GTC

General Terms and Conditions (GTC)
of the vialytics GmbH

(Version: 01 October 2022)

Scope
1. vialytics GmbH (hereinafter also "Contractor" or "vialytics") offers on its website vialytics.de (hereinafter: "Website") a web-based software, which has as its object a road management system (hereinafter also "vialytics Web-System") including the rental of necessary hardware, in particular for the documentation of road controls.
2. These General Terms and Conditions (hereinafter also referred to as "GTC") apply to - separately concluded - contracts, the subject of which is the use of the vialytics web system (hereinafter in each case "User Agreement" and jointly "User Agreements"), which are concluded between the Contractor and an entrepreneur (hereinafter also "Customer"; vialytics and Customer individually also in each case "Contracting Party" and jointly "Contracting Parties") - irrespective of whether they are concluded via the website or outside the website.
3. Deviating, conflicting or supplementary General Terms and Conditions of the Customer shall only become part of the contract if and to the extent that the Contractor has expressly consented to their application. This consent requirement shall apply in any case, for example even if the Customer refers to its General Terms and Conditions within the scope of its order and the Contractor does not expressly object thereto.
Conclusion of contract between the client and vialytics
1. The offer provided on the website to use the vialytics web system designated and described therein does not constitute a binding offer by vialytics.
2. For the conclusion of a usage contract about the chargeable usage of the vialytics web system, the Sales or Customer Success Team of vialytics creates a corresponding offer in written or text form upon request, which is accepted by the client through confirmation in written or text form, but at the latest through payment of the invoice.
3. The contract of use (as well as any amendment) between the Client and the Contractor shall be concluded by order confirmation or payment in accordance with Section 2.2, unless the offer has been revoked by the Contractor beforehand.
Subject of the contract
1. The Contractor shall provide the Customer with access to the software offered on the website as software-as-a-service (hereinafter also "SaaS") via the Internet in accordance with the terms of the usage agreement and these GTC. The functional scope of the booked software version, including any additional services (add-ons) and the hardware, results from the usage agreement.
2. If agreed in the usage contract, the Contractor shall also provide hardware and other services to the agreed extent.
3. Further contractual services may result from the user agreement and supplement these GTC.
Processing of image data by the contractor
1. The image and motion data collected by means of the terminal device(s) (mobile radio device) (hereinafter also referred to as "terminal device(s)"), via which conclusions are drawn about the condition of the roads or paths, are processed by the Contractor as follows:
  1. Display of the acquired image data over time as well as display of past condition evaluations:
    1. The contractor undertakes to check the raw data provided by the client with regard to its quality, to process it and to display it in the vialytics web system. The client is responsible for the quality of the recordings and will be pointed out in the vialytics smartphone app (in the current version) to appropriate assistance in order to carry out the survey optimally. Only if the recordings are of high quality and the instructions in the vialytics smartphone app are followed up, the contractor is able to process the raw data within thirty (30) days.
    2. Once the client has conducted a road condition assessment drive and successfully transferred the image data into the vialytics web system, the images and image traces are processed to the extent that
      1. personal data is rendered unrecognizable by machine (censorship);
      2. the drive is archived as an image track;
      3. it is retrievable by the Client no later than thirty (30) days after successful upload.
    3. As soon as the client has carried out an inspection and successfully transferred the data to the vialytics web system, road damage is detected for the recorded images and image tracks and the road condition is determined. The condition assessment is based on the ZTV-ZEB-Stb, the additional technical contract conditions and guidelines for the condition assessment of roads, as well as the E EMI 2012, the current recommendations for the maintenance management of roads, which have been further developed and adapted by the contractor.
    4. The scope of the image tracks of the road space to be processed corresponds to the total route network within the client’s district agreed in the usage contract. If the route network to be visualized exceeds the length agreed in the usage contract, a deviation of up to a maximum of 5% will be processed free of charge. Additional kilometers to be visualized will be charged to the client.
    5. The Contractor undertakes to process the data recorded by the Client in each case for the total route network agreed in accordance with the contract each time evaluable data are available.
  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 are made available in the vialytics web system within the client's district and visualized in the vialytics web system no later than 60 minutes after the client 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.
  3. Possibility of recording a GPS track to log road safety control and winter maintenance.
2. The Customer shall take the necessary and reasonable actions to enable the Contractor to fulfill its contractual obligations. The Client shall notify the Contractor immediately of any defects in the performance of the services.
Maintenance, fault reporting and response time to faults
1. The Contractor shall be entitled to interrupt the availability of the Software 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 at the Stuttgart location) between 9:00 and 18:00. 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 at the Stuttgart location) between 9:00 a.m. and 6:00 p.m., Contractor 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.
2. Disruptions to system availability must be reported to the Contractor by the Client 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 disruption. 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 and description of the steps to reproduce the malfunction. The malfunction report can be sent to the Contractor by telephone (+49 711-25295190) or by e-mail at kundenbetreuung@vialytics.de.
3. The Contractor 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 (Monday to Friday between 9:00 a.m. and 6:00 p.m., taking into account public holidays at the Stuttgart location), 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, Contractor 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 Fault Reports received outside of Business Hours, the foregoing response times shall commence on the following Business Day. Delays in the response or in the elimination of the fault for which the Customer is responsible (e.g. due to the unavailability of a contact person on the Customer's side, incomplete fault report or delayed reporting of the fault) shall not be borne by the Contractor. The Contractor is entitled to show the Client temporary error 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 Client.
Cooperation services of the customer
1. The following cooperation services are main performance obligations of the client and are not to be classified solely as secondary obligations or duties.
2. The client 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 Client shall be obliged to notify any changes in the contact person (including deputy) without delay.
3. The Customer is obliged to ensure the technical requirements for the provision of the services by the Contractor itself.
  1. The client guarantees the data transfer (upload of road condition recordings) between the hardware and the Internet (not via mobile data volume, but in particular via a WLAN connection). The client provides at his own expense the necessary bandwidth and data volume to independently transfer the data recorded with the hardware. Should no network be available, the client undertakes to set up such a network or to access a network accessible to him.
  2. For optimal use of the vialytics smartphone app, the client will only use the end devices provided by the contractor (for example Apple iPhones). Use of the vialytics smartphone app on end devices not provided by the Contractor (for example Apple iPhones) is possible in consultation with vialytics and for an additional charge.
  3. For optimal use and correct function of the vialytics smartphone app, the client must ensure that the last update of the operating system (currently iOS) on the smartphone is no longer than 6 months ago.
  4. The end devices provided by the Contractor, 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, the Contractor reserves the right to charge a flat-rate processing fee of a reasonable amount, but at least EUR 25.00.
  5. For optimal use of the vialytics web system, the client 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 Client, the usability of the Contractor's services may be restricted under certain circumstances. The Contractor is not responsible for these restrictions.
  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 Client's users.
  7. In addition, the client must ensure the security of the Internet connection used, which means in particular also the use of company-owned instead of public Virtual Private Networks (VPN) as well as ensuring the use of VPN connections in public networks. Furthermore, the client is obliged to protect his access data to the vialytics web system by technical and organizational measures; the client has to instruct his employees not to pass on the access data to third parties.
  8. The client 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 the contractor if required.
4. The client is responsible for the technical setup and administration of the user account for the vialytics web system. This applies regardless of whether the Contractor supports the Client in setting up the user account, in whatever form.
5. The Customer shall support the Contractor to a reasonable extent in identifying and eliminating faults when they occur. In particular, the Customer shall comply with the requirements for fault reports in Section 5.3.
6. The client performs the route checks on his own responsibility. A good quality of the raw data is in the common interest, therefore the client acts in his own interest when recording the data and uses the terminal device. The client will act properly during the route control, especially within the framework of the StVO.
  When collecting data, pay particular attention to the following conditions:
  - Weather conditions: Track checks 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 roadways 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 the client must be spread out on the dashboard to avoid reflections.
  - Light conditions: The driving tours are to be carried out during daylight, marginal times such as one hour after official sunrise and one hour before official 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 (e.g. Mercedes-Benz Smart, Volkswagen Caddy, Volkswagen Crafter, Mercedes-Benz Sprinter).
Rights of use
1. The Contractor grants the Customer a non-exclusive, simple, non-transferable right, limited in time to the term of the contract, to use the booked software and the rented hardware. A transfer of ownership rights to hardware, software or parts thereof is not associated with this contract. The Customer is merely granted use within the framework of the contractual provisions during the term of the contract. The rights of use granted are not transferable, sublicensable or otherwise released for transfer to third parties.
2. The Customer undertakes to use the software exclusively in accordance with the contract and to observe any instructions for use given by the Contractor.
3. The Client grants the Contractor 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.
Prices, terms of payment and payment methods
1. The price is calculated depending on the type of road (road, service road, cycle path), the number of kilometers and any additional services booked and is generally specified in the usage agreement.
2. The Contractor reserves the right to draw up a price list for its services and to make it available to the Client.
3. Unless otherwise agreed in the individual case, the prices are net plus the respective statutory value added tax.
4. The Contractor shall invoice the Client for the services after conclusion of the utilization contract. The remuneration shall be due for payment with a payment term of 14 days after receipt of a corresponding invoice. Upon expiry of the aforementioned payment deadline, the Client shall be in default. In this case, the Contractor 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.
5. Any additional services (add-ons) booked after the conclusion of the usage contract will be provided for the remaining term of the contract and will be charged pro rata in relation to the prices for the remaining term of the usage contract (before automatic renewal).
6. In the event of a return debit note (in particular due to lack of required coverage of the account, due to expiration of the account, unauthorized objection of the account holder or incorrect entry of the account data), the Customer authorizes the Contractor to submit the debit note for the respective due payment obligation a second time. In such a case, the Customer shall be obliged to pay the costs incurred by the return debit note. Further claims are reserved.
Start of contract, contract term and termination
1. The user contract is concluded from the agreed date initially for the duration of the term agreed in the user contract. During this minimum term, ordinary termination is excluded on both sides. § Section 545 BGB shall not apply.
2. In the event of an automatic extension of the usage agreement, the contractual relationship shall be continued with the hardware provided; new hardware shall - merely by way of clarification - not be owed.
3. The right of both contracting parties to terminate for cause shall remain unaffected.
4. In particular, the Contractor is entitled to interrupt access to the services of the vialytics Web System and/or to terminate the User Agreement with immediate effect, without prior formal notice, in the event of a serious breach by the Client, in particular if the Client 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 Client under the Contract of more than thirty (30) days;
  - Failure by the client to provide essential information to enable vialytics to use the vialytics web system;
  - gross negligence on the part of the client or a use that does not correspond to the main purpose of the vialytics web system;
  - Failure to comply with the law on personal data.
5. Any notice of termination must be in writing to be effective. Upon effectiveness of the termination, the user account(s) of the client will be blocked.
6. The Contractor's performance obligations shall end at the point in time agreed upon in the User Agreement, but at the latest upon termination of the User Agreement. An obligation of the Contractor to grant the Client access to the vialytics Web System beyond the end of the contract term is excluded. The Customer undertakes to return the provided hardware components to the Contractor with a period of thirty (30) days after the end of the contract term.
7. If no payment has been made after the expiration of a deadline of one calendar week after the due date set by the Contractor, the Contractor is entitled to immediately block the Client's access to the vialytics web system. The Contractor shall inform the Customer of this blocking in advance, setting a further deadline of one calendar week. In this case, the Customer remains obligated to continue to pay the agreed remuneration plus any default interest. Any damage caused to the Client by the blocking for this reason cannot be asserted against the Contractor.
Limitation of liability
1. Claims of the client for damages are excluded. Excluded from this are claims for damages by the Client arising from injury to life, limb or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by the Contractor, its legal representatives or vicarious agents. Essential contractual obligations (cardinal obligations) are those whose fulfillment is necessary to achieve the goal of the contract of use.
2. In the event of a breach of material contractual obligations (cardinal obligations), the Contractor shall only be liable for the foreseeable damage typical for the contract if such damage was caused by simple negligence, unless the Client's claims for damages are based on injury to life, body or health.
3. The restrictions of Clauses 10.1 and 10.2 shall also apply in favor of the Contractor's legal representatives and vicarious agents if claims are asserted directly against them.
4. The limitations of liability resulting from clauses 10.1 and 10.2 shall not apply insofar as the Contractor has fraudulently concealed the defect or has assumed a guarantee for the quality of the item. The same shall apply insofar as the Contractor and the Customer have reached an agreement on the quality of the item. The provisions of the Product Liability Act shall remain unaffected.
5. Each of the contracting parties is obliged to have taken out adequate liability insurance for liabilities under this usage agreement.
Confidentiality
1. "Confidential Information" shall mean all information and documents of the respective other party which are marked as confidential or are to be regarded as confidential due to the circumstances, in particular information about products of the respective party, including documentation and other documents, operational processes, business relations and know-how. The parties agree to maintain confidentiality about such confidential information. This obligation shall continue for a period of 5 years after termination of the user agreement.
2. Such Confidential Information shall be exempt from this obligation,
  - which were demonstrably already known to the recipient at the time of the conclusion of the usage agreement or become known thereafter from a third party, without violating a confidentiality agreement, legal regulations or official orders;
  - which are public knowledge at the time of the conclusion of the User Agreement or are made public thereafter, unless this is due to a breach of this Agreement;
  - which must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the recipient obligated to disclose shall inform the other contracting party in advance and give it the opportunity to object to the disclosure.
3. The Parties shall only grant access to Confidential Information to those consultants who are subject to professional secrecy or who have been previously imposed obligations corresponding to the confidentiality obligations of this Agreement. Furthermore, the Parties shall disclose the Confidential Information only to those employees who need to know it for the performance of this User Agreement and shall impose confidentiality obligations on such employees to the extent permitted by employment law.
Privacy
1. The contracting parties shall comply with applicable data protection provisions applicable to this contractual relationship, in particular those of the EU General Data Protection Regulation (hereinafter "DSGVO") as well as the Federal Data Protection Act or the respective State Data Protection Act, within the scope of the performance of the contract.
2. In the course of providing its services, vialytics processes personal data on behalf of the client. For this reason, the contracting parties simultaneously conclude the agreement on commissioned processing pursuant to Art. 28 DSGVO, which can be accessed at [https://vialytics.notion.site/vialytics-Vereinbarung-zur-Auftragsverarbeitung-6762f2f34c1240169385b4cb5a79878b], upon conclusion of the user agreement.
Subject to change
1. The Contractor 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 in text form (§ 126b BGB) within a period of four (4) weeks after receipt of the amendments and/or changes, provided that the Contractor has expressly pointed out this fiction of approval in the notice of change.
2. Clause 13.1 shall apply mutatis mutandis to the adjustment of prices or price lists pursuant to Clause 8.2 (if existing), in particular to compensate for personnel and other cost increases, in an appropriate amount. The Contractor 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.
3. The Contractor 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 13.1 shall apply accordingly.
4. If the Customer objects to an amendment and/or modification within the meaning of this Section 13. in due form and time, the contractual relationship shall be continued under the previous conditions. In this case, the Contractor reserves the right to terminate the contractual relationship extraordinarily with a notice period of four (4) weeks to the end of the month.
5. Amendments to these General Terms and Conditions must be made in text form. This also applies to the waiver of the text form itself.
Final provisions
1. Amendments and supplements to all usage agreements concluded between the parties shall only be agreed in writing. Text form (§ 126b BGB) satisfies this written form requirement. Insofar as written form has been expressly agreed by contract (e.g. for a contract amendment or termination), text form shall not suffice.
2. If individual provisions of the license agreement (including these GTC) are or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. The same shall apply if and to the extent that a loophole should become apparent in this contract of use (in particular because the parties have overlooked a point requiring regulation). In place of the invalid or unenforceable provision or to fill the gap, an appropriate provision shall apply which, as far as legally possible, corresponds to the sense and purpose of the invalid or unenforceable provision or to the presumed intention of the parties if they had considered this point.
3. The contractual relationship existing between the parties shall be governed exclusively by the laws of the Federal Republic of Germany to the express exclusion of the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for all disputes arising out of and/or in connection with this contractual relationship between the Contractor and the Customer shall be, to the extent legally permissible, the Contractor's place of business.
4. For the conclusion of the contract, a version of these GTCs in German, French and English is available to the Client, which can be accessed on the Contractor's website. The German version valid at the time of conclusion of the contract shall be decisive for the conclusion of the contract for Clients from the DACH region - Germany, Austria, Switzerland.

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