General Terms and Conditions for the

Use of the SitePlan software

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 (hereinafter referred to as "Licensor") offers a software product under the "SitePlan" brand consisting of several modules for GPS and/or GNSS-based navigation in plans, photo documentation and as-built documentation in the construction 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 licensor is the owner of all rights to the SitePlan software that are required for the fulfillment of this contract.
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. The contractual partner is a company entered in the respective commercial register (hereinafter referred to as "Licensee", together with the licensor also "Parties" or individually "Party„).
4. The licensee intends to use the SitePlan software for internal purposes in order to simplify navigation, inventory and surveying activities in the field of "civil engineering".
5. These General Terms and Conditions (the GTC) govern the general legal framework of the relationship between licensor and licensee. 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 agreements 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).
6. If the licensee has its own GTC, the licensee confirms by using the licensor's services that only these GTC shall apply to the contractual relationship between the licensee and the licensor. Any general terms and conditions of the licensee shall only apply if the licensor expressly confirms this in writing.

Subject matter of the contract
1. Software, documentation and services
  1. These GTC regulate the framework conditions for the granting of rights of use to and the provision of the SitePlan software and SitePlan documentation in return for payment, as agreed in the individual agreement, as well as for the provision of SitePlan services by the licensor to the licensee.
  2. The Licensee confirms (i) to have read and fully understood the SitePlan documentation, (ii) to be fully aware of the system requirements, compatibilities and functionalities of the SitePlan software based on the SitePlan documentation, and (iii) to be aware of the availability of the SitePlan software through Internet access to external public cloud infrastructures that have ISO/IEC 27001 certification for essential standard software components.
2. Granting of rights
  1. The licensee acquires the worldwide, non-transferable, non-sublicensable, non-exclusive right to use the SitePlan software (license to use the SitePlan software) from the date of full payment of the license fee in accordance with Section 6.1 for the duration of this agreement.
  2. The SitePlan software may be used by the licensee at will for legal, non-commercial purposes, with the exception of the following factually restrictive usage regulations. However, the SitePlan software may not be used in areas in which increased safety requirements are necessary, be it - without any claim to completeness - for construction measures at nuclear facilities or in military areas for the construction of military infrastructure, in which incorrect use or functionality of the SitePlan software could lead to personal injury and/or high property or financial losses. Any use of the SitePlan software in such sensitive (infrastructure) areas requires the prior written approval of the licensor.
  3. The licensee is also entitled to use the SitePlan software in companies in which the licensee directly holds a majority of the capital or voting rights ("group companies"). The licensee is liable to the licensor for group companies as if it were the licensee's own fault.
  4. Notwithstanding the above granting of rights under Section 1.2.1, the Licensor remains entitled in particular to make modifications (see Section 7) to the SitePlan software. All documents relating to the SitePlan software and, in particular, the SitePlan documentation, source codes, object codes and data carriers, regardless of their type, are and remain the property of the Licensor.
  5. In particular, the licensee is not entitled to make any form of modification to the SitePlan software (in particular reverse engineering, decompilation, etc.) or to reproduce, duplicate, make publicly accessible or exploit it in any other way, whether for payment or free of charge.
3. Provision
  1. The Licensor shall make the SitePlan software and SitePlan documentation available to the Licensee electronically on the day of full payment of the license fee in accordance with Section 6.1, so that the Licensee (including group companies and users) can subsequently use the SitePlan software in accordance with the User Guideline and SitePlan documentation at any time autonomously on the basis of the provisions of this Agreement. The SitePlan app is made available for download by the user from internet-based distribution platforms - the "App Store" of Apple Inc and the "Play Store" of Google Inc. In addition to the SitePlan app, users can also access and use the software solution via a web application. According to the SitePlan documentation, this web application is available via standard web browsers.
  2. The place of performance for the licensor's delivery and service items is Vienna (Austria), unless otherwise stipulated in specific points of the contract.
  3. The Licensee may, on its own responsibility, agree other services offered by the Licensor for the training of users and administrators separately with the Licensor at its own expense.
  4. SitePlan services are provided exclusively via digital remote support during core hours.
Availability and SitePlan services
1. Availability of the SitePlan software
  1. The Licensor guarantees that the Licensee will be able to use the SitePlan Software with an availability of at least 99 % within a license period ("availability quota") in accordance with the provisions of this Agreement. Unavailability exists if the use of the SitePlan software is not possible due to an error of error class 1 (see point 4.2) or error class 2 (see point 4.3).
  2. The licensee is not entitled to use the SitePlan software during times outside the availability quota, even if the SitePlan software is available during these times. These times are required by the Licensor, in particular to carry out maintenance work. Times during which the use of the SitePlan software for the aforementioned activities is not available to the licensee must be announced at least 72 hours in advance.
  3. Failures or malfunctions that are not exclusively directly attributable to the Licensor, such as in particular failures or malfunctions within the meaning of Section 5.2.3, shall not be counted towards the availability quota and shall not give rise to any legal claims against the Licensor.
  4. The licensee can independently check the availability of the SitePlan software at https://status.siteplan.at/ and view them on an ongoing basis. The measurement results are made available to the licensee electronically in the form of freely accessible printouts at no additional charge. The measurements recorded by the licensor are binding for the licensee.
2. SitePlan services
  1. Faults and errors are diagnosed and rectified on a case-by-case basis on the basis of an electronic message including a comprehensive description of the error sent by the licensee to the Service Desk.
  2. The Service Desk is open on bank working days from 09:00 to 16:00 (CET/CEST) ("Core times") for notifications pursuant to Section 2.2.1. Notification by the Licensee after the end of a banking day shall be deemed to have been received on the next banking day at 09:00.
3. Response times, updates and maintenance
  1. The response time of the Service Desk and the associated times for rectifying errors are based on (i) the error classes, (ii) the service level in accordance with the individual agreement, and (iii) the time of receipt of the notification by the Service Desk in accordance with Section 2.2.2.
  2. The licensor decides on the type and scope of the error correction at its own discretion. The elimination of an error can therefore be carried out in particular by a hotfix or also by a workaround solution on the part of the licensor. A workaround can be a "rollback" to the last stable version of the SitePlan software.
  3. Adaptive maintenance is planned maintenance work. A completion date must be set by the licensor for all changes that are carried out as part of adaptive maintenance work. This applies both to workaround solutions and to final implementations as part of adaptive maintenance.
  4. In the course of an update, the Licensor may record and evaluate the quantitative use of the functions of the SitePlan software on the basis of anonymized user data for the purpose of improving the SitePlan software.
4. Subcontractor
  The transfer of the licensor's performance obligations (in particular to maintain the SitePlan services) to subcontractors is at the licensor's own discretion.
Customer obligations and conditions of use
1. Special obligations and declarations of the licensee
  1. The Licensee declares that it has carefully checked the content and scope of the functionalities of the SitePlan software before concluding this contract (see also point 1.1.2) and is aware that the Licensee will have to make an effort (in particular to check and verify the results of using the SitePlan software) in order to be able to use the SitePlan software for its intended purpose.
  2. Furthermore, the Licensee acknowledges the Licensor's careful selection of external providers of public cloud infrastructures - certified for the functionality of the essential standard software components - and the associated protection of data on the basis of the state of the art in security technology prevailing in the professional IT industry as a sufficient level of protection against data loss and to prevent unauthorized access by third parties to the data of the Licensee, group companies and users.
  3. The licensee is solely responsible for compliance with the national and international legal provisions associated with the use of the SitePlan software. It is also the Licensee's responsibility to find out whether the use of the SitePlan software in the company or a group company requires any approvals or agreements under private law, labor law (in particular through the consent of a works council) or public law in accordance with the respective national legal provisions.
  4. The licensee shall ensure that in connection with the use of the SitePlan software:
    - does not violate applicable law, including but not limited to industrial property rights, fair trading rights and personal rights of third parties;
    - refrain from any behavior of an obscene, harassing or immoral nature;
    - all data protection obligations are complied with;
    - all obligations of Group Companies and Users under the User Policy are complied with; and
    - be reimbursed for expenses incurred by the Licensor as a result of the inspection following the submission of a malfunction report (pursuant to Section 2.2.1) if the inspection reveals that the malfunction was not attributable to the Licensor's sphere but to the Licensee's sphere (see Section 5.2.3(a)).
  5. The licensor is entitled to temporarily or permanently block access to the SitePlan software or to terminate the contract for cause in the event of a breach of this contract and/or the user guidelines by the licensee, a group company, the user or a third party attributable to the aforementioned. Access to the SitePlan software will only be restored once the infringement has been permanently eliminated or the risk of repetition has been ensured by issuing a corresponding declaration to cease and desist.
2. Licensee and user requirements
  1. The requirements (minimum hardware and software equipment including any supplementary software or hardware) for the use of the SitePlan software can be found in the SitePlan documentation. The provision of these minimum requirements and the telecommunication services are not the subject of this contract, but are the sole responsibility of the licensee, the group company or the user.
  2. If supplementary software (in addition to the operating system of the user's terminal device) or supplementary hardware from third parties (in particular web browser software, software for GNSS antennas or GNSS antenna) is required for the use of the SitePlan software, the licensee, the group company or the user must independently take care of their installation and maintenance as well as the rights of use of the corresponding third-party provider. The licensee shall indemnify and hold the licensor harmless in this context, irrespective of fault.
Error classes
1. General information
  1. The parties agree on the four (4) error classes listed below for the classification of errors in the SitePlan software. Errors whose elimination is covered by this contract do not include, in particular, malfunctions of the SitePlan software within the meaning of Section 5.2.3.
  2. If an error occurs, the Licensee undertakes to immediately provide the Licensor with a concrete, comprehensible and complete error message, which must contain all information that enables the Licensor to narrow down the cause of the error and determine strategies for rectifying the error. This includes, in particular, information about the type of error, the components affected by the error and the frequency of occurrence of the error (including anonymized information such as screen videos, screenshots, error logs, etc.). The error message only triggers the corresponding response times in accordance with section 2.3.1 if it is communicated electronically to the Service Desk by a contact person of the Licensee.
  3. The assignment to the defect classes shall be made conclusively by the Licensor - if not clearly or, from the Licensor's point of view, incorrectly assigned by the Licensee under this Section 4.
2. Error class 1: "critical"
  1. The proper use of the SitePlan software is not possible or is unreasonably restricted. The error has a serious impact on essential functions and/or the security of the SitePlan software. These are errors that preclude further data processing and/or further work for more than 50 % users.
  2. Function-related examples: System shutdown without restart, data loss/data destruction, unable to add files.
3. Error class 2: "severe"
  1. The appropriate use of the SitePlan software is restricted if more than 35 % users are affected. The error has a significant impact on essential functions and/or the security of the SitePlan software, but allows work to continue.
  2. Function-related examples: noticeable undercutting of the agreed performance data of the SitePlan software.
4. Error class 3: "light"
  1. The appropriate use of parts of the SitePlan software is slightly restricted. The error has an insignificant impact on the functionality and/or security of the SitePlan software and allows further use of the SitePlan software without restrictions and with only minor limitations.
  2. Function-related examples: incorrect error message/system goes into a waiting state and can only be reactivated by pressing a button.
5. Error class 4: "trivial"
  1. The appropriate use of the SitePlan software is possible without restriction. The error has no or only a minor impact on the functionality and/or security of the SitePlan software. These are mainly "cosmetic errors".
  2. Function-related examples: Disturbing additional output on the screen, documentation errors/writing errors.

Performance disruption and liability framework

Performance disruptions
1. The Licensor assumes no responsibility for the SitePlan software being error-free and fully functional at all times and beyond the state of the art prevailing in the professional IT industry. The Licensor therefore makes no warranties, guarantees and/or assumptions of risk of success with regard to the SitePlan software, in particular with regard to the particular suitability of the SitePlan software for a specific purpose.
2. If errors occur, the Licensee shall immediately notify the Licensor in accordance with Section 4.1.2. If the Licensee fails to notify the Licensor immediately, it may not assert any claims against the Licensor unless the Licensee proves that the Licensor caused the error intentionally or through gross negligence. The existence of errors must always be proven by the licensee.
3. After proper notification of the Service Desk of an error in the SitePlan software, the Licensor shall make every reasonable effort to restore the contractual status within the relevant deadlines.

Liability and exclusion of liability

The SitePlan software is a tool that may only be used by specially trained professionals in the construction sector. Due to the wide range of potential applications, the SitePlan software has not been tested in all situations in which it may be used. Any use of the SitePlan software is solely at the licensee's own risk and the licensee agrees that the licensor assumes no liability for such use. The Licensor is not liable for the results obtained from the use of the SitePlan software. The Licensee is responsible for the proper and professional use of the SitePlan software. This responsibility includes (but is not limited to) the determination of suitable practical applications for the SitePlan software. The Licensee is also responsible for determining the adequacy of independent procedures for checking the reliability and accuracy of any performance of the SitePlan software (in particular by checking on site the positional and elevational correctness of the (plan) referencing and thus the survey results).
The Licensor is not responsible for the operation or failure of operation of the Global Positioning System (GPS) satellite or Global Navigation Satellite System (GNSS) base station or the availability of GPS or GNSS satellite signals.
The liability of the licensor is furthermore excluded for damages:
1. caused by circumstances within the sphere of the Licensee (including group companies and users). This includes, in particular, malfunctions or faulty results of the SitePlan software due to (i) use of the SitePlan software contrary to the specifications in the SitePlan documentation and/or the user guidelines, (ii) non-compliance with technical requirements for hardware, software or connectivity (cf. Section 3.2), or (iii) errors that would have been corrected by a release and an update was not carried out;
2. which arise due to circumstances in the sphere of a third-party provider. This includes in particular the limited or lack of (i) availability of the SitePlan app due to disruptions in Internet-based distribution platforms, (ii) functionality or compatibility of the SitePlan software due to disruptions in supplementary software or supplementary hardware (see section 3.2.2), or (iii) usability of the SitePlan software due to disruptions in external public cloud infrastructures;
3. which arise due to circumstances in the sphere of supply service providers (in particular Internet providers and operators for the transmission of GPS or GNSS satellite signals);
4. arising from force majeure;
5. caused by input errors by a user (in particular in the case of points recorded in nature for the purpose of correct georeferencing), errors in data processing or loss of content, information or data;
6. which arise due to deviations between original planning data and the actual position of, in particular, pipes, shafts and foundations;
7. caused by slight or gross negligence.
In the event of force majeure, the Licensor shall be released from its obligation to fulfill its contractual obligations and from any liability for damages or any other claim against it from the time at which the corresponding obstacle makes it impossible for the Licensor to provide the service, provided that the Licensee is notified of the existence of force majeure within a reasonable period of time. If the licensor fails to notify the licensee within a reasonable period of time after the existence of force majeure, the exemption shall take effect from the time at which the notification reaches the licensee. If the effect of force majeure is temporary, the consequences set out above shall only apply for as long as the impediment asserted prevents the licensor from performing the contract.

In the event of a breach of warranty pursuant to Section 2.1.1, the Licensor shall grant the Licensee credits for downtime (the "Service Level Credits") based on the current availability measurements per license period on a pro rata basis as follows:

Availability	Service Level Credit
99 % or more	No service level credit
98.999 % to 98 %	5 % of the net license fee
97.999 % to 97 %	10 % of the net license fee
96,999 % to 96 %	15 % of the net license fee
95.999 % to 95 %	20 % of the net license fee
94,999 % to 94 %	25 % of the net license fee
93.999 % to 93 %	30 % of the net license fee
under 93 %	35 % of the net license fee

Service Level Credits are credited to the licensee's next invoice and reduce the licensee's payment obligation to the licensor accordingly.
The total liability of the licensor within a license period is limited exclusively to claims arising from service level credits and in total to 35 % of the net license fee received per license period for the SitePlan software.
The Licensee hereby expressly waives its right to assert further claims against the Licensor of any kind whatsoever, in particular under warranty or other provisions on faulty performance and/or damages (including consequential damages, loss of profit and savings, frustrated expenses and pure financial losses), insofar as and to the extent permitted by law.
To the extent permitted by law, the Licensee shall bear the burden of proof and a comprehensive duty to mitigate damages in all cases. In particular, the applicability of §§ 924, 928 ABGB and § 377 UGB is excluded by mutual agreement.
Claims of the Licensee against the Licensor shall expire six (6) months after the end of a license period.

Remuneration
1. License fee SitePlan software
  1. The license fee for the SitePlan software, calculated on the basis of the minimum purchase quantity of licenses agreed in advance for each license period, is due for payment annually in advance on each anniversary of the effective date for the following license period. For the first license period, the license fee is due for payment within two (2) weeks of signing this agreement.
  2. The amount of the license fee for the SitePlan software is based on the price model defined in the individual agreement.
  3. The Licensee may increase the number of licenses for the SitePlan software if required and in this case shall owe the Licensor the correspondingly increased license fee pro rata temporis in accordance with the price model in the individual agreement for the remaining duration of the current license period. The increase must be communicated to the Licensor in advance by electronic notification. The license fee for additional licenses shall be charged to the Licensee in full for the remainder of the current license period from the date on which the SitePlan software is made available for use by additional users of the Licensee or a group company. The additional license fee is due for payment within two (2) weeks after the SitePlan software has been made available.
2. Flat rate for SitePlan services
  1. The lump sum for the SitePlan services is due for payment annually in advance on each anniversary of the effective date for the following license period. For the first license period, the lump sum is due for payment within two (2) weeks of signing this contract.
  2. The amount of the flat rate for SitePlan services is based on the price model defined in the individual agreement.
3. Other services
  All other services not covered by this Agreement (see in particular in accordance with Section 1.3.3) shall be ordered separately by the Licensee as required and invoiced by the Licensor on the last day of each calendar month.
4. General information
  1. The Licensor may (in particular with each update) automatically carry out an anonymized quantitative check of the license inventory by evaluating the Licensee's users for the purpose of determining the fee and must verifiably log the license inventory.
  2. The licensor 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 indexing purposes) to the license fees, charges and flat rates specified in an individual agreement, effective for the following license period.
    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 the value protection. If it is no longer possible to use an index calculation at all, the value protection shall be calculated according to the same principles as were last used for the index calculation. A price adjustment by the licensor is also permissible if other external factors over which the licensor has no influence (in particular copyright levies and increases in or the introduction of new government fees) increase during the term of the contract; in this case, the adjustment shall be made in the same proportion as the increase in the respective external factor.
  3. All costs, fees, license fees and other prices stated in this contract or in an individual agreement are, unless explicitly stated otherwise, net amounts exclusive of statutory VAT. If necessary, the statutory VAT will be added to the net amounts when the invoice is issued.
  4. The Licensor is obliged to properly invoice the Licensee, whereby the Licensee agrees that invoices may be issued and transmitted electronically.
Maintenance and further development of the Siteplan software
1. Mandatory customization of the SitePlan software
  1. If mandatory legal regulations change that affect the functionality of the SitePlan software with regard to the purposes that the licensee typically pursues when using it, the licensor will make appropriate adjustments to the SitePlan software and provide a release for this purpose.
    The SitePlan software may also be subject to technical or other modifications by the licensor. The licensee agrees that minor adaptations of the SitePlan software, i.e. if the core functions of the SitePlan software are retained, can be made by the licensor at any time at its own discretion.
    The selection of the type and scope of the adaptation of the SitePlan software in accordance with this Section 7.1.1 by a release is at the sole discretion of the Licensor.
  2. As a result of a necessary adaptation of the SitePlan software or individual modules of the SitePlan software in accordance with Section 7.1.1, the Licensor grants the Licensee the same rights of use (see Section 1.2.1) and other rights in accordance with this Agreement in relation to the SitePlan software.
    If the Licensor adapts the SitePlan software on the basis of Section 7.1.1, the SitePlan documentation will, if necessary, be updated by the Licensor in accordance with the adaptations and made available to the Licensee.
2. Further development of the SitePlan software
  1. The Licensor decides at its own discretion to further develop the SitePlan software with regard to its functionalities (in particular the development of new modules or the improvement of existing modules). The Licensor intends to announce these further developments to the Licensee two (2) weeks in advance of a planned release and to offer them separately. The Licensee acquires rights of use or other rights to the SitePlan Software further developed by a release in accordance with this Section 7.2.1 exclusively on the basis of a separate agreement and not on the basis of this Agreement. The Licensor shall ensure that the Licensee can continue to use the SitePlan Software during the term of the Agreement on the basis of the version prior to an update in accordance with this Section 7.2.1.
  2. Furthermore, the Licensor shall decide at its own discretion whether to further develop, supplement or modify the SitePlan software at the Licensee's request (thus independently of Section 7.1.1 and Section 7.2.1). The development of new modules and functionalities at the Licensee's request shall be offered separately by the Licensor and agreed separately in a standard market research and development contract, in particular through provisions on industrial property rights, the granting of rights of use and exploitation, cooperation obligations and remuneration.
Content and rights to content
1. 1. In particular, the Licensee is solely responsible for the legality of the content used and uploaded by the Licensee, group companies and/or users in the context of using the SitePlan software. The Licensee shall indemnify the Licensor against all claims of any kind whatsoever against the Licensor due to a breach of this Section 8.1.1 by the Licensee, group companies or users.
  2. With regard to the content used (see Section 8.1.1), the Licensor has no duty of care, protection or warning in connection with the use of the SitePlan software. In particular, the Licensor is not obliged to check the content stored by the Licensee, Group Companies and/or Users on the external public cloud infrastructures for legal compliance when using the SitePlan Software.
  3. The Licensee grants the Licensor a non-exclusive right to use the content (including back-up copies and technical virtualizations) for the duration of the agreement, which is not limited to the purpose of fulfilling obligations under this agreement. The licensee guarantees that it has the corresponding rights to the content and shall indemnify and hold the licensor harmless in this regard, irrespective of fault.
Confidentiality
1. 1. "Confidential information" within the meaning of this confidentiality obligation means - in addition to the content of these General Terms and Conditions and individual agreements - all information that the licensor transmits, makes available or grants access to the licensee, regardless of whether this is done orally or in writing, regardless of whether this information is documented or not, regardless of the data carrier on which the information is located and regardless of whether the information is marked as "confidential" or not, in particular but not exclusively, sensitive, personal or company-specific data, project documentation, server specifications, source codes or Parts of source codes, object codes or parts of object codes, documents, ideas, processes, discoveries, developments, designs, programs, technical knowledge, standards, applications, systems, samples, software, game-specific information and the like, regardless of whether or not they are protected by patents, trademark rights, copyrights or other industrial property rights.
  2. The Licensee shall keep confidential information secret, store it under lock and key and only use it for the purposes of fulfilling this contract and individual agreements and using the SitePlan software in accordance with the provisions of this contract. In particular, it is expressly prohibited to use the confidential information in any other way, whether for payment or free of charge, to exploit it, to make it the subject of a patent or other industrial property right application, to copy, imitate, modify, reproduce or change products based on this confidential information and to compete directly or indirectly with the licensor. The reproduction and disclosure of the confidential information to third parties requires the prior written consent of the licensor.
  3. The Licensee shall only make confidential information accessible to employees, executive bodies, consultants, group companies and/or their employees to the extent that the Licensor has expressly declared its consent to this in writing. The Licensee shall ensure that in particular employees, group companies and/or their employees to whom confidential information is disclosed undertake to maintain confidentiality and refrain from disclosing confidential information to the same extent as the Licensee itself is obliged to maintain confidentiality and refrain from disclosing confidential information under this Agreement. The Licensee shall ensure that the duty of confidentiality continues beyond the end of the employment relationship and shall also inform these persons that they may be held personally liable under civil and criminal law in the event of a breach of the duty of confidentiality and omission. The Licensee shall be liable to the Licensor, regardless of fault, for any breach of this confidentiality and omission obligation by employees and group companies and/or their employees.
  4. The obligation to keep confidential information secret does not apply to information that is publicly known at the time it becomes known or becomes known without a breach of this non-disclosure agreement, nor does it apply to information disclosed to authorities or courts unless there is a legal right to refuse to testify. In the latter case, the Licensor shall be informed in good time before disclosure to authorities or courts and the information shall only be disclosed to the extent necessary and after the Licensee has exhausted all objections or legal remedies against such disclosure.
  5. The licensee shall use at least standard market security methods to secure all confidential information. In any case, this includes at least such security methods that the licensee would use to secure its own confidential information and that a diligent contractual partner would use to adequately secure the confidential information.
  6. All Confidential Information disclosed shall at all times remain the sole property of the Licensor and may only be used in accordance with the terms of this Agreement.
  7. This provision and the obligations of confidentiality and data protection shall continue to apply to the parties without restriction even after completion of the provision of services.
Privacy
1. 1. The parties undertake to comply with the provisions of the EU General Data Protection Regulation (GDPR) and the Austrian Data Protection Act (DSG) within the scope of this contractual relationship. The Licensor's data protection declaration in the version valid at the time of conclusion of the contract is attached to this contract as Annex 10.1.1.
  2. The parties shall conclude an order processing agreement within the meaning of Art. 28 GDPR in the form set out in Annex 10.1.2.
Non-solicitation clause
1. 1. During the term of this agreement and for a period of one year after termination of the agreement, the licensee undertakes neither to directly or indirectly entice away employees of the licensor nor to cause an employee of the licensor to terminate the respective contractual relationship. It is expressly clarified that employees who are terminated or with whom the employment relationship is terminated by mutual agreement are not included.
  2. A breach of the non-solicitation clause under this Section 11 shall result in a contractual penalty in the amount of the gross annual salary (based on the last twelve (12) months, from and including the month in which the employee was enticed away, including aliquot bonus payments) of the enticed-away employee, irrespective of the fault of the Licensee.
Third party claims
1. 1. If third parties assert claims, in particular from the infringement of industrial property rights, which prevent the licensee from using the SitePlan software in accordance with the contract, the licensee must inform the licensor immediately and comprehensively. If the licensee, a group company or a user is sued by a third party due to the use of the SitePlan software in accordance with the agreement, this defendant must coordinate all steps in this connection with the licensor and only undertake any legal action or declaration, in particular acknowledgements and settlements, with the prior consent of the licensor.
  2. The Licensor is entitled to modify the SitePlan software at any time on the basis of a claim by a third party in accordance with Section 12.1.1 in such a way that there is no longer a claim for infringement and the Licensee must ensure that an update is carried out by the users. If it is not possible to modify the SitePlan software, the Licensor shall be entitled to block access to the SitePlan software, whereby the limitations of liability pursuant to Section 5.2 shall apply, and to terminate the contract for cause.
Duration and termination of the contract
1. Contractual validity
  The Agreement shall enter into force on the day the individual agreement is signed (the "Effective Date") and shall be concluded for a period of one (1) year after the Effective Date. The Agreement shall be extended by a further license period in each case unless one of the parties gives written notice of termination of the Agreement with a notice period of at least three (3) months to the last day of the current license period.
2. Termination
  1. Both parties are entitled to terminate the contract with immediate effect by extraordinary termination in writing if there is good cause. Such good cause, which entitles either party to terminate the contract immediately, shall be deemed to exist in particular, but not exclusively, if the contractual performance by the Licensor was impossible for a continuous period of at least 100 (one hundred) days due to force majeure.
  2. Good cause entitling the Licensor to terminate the contract immediately shall be deemed to exist in particular, but not exclusively, in the following cases:
    1. repeated breach in accordance with point 3.1.5 (a repeated breach is deemed to have occurred if the same person breaches the same contractual provision at least twice within one month, calculated from and including the date of the first breach);
    2. Breach by the Licensee of one of points 9, 10 or 11 of this Agreement without, despite prior written request, the contractual condition being restored within a period of two (2) weeks;
    3. Abuse of the authorization granted to the licensee to use the SitePlan software for the purpose of committing unlawful acts or causing damage to third parties; the same applies if the licensee does not stop the abusive conduct of a group company or a user;
    4. incomplete payment of fees after the third reminder by the licensor.
  3. The Licensee shall automatically be entitled to the following upon termination of this Agreement:
    1. to return and/or destroy all disclosed confidential information and copies thereof immediately, but in any case within five (5) bank working days, after the end of the contract;
    2. take all reasonable steps to completely, permanently and irreversibly delete any documents or files containing or reproducing Confidential Information from any computer, word processor or other device under Licensee's control (including group companies and users); and
    3. to confirm that all confidential information has been returned or permanently and/or irrevocably deleted.
  4. In the event that this Agreement is terminated for cause - i.e. before the end of the current license period - the Licensor shall receive the pro rata license fee for the SitePlan Software and SitePlan Services. However, if the Licensee is at fault (or at fault attributable to the Licensee) for the extraordinary termination of this Agreement by the Licensor, the Licensor shall be entitled to the license fee for the SitePlan Software and SitePlan Services for the entire current license period.
References
1. The licensee grants the licensor the right to include the logo and the name of the licensee in connection with a project description in internal and public reference lists and to use them for advertising, marketing and sales purposes.
2. The right to use the licensee's logo and name in connection with a project description for advertising, marketing and sales purposes may include use as a reference in discussions, as a publication in online and print media and other media (e.g. television, trade, business and consumer press, AV media, the provider's own media), as a presentation and introduction at events, as an application demonstration and for advertising purposes.
3. If a project description is to be prepared, the Licensor shall prepare it at its own expense and submit the final version to the Licensee prior to publication. If the Licensor does not receive a written objection within two (2) weeks of submission, the project description shall be deemed to have been approved by the Licensee. The Licensor shall be entitled to all rights to the project description. The licensee may use the final version approved by him and publish it in print media, other media and on the Internet.
Applicable law
The contract 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 the contract (including but not limited to 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 court having jurisdiction for commercial matters in Vienna (Austria), Innere Stadt.
Final provisions
1. Offsetting and retention
  The assertion of rights of retention or offsetting (with the exception of point 5.2.6) against claims of the licensor is excluded.
2. 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 reduction by more than half of the true value (laesio enormis), error or any other legal ground.
3. Messages
  1. All notifications in accordance with the contract and the General Terms and Conditions (with the exception of point 2.2.1) must be sent to the Licensor in writing by registered letter or by e-mail with the same content. However, only the written notification sent by registered letter or courier service shall be decisive for the triggering of deadlines and the effectiveness of declarations. The declarations must be sent to the address given below for the attention of the contact person named.
    SitePlan GmbH
    Bauernstraße 1, 4600 Wels
    Contact persons: Martin Beiganz, Florian Fischer
    E-mail: office@siteplan.atThe licensee shall provide the licensor with the relevant contact data for the transmission of notifications immediately after the conclusion of the contract. If such transmission of contact data does not take place, the licensor is entitled to use the contact data and contact persons used in the context of the conclusion of the contract for the purpose of notifications.
  2. The date of posting shall be decisive for the timeliness of all non-electronic declarations and notifications in connection with this contract. The date of receipt pursuant to Section 12 of the E-Commerce Act shall be decisive for the timeliness of an electronic communication. The Licensor's obligation pursuant to Section 10 para. of the E-Commerce Act is excluded for electronic notifications by the Licensee.
  3. The Licensee shall immediately, but in any case within two (2) banking days of the conclusion of this Agreement, electronically notify two contact persons who may make binding statements, declarations and notifications for the Licensee under this Agreement.
  4. The parties undertake to notify the other party immediately of any change or extension of the contact persons by electronic communication.
4. Completeness
  1. All annexes attached to the contract and all appendices/appendices attached to the annexes to the contract form an integral part of the contract.
  2. The contract including annexes (in particular the current individual agreement) contains the complete agreement of the parties on the subject matter of the contract and replaces (any) previous or different agreements made between the parties. There are no other ancillary agreements.
  3. Priority rule: Provisions and content in the individual agreement that deviate from or contradict the General Terms and Conditions shall take precedence over the General Terms and Conditions.
  4. Terms and conditions of business or the like of the licensee that deviate from the contract and have a similar purpose are invalid, even if they claim (exclusive) validity.
5. Contract amendments
  1. Amendments or additions to the 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 17.5.
  2. The Licensor is entitled to unilaterally change the URL for access to the SitePlan documentation, availability measurement of the SitePlan software and the Service Desk at any time. The change is effective upon electronic notification of this to the Licensee.
6. 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.
7. 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):

Banking day

means a day (other than a Saturday or Sunday) on which banks in Austria are open for general business.

Individual agreement

means the individual agreement (signed offer) concluded between the parties (in particular to specify the scope of services for the SitePlan software and SitePlan services as well as the remuneration).

Error

means an error in the SitePlan software according to the classification in an error class.

Error classes

means errors that are categorized in the SitePlan software according to point 4 in classes 1-4 depending on the severity of the error. The measures required to rectify the error and the time frame for rectifying the error are derived from this classification by the licensor.

Force Majeure

means the occurrence of an event or circumstance that prevents the licensor from fulfilling one or more of its contractual obligations under the agreement if and to the extent that the licensor proves that: (i) this impediment is beyond its reasonable control, (ii) the occurrence was not reasonably foreseeable at the time of the conclusion of the contract, and (iii) the effects of the impediment could not reasonably have been avoided or overcome by the licensor. If one of the following events occurs, the existence of the conditions under (i) to (iii) is irrefutably presumed:

War (declared or undeclared), hostilities, attack, actions of foreign enemies, extensive military mobilization;
Civil war, riot, rebellion and revolution, military or other seizure of power, insurrection, acts of terrorism, sabotage or piracy;
Currency and trade restrictions, embargo, sanctions;
Lawful or unlawful official acts, compliance with laws or government orders, expropriation, confiscation of works, requisition, nationalization;
Plague, epidemic, pandemic, natural disaster (flood, avalanche, snow pressure, landslide, landslide, hurricane, earthquake or similar disaster of comparable magnitude) or extreme natural event;
Explosion, fire, destruction of infrastructure, prolonged failure of means of transportation, telecommunications, information systems or energy;
general labor unrest such as boycotts, strikes and lockouts, slowdowns, occupation of factories and buildings.

Group companies

has the meaning assigned to it in section 1.2.3.

Core times

has the meaning assigned to it in section 2.2.2.

Licensor

has the meaning ascribed to it in point (A) of the preamble.

Licensee

has the meaning ascribed to it in point (B) of the preamble.

Users

means any end user of the SitePlan software who can be identified via their own user account.

User policy

means the provisions applicable to users for the use of the SitePlan software as amended from time to time, available at https://www.siteplan.at/de/guidelines/

Party, Parties

has the meaning ascribed to it in point (B) of the preamble.

Releases/release types

The term "release types" refers to different types of versions of the SitePlan software (releases), which differ in terms of their scope and planning capability. The following release types are used in this contract:

Major release: includes significant functional and/or technical changes as well as bug fixes to the SitePlan software. A major release is delivered in accordance with a release plan.
Minor release: includes functional and/or technical changes and bug fixes to the SitePlan software. A minor release is delivered in accordance with a release plan.
Patch: usually only includes bug fixes. A patch is delivered according to a release schedule.
Hotfix (emergency release): includes unplanned, urgent bug fixes that are delivered without planning.

Service Desk

means the Licensor's support portal current at the time of conclusion of the contract at https://support.siteplan.at/

Service Level Credits

has the meaning assigned in section 5.2.5

SitePlan services

means the services to be provided by the Licensor in accordance with Section 2.2.

SitePlan Trial

means the mobile application of the SitePlan software that can be downloaded by a user to their mobile device (smartphone or tablet) on Internet-based third-party distribution platforms.

SitePlan documentation

means the current version of the system and user documentation for the SitePlan software at the time of conclusion of the contract, available at https://help.siteplan.at/

SitePlan software

means the standard software components to be made available for use by the licensor on the basis of the currently valid individual agreement, which can be used by each user via a mobile application and/or a web application, depending on the authorizations assigned to the user.

Software solution

has the meaning ascribed to it in point (A) of the preamble.

Deadline

has the meaning assigned to it in point 13.1.

Update

refers to the process of updating the SitePlan software by importing a release.

Contract

has the meaning ascribed to it in point (D) of the preamble.

Confidential information

has the meaning assigned to it in section 9.1.1.

Availability rate

has the meaning assigned to it in section 2.1.1.