General Terms and Conditions for the

Use of the GNSS hardware

Status December 2023

Preamble
1. The SitePlan GmbHa limited liability company with its registered office in Wels and its business address at Bauernstraße 1, 4600 Wels, registered in the Austrian companies register of the Regional Court of Wels under FN 517375 x (the "Landlord") offers a software product under the "SitePlan" brand for GNSS-based navigation in plans, GNSS-based photo documentation and as-built documentation in the infrastructure and civil engineering sector, which is provided in the form of a client-server model as a "software-as-a-service" solution on external public cloud infrastructures via an Internet connection (the "Software solution"). The lessor grants rights to the software solution on the basis of a license agreement, including to the lessee.
2. The contractual partner is a company entered in the respective commercial register (hereinafter referred to as "Tenant", together with the landlord also "Parties" or individually "Party„).
3. In addition to the software solution, the Lessor shall also provide the Lessee with the appropriate equipment, such as in particular GNSS antennas including accessories (e.g. plumb bob with smartphone and tablet holder and power supply unit with charging cable) (the "Rental equipment") to which the lessor has acquired ownership from external producers. In addition, a SIM card with sufficient data volume and a correction data service (to increase the accuracy of the GNSS antenna) are included in the rental device.
4. These General Terms and Conditions (the GTC) regulate the general legal framework regarding the provision of rental equipment between the lessor and the lessee. The conclusion of the specific contractual relationship and the details of the main services to be provided by both parties are set out in the individual agreement concluded between the parties (the Individual agreement = offer). These GTC are an integral part of the individual agreements concluded in each case (individual agreement and GTC together, the Contract).
5. If the lessee has its own GTC, the lessee confirms by using the lessor's services that only these GTC shall apply to the contractual relationship between the lessee and the lessor and licensee. Any general terms and conditions of the lessee shall only apply if the licensor expressly confirms this in writing.

Subject matter of the contract
1. Transfer and included services
  1. These GTC govern the framework conditions for the transfer and use of rental equipment from the Lessor to the Lessee as agreed in the individual agreement, whereby the precise provisions, such as in particular the rental period and the amount of the fee, are set out in the individual agreement. The provisions of these GTC shall apply to the contractual relationships concluded under the respective individual agreements.
  2. Rental equipment shall be used exclusively by the Lessee and only by a person employed by the Lessee's company or one of its Group Companies (as defined below) (the "Users„).
  3. The Lessee is also entitled to use the rental equipment in companies in which the Lessee holds a majority (more than 50%) of the capital or voting rights directly (the "Group companies"), may be used. The lessee is liable to the lessor for group companies and users in the same way as for his own use.
  4. The rental equipment shall be returned at the end of the rental period. The hirer may not pass on the rental equipment to persons outside the hirer's company, in particular by transferring it for use or subletting it.
2. Usage regulation
  1. The Lessee shall ensure that the rental equipment is used by users exclusively for its intended purpose and in accordance with the recommendations of the respective manufacturer of the rental equipment. The Lessee shall also ensure that the rental equipment is stored properly and safely.
  2. The Lessee is prohibited from having third parties carry out any form of processing on the hardware of rental devices, in particular repairs in the event of hardware damage, and shall ensure that such processing is not carried out or commissioned by users. The Lessee shall fully indemnify the Lessor against all damage to rental equipment caused by such processing by third parties.
  3. The Lessee may, at its own responsibility, agree other services offered by the Lessor for training users in the use of the rental equipment separately with the Lessor at its own expense.
3. Place of performance and transfer of risk
  1. The place of performance of this contract is the business address of the lessor.
  2. The costs of (i) delivery of rental equipment and (ii) delivery of replacement rental equipment and return transportation of defective rental equipment in the course of replacement in accordance with point 2.2 shall be borne in full by the Lessor.
4. Handover and enrollment
  1. The rental equipment shall be delivered to the Lessee by the Lessor at the start of the rental period by a forwarding agent selected by the Lessor. The start of the rental period is the day on which the rental device is handed over to the shipping company.
  2. At the end of the rental relationship, the rented item shall be returned by the lessee in proper condition to the lessor's place of performance. The return shipment shall be carried out by a forwarding agent selected by the Lessor at the Lessor's expense. If the rented item is returned by the Lessee to a carrier other than the carrier selected by the Lessor, the Lessee shall bear both the costs and strict liability for the return transportation of the rented item to the Lessee.
  3. The Lessee undertakes to confirm this to the Lessor after receiving training on the use of the rental equipment. The Lessee shall ensure that all users are instructed in the proper use of the rental device.
Damage and replacement
1. Exchange
  1. If hardware damage to a rental device is reported to the Lessor's Service Desk during bank working days between 09:00 and 16:00 (CET/CEST) ("core hours") through no fault of the Lessee (see Section 2.1.3.), an equivalent replacement rental device will be sent to the Lessee within two weeks. If hardware damage to a rental device is reported outside core hours, it will be processed on the next banking day.
  2. As part of the delivery of the replacement rental device, the Lessee will also be sent a return slip for the return of the defective rental device. The Lessee undertakes to return the defective rental device to the Lessor immediately upon receipt of the replacement rental device using the return slip provided. If the Lessee returns the defective rental device to the Lessor in any other way, the Lessee shall be liable for the return transportation, regardless of fault.
  3. The lessor is not obliged to immediately carry out the replacement described above if, in the course of the inspection of the rental device and the existing hardware damage, the lessor or manufacturer (or a third party commissioned by them) determines that the hardware damage is attributable to the user or lessee. Replacement shall also not take place in the event of theft, robbery and other criminal property offenses, as a result of which the rental device was stolen from the user or tenant concerned.
  4. If the Lessee is provided with a replacement rental device by the Lessor despite the existence of one of the cases specified in Section 2.1.3, the Lessor shall be entitled to demand an additional fee for the replacement rental device in the amount of the fee agreed in the individual agreement for the first device (pro rata for the remaining term of the contract). This shall not affect the claim for payment or any claims for compensation for the first device.
2. Display
  1. Any defect, damage, loss or destruction of the rental equipment must be reported to the Lessor in writing without delay, otherwise the Lessor shall lose its claims under this contract. The hirer must immediately report the theft of the rental equipment from the hirer's possession to the police. The Hirer shall be responsible for providing evidence of the loss or theft of the rental equipment from his possession.
3. Service Desk
  1. The Landlord's Service Desk is available to the Tenant during core hours for contact via e-mail or telephone in accordance with the contact details and form on https://support.siteplan.at/ available.
  2. Contact with the Landlord's Service Desk is available to the Tenant free of charge from the Landlord.
Liability and exclusion of liability
1. Liability
  1. The lessor assumes no responsibility for the rental equipment being fully functional at all times and without interruption, beyond the state of the art prevailing in the professional IT industry. The lessor therefore does not provide any warranties, guarantees and/or assume any risk of success with regard to the rental equipment.
  2. The functionality of the rental device may be limited or non-existent due to events for which the Lessor is not responsible, such as events within the sphere of the utility service provider or due to natural phenomena (such as solar storms or other weather conditions that may affect the GPS). Notwithstanding the provision in Section 3.2.1, any warranty or other liability on the part of the Lessor is excluded in the event of such an occurrence.
  3. The rental company is not obliged to offer updates for the rental device or to carry out updates on it.
  4. The rental equipment is a tool that may only be used by specially trained specialists in infrastructure and civil engineering. Due to the wide range of potential applications, the rental equipment has not been tested in all situations in which it may be used. Any use of the rental equipment is solely at the lessee's own risk and the lessee agrees that the lessor accepts no liability for such use. The Lessor shall not be liable for the results arising from the use of the rental equipment. The hirer is responsible for the proper and professional use of the rental equipment.
2. Disclaimer
  1. The liability of the landlord is furthermore excluded for damages:
    1. arising from circumstances within the sphere of the tenant (including group companies and users);
    2. which arise due to circumstances in the sphere of supply service providers (in particular Internet providers and operators for the transmission of GNSS satellite signals);
    3. arising from force majeure;
    4. which do not constitute direct damage (thus in particular for indirect damage, loss of profit, loss of interest, loss of savings, consequential damage and financial loss, damage from third-party claims); or
    5. caused by slight negligence on the part of the landlord.
  2. To the extent permitted by law, the total liability of the Lessor is limited to 100% of the net remuneration received from the Lessee under the individual agreement.
  3. The limitation period for all claims for damages by the tenant against the landlord is six months after knowledge of the damage and the damaging party, but in any case no longer than one year after conclusion of the individual agreement.
Terms and termination
1. Contract term and termination of the contract
  1. The duration of the respective tenancy is set out in the individual agreements (the "tenancy term"). The contractual relationship begins when the individual agreements are signed by all parties and is limited to the end of the rental period.
  2. Unless otherwise stipulated in the individual agreement, the termination of individual agreements for a fixed term does not require any additional notice of termination, but takes place automatically by expiry of the last day of the rental period specified in the individual agreement, irrespective of any further use of the rental equipment by the tenant after the end of the rental period (tacit renewal of the agreement is not possible).
  3. During the rental period, ordinary termination of the individual agreements by the parties is not permitted if the rental period is limited.
  4. This does not affect the right of a contracting party to terminate the individual agreement with immediate effect for good cause. Such good cause, which entitles the landlord to terminate the agreement immediately, exists in particular if the tenant continues to be in arrears with payment of the usage fee despite three reminders.
  5. At the end of the contract term or the rental period, (i) all rental equipment must be returned to the Lessor by the Lessee immediately, but at the latest within 3 bank working days of the end of the contract term or rental period, and (ii) all outstanding usage fees (if applicable, pro rata temporis in the event of extraordinary termination up to the day on which the termination takes effect) must be paid to the Lessor within 14 days. The rental equipment (i) must be reset to the manufacturer's factory settings and thus, in particular, cleaned up by deleting all user data, and (ii) must be returned by the Lessee to the Lessor in a fully functional condition appropriate to its age and intended use.
Property
The rental device and all its components shall remain the property of the lessor at all times. Pledging, transfer by way of security, sale or transfer of the rental equipment to third parties is expressly prohibited, unless otherwise stipulated in this contract or the individual agreement.
Duty of care
The renter is obliged to take suitable precautions to ensure that the rental equipment is properly stored and adequately protected against damage, theft or loss throughout the rental period.
Transfer of risk
The risk of accidental loss of the rental equipment shall pass to the Lessee upon handover of the rental equipment until it is properly returned to the Lessor. In this respect, the Hirer shall be liable for loss, destruction or any damage to the rented item during the respective period, even if the Hirer is not at fault.
Applicable law
This contract (including the individual agreement and the GTC) and its legal validity, interpretation and performance as well as all non-contractual obligations resulting therefrom shall be governed by Austrian law to the exclusion of national and international conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods ("UN Sales Convention") shall not apply.
Place of jurisdiction
All disputes arising out of or in connection with this contract (including but not limited to disputes regarding the existence, validity or termination of this contract or any non-contractual obligation arising out of or in connection with this contract) shall be subject to the exclusive jurisdiction of the competent court for commercial matters in Vienna (Austria), Innere Stadt.
Final provisions
1. Indexation and accounting
  1. The landlord is entitled to make annual index adjustments in advance in accordance with the consumer price index 2020 published by Statistics Austria (the month in which the contract is concluded is the starting point = 100 for the purposes of indexation) to the charges set out in an individual agreement with effect for the following billing period.
  2. The fee shall change to the extent that the consumer price index 2020 has changed in the month of adjustment compared to the starting basis. If the applicable index figure has not yet been published at the time the value protection is carried out, the last published index figure shall be used and any difference from the applicable index figure shall be offset from its publication. The index figure used for value protection is the starting point for the next year's value protection. If the consumer price index 2020 is no longer published, the index that follows or most closely corresponds to the consumer price index 2020 shall be used as the basis for value protection. If it is no longer possible to use an index calculation at all, the value protection shall be calculated according to analogous principles as were last used for the index calculation. A price adjustment by the landlord is also permissible if other external factors over which the landlord has no influence (in particular increases in or the introduction of new government fees) increase during the rental period; in this case, the adjustment shall be made in the same proportion as the increase in the respective external factor.
  3. All costs, fees and other prices stated in this contract or in an individual agreement are net amounts excluding statutory VAT, unless explicitly stated otherwise. If necessary, the statutory VAT will be added to the net amounts when the invoice is issued.
  4. The landlord is obliged to properly invoice the tenant, whereby the landlord agrees that invoices may be issued and transmitted electronically.
2. Offsetting and retention
  The assertion of rights of retention or offsetting with claims against the Lessor by the Lessee is excluded.
3. Waiver
  The parties declare that they are in full agreement on the appropriateness of performance and consideration. To the extent permitted by law, they expressly and irrevocably waive any right to rescind, cancel or adjust the contract in whole or in part on the grounds of a reduction of more than half of its true value (laesio enormis)for error or any other legal reason.
4. Messages
  1. All notices under this contract shall be sent to the Lessor in writing by registered letter or by e-mail of the same content to the following address and to the attention of the contact person named.
    SitePlan GmbH
    Bauernstraße 1, 4600 Wels
    Contact persons: Martin Beiganz, Florian Fischer
    E-mail: office@siteplan.at
  2. The Lessee shall provide the Lessor with the contact details relevant for the transmission of notifications immediately after conclusion of the contract. If no such transmission of contact data takes place, the Lessor shall be entitled to use the contact data and contact persons used in the context of the conclusion of the contract for the purposes of notifications.
  3. The date of posting shall be decisive for the timeliness of all non-electronic declarations and notifications in connection with this Agreement. For the timeliness of all declarations and notices in connection with this contract that are transmitted electronically via e-mail, these notices shall be deemed to have been effectively delivered on the same banking day if (i) sent on a banking day during core hours, or (ii) sent outside the times under (i) or not sent on a banking day. The Lessor's obligation pursuant to Section 10 para E-Commerce Act is excluded for electronic notifications of the Lessee.
  4. The parties undertake to notify the other party immediately of any change or extension of the contact persons or address by electronic communication.
5. Completeness
  1. All annexes attached to this contract and all appendices/appendices attached to the annexes to this contract form an integral part of this contract.
  2. The contract including annexes (in particular the current individual agreement) contains the complete agreement of the parties on the subject matter of this contract and replaces (any) previous or different agreements made between the parties. There are no other ancillary agreements.
  3. Priority rule: Provisions and contents in the individual agreement that deviate from or contradict this contract shall take precedence over these GTC.
  4. Terms and conditions or other provisions of the tenant with a similar purpose that deviate from the contract are invalid, even if they claim (exclusive) validity.
  5. The parties state that there is no interaction between the license agreement for the software solution (see preamble (A)) on the one hand and this agreement on the other, in particular not in such a way that they mutually constitute a basis for business or any other basis for claims.
6. Contract amendments
  Amendments or additions to this contract must be made in writing, unless otherwise stipulated herein, unless a stricter form is required by law. The written form requirement also applies to amendments, terminations or a waiver of compliance with this clause 10.7.
7. Partial ineffectiveness
  Should a provision of this contract or a subsequent amendment and/or supplement be or become ineffective, invalid or unenforceable, this shall not affect the effectiveness, validity or enforceability of all other provisions. In the event that a provision of this contract is ineffective, invalid or unenforceable, the parties shall be deemed to have agreed on a provision that comes as close as possible to the economic result of this provision and is not ineffective, invalid or unenforceable.
8. Assignment, legal succession
  1. Rights and obligations arising from the contract may not be assigned in whole or in part without the prior written consent of the other party.
  2. The parties undertake to transfer the rights and obligations arising from and in connection with the contract to their legal successors.

Appendix 1 - Definitions

The following definitions apply to the contract (including the preamble and the annexes, as well as the individual agreements):

Accounting period: means the settlement period agreed in the individual agreement.
Banking day: means a day (other than a Saturday or Sunday) on which banks in Austria are open for general business.
Users: has the meaning assigned to it in section 1.1.2.
Individual agreement: means the individual agreement concluded between the parties (signed offer).
Force Majeure: means unforeseeable and unavoidable events that are beyond the reasonable control of a party and prevent it from fulfilling all or part of its contractual obligations. Such events include, but are not limited to: natural disasters (such as earthquakes, floods, hurricanes), wars, riots, terrorism, epidemics, pandemics, radiation or chemical accidents, explosions, governmental orders or embargoes, labor disputes, general power or supply failures and other similar events generally recognized as force majeure.
GNSS: means global navigation satellite system.
GPS: means global positioning system.
Group companies: has the meaning assigned to it in section 1.1.3.
Core times: has the meaning assigned to it in section 2.2.1.
Rental period: has the meaning assigned to it in section 4.1.4.
Tenant: has the meaning ascribed to it in point (B) of the preamble.
Rental equipment: has the meaning ascribed to it in point (C) of the preamble.
Party, Parties: has the meaning ascribed to it in point (B) of the preamble.
Software solution: has the meaning ascribed to it in point (A) of the preamble.
Landlord: has the meaning ascribed to it in point (A) of the preamble.
Contract: has the meaning ascribed to it in point (D) of the preamble.
Contract term: has the meaning assigned to it in section 4.1.1.