GTC

 

VIALYTICS AMERICAS, INC. AND THE CUSTOMER AGREE THAT THESE GENERAL TERMS AND CONDITIONS (HEREINAFTER “GTC”) SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AS TO ANY VIALYTICS PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED TO THE CUSTOMER AS SET FORTH IN AN ORDER FORM INCORPORATING THESE GTC. AS TO ANY PARTICULAR ORDER FORM, THE ORDER FORM AND THESE GTC TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES (HEREINAFTER “AGREEMENT”). IN THE EVENT OF ANY CONFLICT BETWEEN THE ORDER FORM AND THE GTC, THE TERMS IN THE ORDER FORM SHALL PREVAIL.

 

1. Scope
   1. vialytics Americas, Inc. (hereinafter "vialytics”) offers a web-based software, which is an innovative road management system that uses artificial intelligence to create a digital twin of the road space and supports the sustainable management of municipal roads and paths (hereinafter "vialytics web system" or “Software”) including the vialytics smartphone app and rental of necessary hardware. The Parties agree that the products and services of vialytics specified in the Agreement shall have the scope of functions and services as defined in Annex 1 to the GTC.
   2. No changes or amendments to the Agreement shall take effect unless consented to in writing by vialytics. Deviating, conflicting or supplementary terms and conditions of the Customer shall only become part of the Agreement if and to the extent that vialytics has expressly consented to their application, in writing. This express written consent requirement shall apply in any case, for example even if the Customer refers to its terms and conditions within the scope of its order and vialytics does not expressly object thereto.
      
      
      
2. Conclusion of the Agreement

For the conclusion of the Agreement about the usage of the vialytics web system, vialytics creates a corresponding order form in written or text form upon request, which is accepted by the Customer through confirmation in written or text form, but at the latest through payment of the invoice.

 

3. Access to vialytics web system

3.1     vialytics shall provide the Customer with access to the vialytics web system as software-as-a-service via the internet in accordance with the terms of the Agreement.

3.1     If agreed in the Agreement, vialytics shall also provide hardware and other services to the agreed extent.

3.1     Further contractual services may result from the Agreement.

 

4. Processing of image data

4.1     The image and motion data collected by means of the vialytics smartphone app on the provided hardware (hereinafter also "end device(s)") are processed by vialytics as follows:

4.1.1     Display of the acquired image data over time as well as display of past condition evaluations:

- Vialytics undertakes to check the raw data provided by the Customer with regard to its quality, to process it and to display it in the vialytics web system. The Customer is responsible for the quality of the recordings and will be pointed out in the vialytics smartphone app to appropriate assistance in order to carry out the recordings optimally. Only if the recordings are of high quality and the instructions in the vialytics smartphone app are followed up, vialytics is able to process the raw data.

- Once the Customer has conducted a road condition assessment drive and successfully transferred the image data into the vialytics web system, the images are processed to the extent that

(i) personal data is rendered unrecognizable by machine (anonymization);

(ii) the drive is archived as an image track;

(iii) it is retrievable by the Customer no later than thirty (30) days after successful upload.

- As soon as the Customer has carried out an road condition assessment drive and successfully transferred the data to the vialytics web system, road damage is detected for the recorded images and the road condition is determined.

- The scope of the images of the road space to be processed corresponds to the total route network within the Customer's district agreed in the Agreement. If the route network to be visualized exceeds the length agreed in the Agreement, a deviation of up to a maximum of 5% will be processed free of charge. Additional miles to be visualized will be charged to the Customer.

4.1.2     Ability to create and manage georeferenced markers as a task management tool within the vialytics smartphone app and vialytics web system:

All data recorded and transmitted via the geo-referenced markers function is made available in the vialytics web system within the Customer's district and visualized in the vialytics web system no later than 60 minutes after the Customer has successfully transmitted the raw data via an upload. Recorded geo-markers are archived and stored with time, location and, if necessary, additionally entered information.

4.1.3     Possibility of recording a GPS track to log road safety control and winter maintenance.

4.2     Data security: Vialytics routinely conducts security audits with its Customers, as well as internal business continuity checks. The Software is accessible through the internet, and uses a cloud based hosted infrastructure to support the protection and availability of all data of the Customer.

4.3     Accessibility: Customers can access the vialytics web system through a web URL using their company email address and password. vialytics can provide the Customer with the tools necessary to protect its own data. vialytics logs every single sign in for Customer´s account, noting the device and location or connection. Vialytics uses JWT authentication tokens to validate and confirm users. The tokens expire and are re-issued again when the user logs back in. The Customer can also opt in for multi-factor identification for added security of their users.

4.4     Storage & Hosting: Vialytics leverages Amazon AWS for all application hosting, data, and document storage. Servers are secured via Virtual Private Cloud (VPC), security groups, and rotating SSH key based on best practices and are located in the USA.

4.5     Security: Amazon’s highly secure data centres utilize state-of-the-art electronic surveillance and multi-access control systems. More information on data security at AWS can be found at htpp://amazon.com/compliance.

4.6     The vialytics web system will be available at least 99.0% of the time, measured on a yearly basis, excluding scheduled maintenance.

 

5. Maintenance, malfunction reporting and response time to malfunctions

5.1     vialytics shall be entitled to interrupt the availability of the vialytics web system for maintenance purposes and as a result of other technical requirements. As far as possible and plannable, the maintenance work shall be carried out outside the usual business hours from Monday to Friday (taking into account public holidays in the USA) between 9:00 a.m. and 6:00 p.m. EDT. If a maintenance task will result in an interruption of the use of the Software of more than thirty (30) minutes within the usual business hours from Monday to Friday (taking into account holidays in the USA) between 9:00 a.m. and 6:00 p.m. EDT, vialytics shall announce this maintenance work by e-mail. The announcement shall be made at least 24 hours prior to the start of the maintenance work.

5.2     Disruptions to the availability of the Software must be reported to vialytics by the Customer immediately after they become known. In the case of malfunctions of the vialytics smartphone app, the malfunction report must contain the following information in particular: Version of the affected application and description of the steps to reproduce the malfunction. In case of malfunctions of the vialytics web system, the malfunction report of the Customer must contain the following information in particular: browser used, indicating the version of the browser and description of the steps to reproduce the malfunction. The malfunction report can be sent to vialytics by e-mail at support_us@vialytics.com.

5.3     vialytics shall endeavor, in the case of reports of malfunctions of the system availability that lead to a total failure of the vialytics Web System and that are received within the business hours of vialytics (Monday to Friday between 9:00 a.m. and 6:00 p.m. EDT, taking into account public holidays in the USA), to begin remedying the malfunction within 24 hours of receipt of a complete malfunction report on one of the communication channels specified in Section 5.2. In case of malfunctions that do not lead to a total failure of the vialytics web system and occur during ongoing operation, vialytics shall endeavor to respond no later than one business day after receipt of the complete malfunction report on one of the communication channels specified in clause 5.2. For malfunction reports received outside of business hours of vialytics, the foregoing response times shall commence on the following business day. Delays in the response or in the elimination of malfunctions for which the Customer is responsible (e.g. due to the unavailability of a contact person on the Customer's side, incomplete malfunction report or delayed reporting of the malfunction) shall not be borne by vialytics. Vialytics is entitled to show the Customer temporary workaround options and to eliminate the underlying cause of the malfunction by making adjustments to the vialytics Web System at a later point in time, provided this is reasonable for the Customer.

 

6. Required Customer Cooperation

6.1     The Customer is obliged to provide a qualified contact person together with a deputy who is authorized to make or immediately bring about all necessary decisions that are required for the provision of the contractually agreed service. The Customer shall be obliged to notify any changes in the contact person (including deputy) without delay.

6.2     The Customer is obliged to ensure the technical requirements for the provision of the services by vialytics itself.

6.2.1     The Customer guarantees the data transfer (upload of road condition recordings) between the end devices and the Internet (not via mobile data, but in particular via a WLAN connection). The Customer provides at his own expense the necessary bandwidth and data volume to independently transfer the data recorded with the end devices. Should no network be available, the Customer undertakes to set up such a network or to access a network accessible to him.

6.2.2     For optimal use of the vialytics smartphone app, the Customer will only use the end devices provided by vialytics. Use of the vialytics smartphone app on end devices not provided by vialytics is possible in consultation with vialytics and for an additional charge.

6.2.3     For optimal use and correct function of the vialytics smartphone app, the Customer must ensure that the last update of the operating system on the end device is no longer than 6 months ago.

6.2.4     The end devices provided by vialytics, in particular the data volume provided, may not be used for private purposes. In particular, the installation of further applications on the end device and the use of memory may impair the system performance. Accordingly, no private images or videos should be stored on the end devices provided. If private use leads to the data volume provided being exceeded, vialytics reserves the right to charge a flat-rate processing fee of a reasonable amount, but at least USD 25.00.

6.2.5     For optimal use of the vialytics web system, the Customer will use the browser types Google Chrome or Mozilla Firefox in their respective current version. In addition, the use of cookies must be permitted in the settings of the browser used. If these technical requirements are not met by the Customer, the usability of the vialytics web system may be restricted under certain circumstances. Vialytics is not responsible for these restrictions.

6.2.6     The Customer shall be responsible for taking state-of-the-art IT security measures within its own organization and for its employees. These include, but are not limited to, the installation and regular updating of common antivirus software on the laptops, computers or other end devices of the Customer's users.

6.2.7     In addition, the Customer must ensure the security of the internet connection used, which means in particular also the use of company-owned instead of public Virtual Networks (VPN) as well as ensuring the use of VPN connections in public networks. Furthermore, the Customer is obliged to protect his access data to the vialytics web system by technical and organizational measures; the Customer has to instruct his employees not to pass on the access data to third parties.

6.2.8     The Customer may have to adjust his firewall if this blocks parts of the vialytics web system. A list of corresponding IP addresses will be provided by vialytics, if required.

6.3     The Customer is responsible for the technical setup and administration of the user account for the vialytics web system. This applies regardless of whether vialytics supports the Customer in setting up the user account, in whatever form.

6.4     The Customer shall support vialytics to a reasonable extent in identifying and eliminating malfunctions when they occur. In particular, the Customer shall comply with the requirements for malfunction reports in Section 5.2.

6.5     The Customer will not upload any content via the Software, load or store any content on the end devices provided by vialytics or otherwise make it available, make it accessible or allow it to be made available, whose storage, provision and/or use in any way violates applicable laws or conflicts with the rights of third parties. Accordingly, the following content in particular is prohibited:

- Content that attempts to disrupt or damage the Software.

- Content that infringes the rights of third parties – e.g. copyrights, ancillary copyrights and industrial property rights such as trademarks, patents, utility models and designs as well as other rights, for example rights to a name and personal rights.

- Criminal content and actions, advertising for anti-constitutional organizations or symbols of such organizations, content glorifying violence, racist content, pornographic content, content harmful to minors, sexist content, the trade in drugs, calls for drug use or its trivialization, calls for criminal acts, gambling, insults, slander, defamation, etc..

6.6     It is the Customer’s responsibility to perform the road condition assessment drives. A good quality of the raw data is in the common interest, therefore the Customer acts in his own interest when recording the data and uses the end devices. When collecting data, the Customer pays particular attention to the following conditions:

- Weather conditions: Road condition assessment drives are conducted under generally good weather conditions. The best results are obtained under light cloud cover without shadows cast by direct sunlight. Wet, foggy or rainy conditions will produce unusable results.

- Cleanliness: The roads are not covered by leaves, snow, frost, mud, wetness or other dirt. The windshield and smartphone camera lens must be clean. The anti-reflective cloth supplied by vialytics must be spread out on the dashboard to avoid reflections.

- Light conditions: The road condition assessment drives are to be carried out during daylight, marginal times such as one hour after sunrise and one hour before sunset are to be avoided due to solar radiation.

- Suitable vehicle: Vehicles with a windshield as steep as possible and a short hood should be used.

 

7. Access & Use Restrictions; Intellectual Property

7.1     Vialytics grants to the Customer a non-exclusive, revocable, non-transferable right, limited in time to the term of the Agreement (subject to the termination rights herein), to use the Software as per the terms herein. Notwithstanding anything to the contrary herein, there is no transfer whatsoever hereunder of ownership rights in and any of vialytics’s hardware, Software or parts thereof. The Customer is merely granted a use license subject to the terms hereof and during the term of the Agreement. The rights of use granted are not transferable, sublicensable or otherwise released for transfer to third parties.

7.2     The Customer undertakes to use the Software exclusively in accordance with the Agreement and to observe any instructions for use given by vialytics.

7.3     The Customer grants vialytics a spatially, temporally and content-wise unlimited, exclusive and cost-free right of use to all image and motion data transferred to the vialytics web system. The right of use is in particular irrevocable and non-terminable as well as transferable and sublicensable and includes the right to any commercial and non-commercial use of the image and motion data including all currently unknown but future known forms of use.

7.4     The Customer acknowledges that the data processed hereunder and the Software are exclusive property of vialytics and its affiliates constituting trade secrets. The Customer has been granted a limited right to access the Software for the purpose set forth in the Agreement and will have no other rights with respect thereto. Additionally, the Customer acknowledges that the Agreement does not constitute a sale or transfer of data, the Software, or any other property and all rights in inventions, patents, copyrights, database rights, design rights, trademarks, trade names, trade secrets, know-how and any other intellectual property rights (whether registered or unregistered) relating to the data, or the Software and will remain vested in vialytics or its licensors. Without limiting the foregoing, vialytics owns and retains all right, title and interest in the data and the Software, all related applications, application programming interfaces, user interface design software, source code and any and all future enhancements and modifications thereto made available to the Customer by vialytics in its sole discretion.

7.5     Customer covenants and agrees that it will not (a) disassemble, decompile or otherwise reverse engineer the Software or any program, code, or technology installed or delivered or any portion thereof, and (b) reproduce, scrape, retransmit, recreate, copy, sell, distribute, publish, broadcast, circulate or commercially exploit the Software, in whole or in part, in any manner inconsistent with the Agreement, or cause or permit any third party to do any of the foregoing.

7.6     Customer acknowledges and agrees that vialytics is the sole owner of the Software and all information generated and compiled within the Software.

 

8. Pricing & Payment Terms

8.1     Unless otherwise agreed in the individual case, the prices agreed on in the Agreement are net plus the respective statutory value added tax.

8.2     The prices are calculated depending on the type of road (road, service road, cycle path), the number of miles and any additional services booked and is generally specified in the Agreement.

8.3     Vialytics shall invoice the Customer after conclusion of the Agreement. The remuneration shall be due for payment annually in advance with a payment term of 30 days after receipt of the corresponding invoice. Upon expiry of the aforementioned payment deadline, the Customer shall be in default. In this case, vialytics shall be entitled to demand statutory default interest. The right to claim higher damages remains unaffected. Payment of the remuneration shall be made free of costs and expenses to the account specified in the invoice.

8.4     Any additional services booked after the conclusion of the Agreement will be provided for the remaining term of the Agreement and will be charged pro rata in relation to the prices for the remaining term of the Agreement (before automatic renewal).

 

9. Term and Termination

9.1     The Agreement is concluded from the agreed date initially for the duration of the term agreed in the Agreement. During this initial term, ordinary termination is excluded for both Parties.

9.2     If an automatic renewal has been agreed in the Agreement between the Parties, the Agreement is renewed for a further year after the initial term and thereafter annually for a further year if it has not been terminated beforehand by one Party with a notice period of three months to the end of the respective term.

9.3     In the event of an automatic renewal of the Agreement, the contractual relationship shall be continued with the hardware provided by vialytics; new hardware shall not be owed.

9.4     The right of both Parties to terminate for cause shall remain unaffected.

9.5     vialytics is entitled to terminate the Agreement with immediate effect and/or to interrupt access to the vialytics web system, without prior formal notice, in the event of a serious breach by the Customer, in particular if the Customer fails to comply with material contractual obligations. Such a serious breach shall be deemed to exist in particular in the case of:

- Delay in payment of amounts owed by the Customer under the Agreement of more than thirty (30) days;

- Failure by the Customer to provide essential information to enable required to use the Software;

- gross negligence on the part of the Customer or a use of the Software that does not correspond to the main purpose of the vialytics web system;

- Failure to comply with the law on personal data

9.6     Any notice of termination must be in writing to be effective. Upon effectiveness of the termination, the user account(s) of the Customer will be blocked.

9.7     An obligation of vialytics to grant the Customer access to the vialytics web system beyond the end of the term of the Agreement is excluded. The Customer undertakes to return the provided hardware components to vialytics with a period of thirty (30) days after the end of the term.

 

10. Limitation of liability, Indemnity & Disclaimers

In no event shall VIALYTICS be liable for any indirect, incidental, consequential, special or PUNITIVE damages, including loss of profit or loss of business, arising from this agreement, even if the CUSTOMER has been advised of the possibility of such damages.

CUSTOMER´S access to the Data may be routed through third parties and third party systems (each, a “third party system”). VIALYTICS is not responsible for any losses, damages or costs that may result from errors made by any third party system in reading, processing and distributing data, or if any third party system otherwise fails to properly transmit such data.

CUSTOMER is solely responsible for any losses, damages, or costs resulting from CUSTOMER’S reliance on and use of any data or content provided AS PART OF THE SERVICES.

The entire aggregate liability of VIALYTICS under or in connection with this agreement shall be the aggregate fees paid by the CUSTOMER to VIALYTICS during the SIX (6) months preceding the earliest event giving rise to such liability.

Subject to the “Procedure” requirements below, if a third party claims against Vialytics that (i) Customer’s intellectual property (including, without limitation, any of its data) or content provided to Vialytics as part of the Services infringes such third party’s patent, copyright or trademark or other third party intellectual property right, or (ii) arises out of or results from Customer’s breach of its obligations set forth hereunder, then in each case Customer will defend and pay all costs of defense of such claim (including reasonable attorneys’ fees), and will indemnify and hold Vialytics harmless from and against any settlement amounts agreed to by Customer or damages finally awarded by a court of competent jurisdiction to such third party.

Procedure: With respect to the indemnification obligations above, the indemnified party should (a) give the indemnifying party prompt written notice of any claim, action, suit or proceeding; (b) granting sole control of the defense and settlement to the indemnifying party; and (c) reasonably cooperating with indemnifying party at the indemnifying party’s expense. The indemnified party may participate in the defense of the claim at its own expense and in a manner not disruptive to indemnifying party’s conduct of the defense. Non-compliance with this procedure does not constitute a waiver of the indemnification obligations set forth hereunder.

VIALYTICS makes no warranties, express, implied, or statutory, regarding or relating to the subject matter herein. without limiting the foregoing, VIALYTICS specifically disclaims, to the fullest extent permitted by law, all implied warranties of merchantability and fitness for a particular purpose with respect to the subject matter hereof, including, without limitation, THE data, AND THE SERVICES which FOR THE AVOIDANC OF DOUBT, ARE PROVIDED
ON A “AS IS” BASIS.

 

11. Confidentiality

11.1      Vialytics and the Customer understand and agree that in connection with the negotiation and performance of the Agreement, each Party may have had or have access to or may have been or be exposed to, directly or indirectly, private or confidential information of the other Party, including, but not limited to, trade secrets, computer programs and code, scripts, algorithms, features and modes of operation, inventions (whether or not patentable), techniques, processes, methodologies, schematics, testing procedures, software design and architecture, design and function specifications, analysis and performance information, documentation, details of its products and services, as well as names and expertise of, and information relating to, vendors, employees, consultants, customers and prospects, know-how, ideas, and technical, business, pricing information, financial and marketing information and strategies and any other information that the receiving Party reasonably should know is confidential (hereinafter “Confidential Information”).

11.2      Each Party hereto (on its behalf and on behalf of its subsidies, employees or representatives, or agents of any kind) agrees to hold and treat all Confidential Information of the other Party hereto in confidence and will protect the Confidential Information with the same degree of care as each Party uses to protect its own Confidential Information of like nature. The Confidential Information will not, without the prior written consent of the other Party hereto, be disclosed to any third party except that the receiving Party may disclose the Confidential Information or portions thereof to (a) its directors, officers, employees, agents and representatives on a need-to-know basis or (b) as may be required by law, applicable regulation or judicial process, provided, however, that if the receiving Party is required to disclose such Confidential Information under this clause 11, the receiving Party shall promptly notify the disclosing Party of such pending disclosure and consult with the disclosing Party prior to such disclosure as to the availability and advisability of seeking a protective order or other means of preserving the confidentiality of the Confidential Information.

11.3      Notwithstanding anything contained herein to the contrary, Confidential Information does not include any information that (i) at the time of the disclosure or thereafter is lawfully obtained from publicly available sources generally known by the public (other than as a result of a disclosure by the receiving party or its representative); (ii) is available to the receiving Party on a non-confidential basis from a source that is not and was not bound by a confidentiality agreement with respect to the Confidential Information; or (iii) has been independently acquired or developed by the receiving Party without violating its obligations under this Agreement or under any applicable law.

11.4      This Section shall supersede any previous agreement relating to confidential treatment and/or non-disclosure of Confidential Information; provided, however, that any information disclosed pursuant to that earlier agreement shall be deemed to be Confidential Information and protected under the terms of this Agreement as if this Agreement had been in place at the time of such disclosure.

 

12. Changes

12.1      Vialytics reserves the right to amend and/or modify these GTC from time to time for the purpose of introducing new regulations for the use of any newly introduced additional services or functions and/or in the event of a change in market conditions (e.g.) and/or the legal situation and/or case law, even for existing contractual obligations, provided that this is reasonable for the Customer. The respective amendments shall be communicated to the Customer at the latest with a notice period of four (4) weeks prior to the planned entry into force by e-mail to the e-mail address provided by the Customer or by other means, provided that the Customer has agreed thereto. The amendments and/or changes shall be deemed approved if the Customer has not objected to them in writing or e-mail within a period of four (4) weeks after receipt of the amendments and/or changes, provided that vialytics has expressly pointed out this fiction of approval in the notice of change.

12.2      Clause 12.1 shall apply mutatis mutandis to the adjustment of prices or price lists, in particular to compensate for personnel and other cost increases, in an appropriate amount. Vialytics shall notify the Customer of the amount of the price adjustment and the date on which the price adjustment becomes effective. Any price adjustments shall not apply to periods for which the Customer has already made its payments in accordance with the contract.

12.3      Vialytics reserves the right to change the vialytics web system or to offer deviating functionalities, provided and to the extent that such changes or deviations are reasonable for the Customer. If the provision of a modified version of the Software or a modification of functionalities of the Software is accompanied by a significant change in the workflows of the Customer supported by the Software and/or restrictions in the usability of previously generated data, Clause 12.1 shall apply accordingly.

12.4      If the Customer objects to an amendment and/or modification within the meaning of this Section 12. in due form and time, the contractual relationship shall be continued under the previous conditions. In this case, vialytics reserves the right to terminate the contractual relationship extraordinarily with a notice period of four (4) weeks to the end of the month.

 

13. Miscellaneous.

13.1      Vialytics may subcontract some or all of its obligations hereunder at its discretion.

13.2      No failure of either Party to exercise or enforce any rights under the Agreement shall act as a waiver of such rights. The Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

13.3      The Agreement may not be assigned by the Customer without vialytics’s prior written consent, such consent not to be unreasonably withheld. Vialytics may assign the Agreement to successor to its business.

13.4      If any provision of the Agreement or GTC is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and the unenforceable provision shall be interpreted so as to render it enforceable while approximating the Parties’ intent as closely as possible.

13.5      Nothing in the Agreement is intended to create any rights in, or confer any benefits upon, any person or entity other than the Parties to the Agreement.

13.6      The Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of New York, USA and exclusive venue shall be in the courts of the State of New York. Each party expressly waives its right to a trial by jury. The Agreement should not be construed in favor of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation or drafting of the Agreement.

13.7      The Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. The counterparts of the Agreement and all ancillary documents may be executed and delivered by emailed electronic signature and the receiving Party may rely on the receipt of such document by such means as if the original had been received.

13.8      The headings in the GTC are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.