This SaaS agreement is valid for users who create their own application within the da-ta1.io cloud service and are therefore “application owners”. It is not valid for registered users who only deliver data as so-called “collectors”.
Part II of this agreement is valid for all users with a free plan (“Free Plan”), Part III for all users with a chargeable Plan (“Enterprise Plan”).
II. FREE LICENSE
1.1. Linearis GmbH, Zirkusgasse 15/17, 1020 Vienna, Austria (hereinafter referred to as “Linearis”) grants the contractual partner („customer“) the right to use the soft-ware solution, available at www.data1.io, not exclusively free of charge.
2. Grant of license
2.1. The customer acquires the non-exclusive right to use the software for the pur-poses of his company, limited in terms of location, content and time to the pur-poses of the contract, until revoked at any time (permission to use work within the meaning of § 24 para. 1 first sentence of the Austrian Copyright Act „UrhG“ „Wer-knutzungsbewilligung“). The owner of the right to use the work (within the mean-ing of § 24 para. 1 second sentence UrhG „Werknutzungsrecht“) is and remains Linearis.
2.2. The customer is only authorized to use the software within the company. The transfer of the software for use by third parties or the other provision of the soft-ware to third parties, for example by way of leasing, is not permitted.
2.3. The customer is only entitled to copy the software as far as this is necessary for the intended use of the software according to this contract item. The customer is prohibited from passing on (distributing) the software to third parties against pay-ment and/or free of charge. The Customer is not entitled to duplicate the user documentation or parts thereof or to hand it over to third parties.
2.4. In any case, the source code remains with the Linearis.
2.5. After termination of the contractual relationship, the customer is obliged to delete the software and copies thereof from his IT infrastructure.
3. Rights and duties of the customer
3.1. The customer undertakes to keep all access credentials secret.
3.2. The customer undertakes to refrain from any actions that endanger the function-ality or the operation of the software. In particular, the customer is prohibited from actions that scan or test weak points of the software, bypass security systems or access systems of the software or integrate malicious programs into the software.
4. Payment conditions
4.1. The license for the software is granted free of charge.
5. Warranty and liability
5.1. Linearis provides no warranty for the functionality of the software or that it is suit-able for a particular purpose.
5.2. Linearis is not liable for the speed of the software, data loss or the correctness of the calculated data. Furthermore, Linearis shall not be liable unless the damage was caused intentionally or by gross negligence. This does not apply to injuries to life or health of a person.
6. Duration of the contract
6.1. Linearis has the right to revoke the licence grant at any time and block access to the software.
7. Confidentiality and data privacy
7.1. The customer receives all information on data protection at www.data1.io/privacy-policy.
8. Final provisions
8.1. The exclusive place of jurisdiction arising from or in connection with this contract shall be the competent court in Vienna-Leopoldstadt.
8.2. The contract and the resulting claims shall be governed exclusively by Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods.
8.3. General terms and conditions of the customer shall not apply.
8.4. If any provision of this Agreement is or becomes void, unenforceable and/or inva-lid, this shall not cause the voidness, unenforceability and/or invalidity of the en-tire agreement. In such a case, the parties undertake to replace the void, unen-forceable and/or invalid provision with a provision that comes closest to the eco-nomic purpose of the void, unenforceable and/or invalid provision.
III. CHARGEABLE LICENSE
Concluded between Linearis GmbH, Zirkusgasse 15/17, 1020 Vienna, Austria, repre-sented by Mag. Robert Lochner (hereinafter referred to as “Linearis”) and the contrac-tual partner [customer], represented by [contact person according to order] (herein-after referred to as „customer“).
Together they are called parties or contracting parties.
1.1. Linearis develops and distributes the software solution www.data1.io, a web-based application for collecting, aggregating and sharing data within the compa-ny.
1.2. The subject of this agreement is the provision of the software as a service (“Soft-ware-as-a-Service”), as well as the associated maintenance service of Linearis.
2. Subject of the contract
2.1. The subject of this agreement is the non-exclusive use of the software data1.io (hereinafter referred to as “the Software”) according to point 3 of this agreement by the customer, provided and maintained as Software-as-a-Service. The scope of services and functions of the Software is set out in the documentation of the Software, available at www.data1.io. The scope of services of the Hosting is set out in the agreed service level according to point 5 of this Agreement.
2.2. The software can only be accessed via the Internet, therefore the function of the software depends on a working Internet connection. The system requirements necessary for the operation of the Software are set out in the supplement help.data1.io/hc/en-us/articles/360013593359, which is an integral part of this Agreement.
3. Rights of use
3.1. The customer acquires the non-exclusive right, limited in time, place and content to the duration and for the purposes of this agreement, to use the software for the number of users licensed in each case for the purposes of his company („Werknutzungsbewilligung(en)“ in the sense of § 24 para. 1 first sentence UrhG).
3.2. It is hereby clarified that Linearis is and remains the owner of the rights to use the software („Werknutzungsrecht“ as defined in § 24 para. 1 second sentence of the UrhG).
3.3. The customer is only authorized to use the software within the company. The transfer of the software for use by third parties or the other provision of the soft-ware to third parties, for example by way of leasing, is not permitted.
3.4. The customer is prohibited from passing on (distributing) the software to third parties against payment and/or free of charge. The customer is not entitled to re-produce the user documentation or parts thereof or to pass it on to third parties.
3.5. The source code of the software always remains with Linearis.
3.6. Upon termination of the contract, the Customer is obliged to remove the software, as well as copies thereof, from its IT infrastructure.
4.1. Working day means the days from Monday to Friday, excluding legal holidays in Austria.
4.2. Business hours means the time from 9:00 a.m. to 5:00 p.m. on working days (Vi-enna time zone).
4.3. Documentation refers to the information on the functional scope of the software that Linearis makes available to the customer.
4.4. Defect means any not insignificant, verifiable and reproducible deviation of the Software from the functional scope of the Software as specified in the documen-tation.
Excluded are such functional deviations that are due to a bug, defect or error in third-party software that does not originate from Linearis and is used together with the software.
4.5. Bugfixes refers to changes to the software that eliminate errors.
4.6. Update means the update by an extension within a version (for example from version 1.0 to version 1.1).
4.7. Upgrade means the change from one version to the next higher version (for ex-ample from version 1.4 to version 2.0).
4.8. Software-as-a-Service (SaaS) means the use of the software on a system of the licensor (hosting) including maintenance (bug fixes, updates and upgrades)
4.9. User support means any kind of assistance to the end user via telephone, remote maintenance, e-mail or chat, which Linearis provides to the customer in connec-tion with the software. User support does not include technical support for the system or specialist advice on the design of the system.
5.1. Linearis undertakes to make the software available to the customer as Software-as-a-Service to the extent of 99%, calculated over one year (hereinafter referred to as availability). Availability shall be deemed to be given if the software can be accessed via an Internet connection that complies with the system specifications by an Internet browser specified in the system specifications.
5.2. Maintenance work announced by Linearis does not reduce availability. Wherever possible, Linearis will not carry out maintenance work on working days or during business hours.
5.3. Within the scope of this agreement, the customer automatically receives all avail-able updates, upgrades and bug fixes for the software. However, Linearis is not obliged to provide updates, upgrades and bug fixes for the software.
5.4. The customer undertakes to report errors in the software to Linearis User Support immediately after they are detected.
5.5. Errors must be reported to Linearis via the support tool provided by Linearis, which can be found at help.data1.io.
5.6. The maximum response time for errors is 72 hours within business hours.
6. Rights and duties of the customer
6.1. The customer undertakes to keep all access credentials secret.
6.2. The customer undertakes to refrain from any actions that endanger the function-ality or the operation of the software. In particular, the customer is prohibited from actions that scan or test weak points of the software, bypass security systems or access systems of the software or integrate malicious programs into the software.
6.3. The customer shall ensure that Linearis is able to cooperate with the customer’s personnel (including external personnel) in the fulfilment of its service obligations.
7. Rights and duties of Linearis
7.1. Linearis has the right to set deadlines for adjustments and improvements to the software itself. There is no obligation to publish improvements to the software.
8. Payment conditions
8.1. The current fee for the use of the Software-as-a-Service (“SaaS rental”) is derived from the offer and is exclusive of VAT (hereinafter referred to as the current fee). The current fee is due on the first of each month, alternatively once a year in ad-vance.
8.2. If extraordinary services from Linearis are retrieved by the customer, the parties agree an hourly or daily rate for those services.
8.3. The Parties agree on the stability of the value of the current remuneration, whereby the index of consumer prices 2020 published monthly by the Federal Statistical Office of Austria shall serve as a measure of value. The current fee shall be increased annually to the extent resulting from the change in the Con-sumer Price Index 2020 at an annual interval compared to the month of conclu-sion of this Agreement or the last increase or reduction of the current fee. Should the above-mentioned index no longer be published, Linearis shall be entitled to apply another comparable index as determined by the Federal Institute of Statis-tics Austria or its legal successor or a similar institution. Linearis is free to adjust the index annually or to suspend it in individual years.
8.4. Taxes and duties at the customer’s premises, which are related to the current payment, are to be paid by the customer. The customer hereby indemnifies Line-aris for such payments.
8.5. If the customer is in delay of payment for more than one month, Linearis shall be entitled to prohibit the customer from further use of the software and to suspend all services.
8.6. The customer shall not be entitled to set off claims against Linearis unless these claims have been legally established by a court.
8.7. Linearis is entitled to check compliance with the contractual licence conditions on site and/or by means of software inventory tools. The customer shall be obliged to cooperate in this audit and in particular to permit inspection of the terminal equipment. Each party shall bear its own costs of the expenses incurred in the course of the audit. If in the course of the audit serious misconduct is found, the customer shall bear the costs of the audit in full.
9. Warranty and liability
9.1. Linearis holds warranty that the functions of the software described in the docu-mentation are free from defects. Linearis does not warrant that functions which are not described in the documentation will work without defects or that they will be available in later versions of the software.
9.2. Linearis is not liable for the speed of the software, data loss or the correctness of the calculated data. Furthermore, Linearis shall not be liable unless the damage was caused intentionally or by gross negligence. This does not apply to injuries to life or health of a person.
9.3. Linearis’s liability shall in any event be limited to the amount paid by the customer as current remuneration in the last three months before the event giving rise to li-ability.
9.4. Linearis shall not be liable if it is unable to meet its obligations under this contract due to circumstances beyond its control. Linearis cannot guarantee the availabil-ity of energy, telecommunications services or components. Corrections of faults that become necessary due to cases of force majeure in the customer’s area are not covered by fixed prices and will be charged extra.
10. Duration of the contract
10.1. This Agreement is concluded for an indefinite period of time and may be termi-nated by either party by giving one month’s written notice to the end of the re-spective contractual year.
10.2. This contract shall commence upon confirmation of the customer’s order by Line-aris. The agreement may be terminated by Linearis for good cause with immedi-ate effect. Good cause shall in any case be deemed to exist if
10.2.1. the customer violates the provisions of this contract and does not cease the behaviour contrary to the contract within a period of seven working days even after a written reminder;
10.2.2. the customer is insolvent or insolvency proceedings are opened over the customer’s assets or an application for the opening of such proceedings is rejected for lack of cost-covering assets.
11. Data protection and protection of business and trade secrets
11.1. The customer receives all information on data protection at www.data1.io/privacy-policy.
11.2. The Parties undertake to comply with § 6 DSG („österreichisches Datenschutz-gesetz“) and to take appropriate secrecy measures in the sense of § 26b para. 1 no. 3 UWG („österreichisches Gesetz gegen den unlauteren Wettbewerb“) to pro-tect business and trade secrets. Freelancers and vicarious agents shall also be deemed employees in this sense. Even after complete performance of the parties and after termination of all continuous obligations, the provisions regarding se-crecy and data protection shall remain in force for an indefinite period of time.
11.3. Linearis is entitled to use the content and fact of the order in reference lists. In this context it may also use the logos of the customer.
12. Final provisions
12.1. The agreed place of performance is Linearis’ registered office in 1020 Vienna, Austria.
12.2. The exclusive place of jurisdiction resulting from or in connection with this con-tract shall be the competent court in Vienna-Leopoldstadt.
12.3. The contract and the resulting claims shall be governed exclusively by Austrian law, excluding the UN Sales Convention.
12.4. General terms and conditions of the customer shall not apply.
12.5. Each party is obliged to notify the other party in writing of any changes to its busi-ness address and/or delivery address and e-mail address. Prior to such notifica-tion, each party shall be entitled to send notices and declarations of intent of all kinds to the other party’s previously known business address/address for service or e-mail address and these shall be deemed to have been duly delivered there.
12.6. This Agreement reflects the agreements of the parties correctly and completely; there are no verbal collateral agreements.
12.7. Headings in this Agreement are for convenience only and shall not limit or other-wise alter the terms of this Agreement.
12.8. Amendments and/or supplements to this contract must be made in writing in or-der to be legally effective; the written form is also necessary for waiving this for-mal requirement.
12.9. If any provision of this Agreement is or becomes void, unenforceable and/or inva-lid, this shall not cause the voidness, unenforceability and/or invalidity of the en-tire Agreement. In such case, the parties undertake to replace the void, unen-forceable and/or invalid provision with a provision that comes closest to the eco-nomic purpose of the void, unenforceable and/or invalid provision.