; (ii) to transfer the SERVICE AGREEMENT to another person without the written consent of INAUT.
27. Availability of the SERVICE
    1. INAUT shall provide the CUSTOMER / USER with the SERVICE specified in the SERVICE AGREEMENT exclusively for the functionalities specified therein and for the agreed system term. However, INAUT has no influence on the connectivity or availability of the data network of the CUSTOMER / USER endeavouring to establish a connection via a mobile network to the plant. Any liability in connection with a lack of availability or connectivity of data or mobile networks of the CUSTOMER / USER is expressly excluded.
    2. The system runtime consists of the periods of time when the SERVICE is available for use plus periods of unavailability. Unavailability is present if the functionalities agreed upon for the respective SERVICE are not provided in their entirety.
    3. INAUT guarantees the SERVICE to be available for use 99% per calendar year, unless otherwise specified in the SYSTEM AGREEMENT. The following circumstances shall, in any case, be disregarded for the calculation of availability and will not give rise to any legal claims for cause of disruption or similar: (i) maintenance and service windows which are announced on MANDY at least three calendar days in advance; (ii) any system, software, network or hardware failure that is beyond the sphere or control of INAUT, as well as force majeure; (iii) failures or errors caused by the CUSTOMER / USER itself or by third parties attributable to it, in particular if such failures or errors are the result of improper operation, failure to comply with technical specifications and conditions of use, or of the use of incompatible devices.
28. Disruption and compensation
    1. INAUT assumes no responsibility for ensuring that the SERVICE is and remains fully functional and faultless without interruptions at all times beyond what is the state of the art in the professional EDP sector. INAUT therefore gives no warranty or guarantee, nor does it assume any liability or performance risk with regard to the SERVICE, in particular not with regard to any specific suitability of the SERVICES for a certain purpose; the SERVICE is described conclusively on www.MANDY-app.com and in the contract entered into with the CUSTOMER, and the CUSTOMER cannot derive any rights from other information. For the sake of good order, it is stated that INAUT cannot accept any responsibility for circumstances in the sphere of the CUSTOMER, including without limitation its hardware, software and internet connection from or to the network termination point on the side of INAUT.
    2. The CUSTOMER is obligated to implement and maintain also its own security measures and to carry out saves or backups in order to secure data in accordance with what is the state of the art (obligation to minimize damage).
    3. If any fault or error occurs in connection with the SERVICE, the CUSTOMER / USER shall inform INAUT thereof without delay, along with a comprehensive description. If the CUSTOMER fails to inform INAUT immediately, it may not assert any claims, unless it proves that INAUT has caused the failure or error intentionally or through gross negligence or concealed it. It is at all times the obligation of the CUSTOMER to prove that a failure or error is present; Sec. 924 of the (Austrian) ABGB (General Civil Code) in particular is excluded by mutual agreement, (especially in light of its last sentence).
    4. Once INAUT has been informed of an unavailability or an error in connection with the SERVICE, INAUT will restore the SERVICE to the condition agreed in the contract as soon as possible. Failure to comply with availability shall only entitle the CUSTOMER to a credit note corresponding to the SERVICE COMPENSATION as specified in the SERVICE AGREEMENT. Upon receipt of that credit note, all claims of the CUSTOMER arising from a failure to comply with availability requirements shall be deemed settled, provided that there is no gross negligence on the part of INAUT, for which the CUSTOMER must provide proof. The total of all SERVICE COMPENSATION per contract year shall be limited to a maximum of 30% of the annual net amount of the fees allocated to the SERVICE that has not been performed in accordance with the contract. A further reduction of the fees due as well as other claims arising from warranty or from regulation concerning disruption and / or claims for damages are excluded. The SERVICE COMPENSATION will be taken into account by INAUT in the following SERVICES billing cycle.
    5. In accordance with the statutory provisions, INAUT shall assume liability exclusively for damage caused intentionally or as a result of gross negligence by INAUT and its vicarious agents; the CUSTOMER / USER is required to prove that INAUT is at fault. This restriction does not apply to the liability of INAUT under the (Austrian) Produkthaftungsgesetz (Product Liability Act), nor for damage resulting from injury to life, body, or health, or infringements of property rights, for which INAUT or its vicarious agents are responsible. The liability of INAUT for damage not typically associated with the contract as well as for consequential damage, including without limitation lost profits and lost savings and pure financial losses, shall be excluded, except in the event of wilful intent on the part of INAUT. Any claims of the CUSTOMER / USER shall expire within six months as from the time when the damage and the perpetrator become known.
    6. Insofar as INAUT does not explicitly undertake data backup within the scope of the SERVICE, the CUSTOMER / USER shall take care of it, and INAUT shall not be liable for any data loss except in the case of gross negligence. Otherwise INAUT shall, in accordance with the above provisions, be liable exclusively for such expenses as are required to recover the data in the most cost-effective way. The CUSTOMER / USER shall, in all cases, bear the burden of proof and have a comprehensive duty to minimize the damage.
    7. Unless otherwise explicitly agreed, the CUSTOMER or the USER (and the CUSTOMER jointly with the USER by way of inclusion) shall, in accordance with the statutory provisions, be liable for all damage caused to INAUT.
29. Responsibilities with regard to third-party claims
    1. In the event of a claim by third parties that the CUSTOMER is prevented or hindered from using the SERVICE according to the contract, the CUSTOMER shall inform INAUT comprehensively without delay. If action is brought against the CUSTOMER / USER by third parties as a consequence of the use of the SERVICE in accordance with the agreement, the CUSTOMER / USER shall coordinate with INAUT regarding all steps in this regard and only make acknowledgements and settlements with the consent of INAUT. With regard to violations of intellectual property rights of third parties, INAUT shall strictly indemnify and hold harmless CUSTOMERS to the extent that the claims are not based on unlawful conduct of the CUSTOMER / USER; in the case of the latter, the CUSTOMER shall in turn strictly indemnify and hold harmless INAUT. In all these cases, the CUSTOMER / USER shall assist INAUT to the best of their ability, in particular by providing appropriate information and statements.
    2. In this context, INAUT is entitled at any time to modify the SERVICE in such a way that there will, at any event, be no more claim. If it is not possible to modify the SERVICE, the CUSTOMER / USER must, upon INAUT's request, stop using the respective SERVICE without delay, or INAUT shall be entitled to block access, whereas no fees will be due for the SERVICE concerned as from the time when the SERVICE is no longer used. The limitations of liability as stipulated under Item 11 Para. 5 shall apply.
    3. The CUSTOMER or the USER (and the CUSTOMER jointly with the USER by way of inclusion) shall strictly indemnify and hold harmless INAUT with regard to any damage caused by a breach of third-party rights by the CUSTOMER / USER in connection with the SERVICE, including without limitation infringements of intellectual property rights, rights under fair trading laws, and rights to protection of personality; indemnification shall include reasonable and necessary expenses incurred by INAUT for legal representation.
30. Term of the SERVICE AGREEMENT
    1. The SERVICE AGREEMENT commences with the ACCEPTANCE DATE and runs indefinitely, depending on the SERVICE or the respective SERVICE AGREEMENT.
    2. Unless otherwise specified in the SERVICE AGREEMENT for the respective SERVICE, the PARTIES may terminate the SERVICE AGREEMENT with regard to all or individual SERVICES on the last day of each month, subject to a notice period of 30 calendar days. Fees already paid cannot be refunded.
    3. INAUT shall be entitled to immediately terminate the SERVICE AGREEMENT for all or individual SERVICES or to immediately suspend or block access for good cause, if (i) INAUT is required by the authorities to discontinue the service; (ii) the CUSTOMER has provided incorrect customer data or access to the SERVICE was otherwise fraudulently obtained; (iii) the ACCESS DATA are passed on without authorisation and / or a SERVICE is used in an unauthorised manner, in particular for HIGH RISK ACTIVITIES; (iv) the CUSTOMER does not meet its payment obligations and is in default of payment for a period of at least seven calendar days despite having been reminded by email; (v) the CUSTOMER fails to comply with any other essential provision of the SERVICE AGREEMENT, including these GTCC, and does not comply with a request to rectify the breach of contract within a period of seven calendar days; (vi) it is absolutely necessary to use a sub-provider for the provision of the SERVICE and the CUSTOMER does not grant its permission.
    4. The CUSTOMER shall be entitled to immediately terminate the SERVICE AGREEMENT with regard to the respective SERVICE if upgrades would lead to unreasonable changes for the CUSTOMER or if contrary to what has been agreed and due to circumstances beyond INAUT's control a SERVICE is unavailable for more than seven calendar days.
    5. The PARTIES shall be entitled to terminate the SERVICE immediately if the SERVICE is unavailable for more than fourteen days due to force majeure.
31. Disclosure of data and consequences of contract termination
    1. Upon termination of the SERVICE AGREEMENT or parts thereof: (i) INAUT will block access to the respective SERVICE or all SERVICES; (ii) all fees for the respective SERVICE – on a monthly pro-rata basis, if applicable – shall become due immediately, unless they have already been paid in advance.
    2. INAUT will irretrievably delete all customer data of the CUSTOMER / USER upon the CUSTOMER's request to do so, provided that no statutory provisions to the contrary exist.
    3. Upon a separate order, INAUT will provide to the CUSTOMER or to a third party designated by the CUSTOMER all customer data on the agreed-upon data carrier or by way of remote data transmission.
32. Data protection and references
    1. Data of the CUSTOMER / USER used by the same in the scope of the SERVICE may contain personal references. The CUSTOMER shall be the controller in accordance with the provisions of the DSG (Data Protection Act) and the DSGVO (General Data Protection Regulation); INAUT will act as the CUSTOMER's processor under data protection law. The CUSTOMER is responsible for complying with all data protection laws. INAUT guarantees that all use of data, including access to the data and the use by sub-providers, if any, will take place within the EEA or in third-party countries (recognised by the EU Commission) with an appropriate level of data protection.
    2. The CUSTOMER as the client strictly indemnifies and holds harmless INAUT as a processor with respect to the data protection obligations.
    3. The data use to be performed by INAUT results from the respective SERVICE in accordance with the SERVICE AGREEMENT. INAUT undertakes to use customer data and processing results exclusively within the scope of the orders of the CUSTOMER / USER resulting from the SERVICE, and to return them exclusively to the CUSTOMER / USER or only transmit them upon its / their order within the scope of the SERVICE. INAUT will not use the customer data provided to it for its own purposes or for the purpose of third parties.
    4. INAUT guarantees that before commencing operation, all persons involved in data processing have committed to maintaining data confidentiality, also beyond termination of their activities. All employees of INAUT have been instructed with regard to their obligations under the DSG and the DSGVO.
    5. The CUSTOMER acknowledges that INAUT will use sub-providers – this also includes affiliated companies or similar – to provide the SERVICE only if the CUSTOMER has agreed thereto with respect to each individual sub-provider within the framework of the SERVICE AGREEMENT. INAUT will, in any event, agree with any sub-provider that its data protection obligations shall at least be equivalent to those of INAUT pursuant to this Item 15. If the use of a sub-provider is absolutely necessary for the provision of a SERVICE and the CUSTOMER does not grant its consent, then INAUT shall have an extraordinary right to dissolve.
    6. INAUT declares, in a legally binding way, that sufficient security measures have been taken within the meaning of the DSGVO and the DSG to prevent customer data from being misused or made accessible to third parties without authorisation.
    7. INAUT shall make provision for the technical and organisational requirements so that the CUSTOMER can fulfil the obligations (client's duty to provide information, right of access, right to correction or deletion) vis-à-vis the concerned party within the statutory time limits.
    8. INAUT must notify the CUSTOMER of any incidents without delay (Data Breach Notification) and pass on information regarding incidents without delay (request for information to INAUT).
    9. The CUSTOMER takes note and acknowledges that both during and after the term of the agreement it will only be granted access to INAUT's infrastructure (data centre, hardware, etc.) after the prior express written permission of INAUT. INAUT undertakes, upon order, to provide the CUSTOMER with the information necessary to ensure compliance with the relevant data protection obligations.
    10. The CUSTOMER declares its consent – which may be revoked at any time – that its name including address and area of activity and possibly the respective SERVICE and term as a reference customer may be used by INAUT objectively and unrestrictedly for the purpose of marketing worldwide, that is, particularly on the internet, in print and the like.
33. Final provisions
    1. The SERVICE AGREEMENT, including these GTCC, shall be governed exclusively by the laws of Austria, to the exclusion of (i) the national and European conflict-of-law rules and (ii) the United Nations Convention on Contracts for the International Sale of Goods (CISG).
    2. To the extent permitted by law, the place of jurisdiction shall be the court having subject-matter jurisdiction over the headquarters of INAUT in Austria.
    3. All (further reaching) agreements on the SERVICE, including these GTCC, form an integral part of the SERVICE AGREEMENT. The SERVICE AGREEMENT is final; there are no side agreements, in particular no oral side agreements. All statements from the PARTIES must be in the written form in order to be effective.
    4. Any legal fees, separate copyright fees and the like shall be borne by the customer.
    5. Should a provision of the SERVICE AGREEMENT, including these GTCC, be or become ineffective or contain a gap, the legal validity of the remaining provisions shall remain unaffected. In such an event, the PARTIES undertake to replace the ineffective provision with an effective provision that comes as close as possible to the economic intentions of the PARTIES.
    6. The party placing the order for the CUSTOMER and accepting these GTCC guarantees that it makes its declarations in a legally binding way and is entitled to do so, with no further steps being required.