License Agreement (plus Bill of Materials)

1. Preamble

MAXI solutions e.U., owner: Maximilian Wöhrer, Rosensteingasse 70/15, 1170 Vienna Austria, FN 400238k (hereinafter referred to as “PROVIDER”) offers the software “Strap Finder VTO (Virtual Try-On)”. The software is an application which is loaded via an iframe into web pages in order to display watch straps virtually with a (user’s) watch.

The license agreement regulates the rental and use of the software “Strap Finder VTO (Virtual Try-On)” (hereinafter referred to as “SOFTWARE”) by way of a Software as a Service (SaaS) model.

This license agreement is exclusively addressed to persons who want to use the services for professional purposes, i.e. entrepreneurs in the sense of § 1 Abs 1 Z 1 KSchG (hereinafter referred to as “CUSTOMER”). This license agreement forms an integral part of the offer made to the CUSTOMER. Upon acceptance of the offer, this License Agreement shall be deemed to have been effectively agreed.

For reasons of better readability, no gender-specific differentiation is made. This is done without any intention of discrimination. All genders are equally addressed.

2. Scope of application

For all business relations between the PROVIDER and the CUSTOMER in connection with the rental and use of the SOFTWARE, this license agreement shall apply in the version valid at the time of the conclusion of the business transaction. Deviating terms and conditions of the CUSTOMER shall not apply, unless the PROVIDER has agreed to their validity in writing.

The contractual, ordering, and business language is German or English.

The license agreement is permanently available on the website.

The SOFTWARE contains proprietary software components and open source software components (hereinafter “OSS components”). With regard to the OSS components, the respective license terms of the OSS licensors shall apply. The PROVIDER is not a contractual partner of the CUSTOMER with respect to the OSS components and cannot be held liable for them. This license agreement therefore refers exclusively to the proprietary software components. The term “proprietary software” refers to those elements that were developed by the PROVIDER and whose source code is to be qualified as confidential.

3. Use of the open source components

The SOFTWARE developed and provided by the PROVIDER contains components that are licensed as open source software. The OSS components may only be used under the respective OSS license terms. The OSS components are listed in Appendix I. The source code of the OSS components (see “Repository” in Appendix I), the respective license texts, any copyright notices and their disclaimers shall be made available to CUSTOMER via the link in Appendix I.

The PROVIDER reserves the right, from time to time and at its sole discretion, to remove or replace any third party technology implemented in or associated with its own technology.

Upon the CUSTOMER’s request, the open source software code may also be provided on a durable medium (e.g., USB stick).

Caution: The CUSTOMER’s contractual partner with regard to the OSS components used is not the PROVIDER, but the respective open source licensor.

Attention: The PROVIDER points out that there are risks associated with the use of OSS components. Examples are: Since the source code of the OSS components is public, it is susceptible to security incidents; furthermore, permanent maintenance and use of the OSS components is not guaranteed; warranty and damage claims are largely excluded.

4. Terms of use

The CUSTOMER is obligated to provide truthful and complete information within the scope of the business relationship and to keep his data up to date at all times. He has to treat his data confidentially. If the CUSTOMER suspects misuse by third parties, he must inform the PROVIDER immediately.

The CUSTOMER shall take all necessary measures to prevent unauthorized access or use of the SOFTWARE and/or any use that could impair or disrupt the integrity or performance of the SOFTWARE or any services provided by the PROVIDER and/of its agreed partners.

Each party is obligated for itself to observe the legal provisions relevant to it (in particular of a fiscal, social security, trade and data protection nature) on its own responsibility.

In case of illegal use of the SOFTWARE, the PROVIDER reserves the right to deny the CUSTOMER the use of the SOFTWARE.

It is the CUSTOMER’s responsibility to provide the electronic infrastructure (especially hardware and software infrastructure) necessary for the use of the services. This also means that the CUSTOMER has the necessary software and hardware equipment to use the SOFTWARE. The PROVIDER is not obligated to provide information or advice in this regard.

The integration/implementation of the SOFTWARE as well as the provision/preparation/hosting of the data for display are the responsibility of the CUSTOMER, unless otherwise agreed.

Note: It is pointed out that the quality of the objects displayed by the SOFTWARE is largely determined by the quality of the data provided (well-lit frontal image of the watch, cropped image of the watch band).

It is the sole responsibility of the CUSTOMER to ensure that the SOFTWARE does not capture content that contains illegal information (especially products and images). The PROVIDER shall not be liable for any illegal use of the SOFTWARE.

5. Payment modalities

The prices quoted by the PROVIDER are in EUR. In case of doubt the VAT is not included (and therefore to be added).

The content of the agreed services results from the package or offer selected by the CUSTOMER.

The prices stated at the time of the order shall apply.

Payments are due upon issuance of the invoice. If the invoiced amount is not paid within 14 days, the PROVIDER shall charge 9.2% per year in statutory interest on arrears, above the current prime rate of the European Central Bank, from the due date. In the event of default, the CUSTOMER undertakes to reimburse the PROVIDER for any reminder and collection expenses incurred, insofar as they are necessary for appropriate legal prosecution. Costs of EUR 40.00 may be claimed per reminder.

In the event of a delay in payment of more than 30 days, the PROVIDER shall be entitled to withhold its services. If the CLIENT is more than 30 days in arrears with a payment, the PROVIDER may demand payment of the entire outstanding amount at once (“Terminverlust” ).

Payment shall be made in advance for one month or one year, depending on the CUSTOMER’s choice. In the case of a subscription, the account specified by the CUSTOMER may be debited automatically.

The PROVIDER reserves the right to adjust the agreed charges once a year for inflation. The Austrian consumer price index published on the website of Statistics Austria at the time of conclusion of the contract shall serve as the reference value. A price increase is especially considered if the costs for hosting the SOFTWARE increase.

6. Exploitation rights, support and source code

The CUSTOMER may use the SOFTWARE offered by the PROVIDER only for the intended purpose.

Upon full payment of all fees and expenses, the PROVIDER grants the CUSTOMER a non-exclusive license (within the meaning of § 24 para 1 first sentence UrhG “Werknutzungsbewilligung”) to use the SOFTWARE, which is limited in time to the duration of the subscription (“subscription license”) and in space and content to the purposes of the business relationship.

Sublicensing or further licensing is only permitted with the explicit consent of the PROVIDER.

The right to decompile and reverse engineer the SOFTWARE is excluded to the extent permitted by law. The CUSTOMER is not entitled to modify the SOFTWARE without the consent of the PROVIDER.

Markings of the SOFTWARE, especially copyright notices, trademarks, logos, serial numbers or similar may not be removed, changed or made unrecognizable.

The source code of the SOFTWARE is explicitly not owed. Support services are also not owed.

Per license the CUSTOMER is entitled to use the SOFTWARE only for one specific domain. If the SOFTWARE is to be coupled to several domains, the PROVIDER must be informed.

Note: The use of the OSS components is governed by the respective license terms. All restrictions of use and copyright designations made in these license terms do not apply to the OSS components.

7 Backups and storage of data

Unless expressly agreed otherwise, the PROVIDER does not back up any data provided, generated and/or stored in the SOFTWARE during its use.

It is pointed out that data collected with the SOFTWARE will be deleted after termination of the contractual relationship. Therefore, it is the sole responsibility of the CUSTOMER to back up the data in a timely manner.

8. Duties to cooperate

The CUSTOMER is obligated to support the PROVIDER in the operation of the SOFTWARE continuously and to a reasonable extent and, if necessary, to provide (remote) access to the electronic infrastructure necessary for the use of the services. In particular, the CUSTOMER shall provide the PROVIDER with the necessary information, data and descriptions and communicate its wishes and ideas for the provision of services in a timely and clear manner.

In case of necessary (security) updates of the SOFTWARE, the CUSTOMER is obligated to tolerate their installation by the PROVIDER.

9 Changes, customizing, upgrades and updates

The CUSTOMER has the right to propose changes to the SOFTWARE (change request or customizing), whereby the PROVIDER is not obligated to implement these changes.

The desired changes are to be described by the CUSTOMER as precisely as possible in the form of a specification sheet.

Unless otherwise agreed, change requests and support requests shall be invoiced on a time and material basis at an hourly rate of EUR 130 plus VAT.

10 Warranty, exclusion of liability and declaration of indemnity

Decisive for the character of the SOFTWARE provided by the PROVIDER is the service description available at the time of the conclusion of the contract.

The PROVIDER is entitled to remedy any defects by economically and technically reasonable workarounds.

The PROVIDER’s liability for slightly negligent conduct is excluded.

The PROVIDER’s liability is limited to the amount of the annual fee paid or to be paid by the CUSTOMER. Liability for damages resulting from loss of data is limited to the amount that would have been incurred if data had been properly backed up, but not more than the amount of the annual fee.

Claims for damages by the CUSTOMER shall expire one year after they arise.

The PROVIDER is not liable for lost profits.

The PROVIDER shall endeavor to ensure a trouble-free operation of the SOFTWARE. This is naturally limited to services over which the PROVIDER has a possibility of influence. The PROVIDER is at liberty to restrict access to the SOFTWARE in whole or in part, temporarily or permanently, due to maintenance work, capacity concerns, and other events beyond its control.

The PROVIDER is not liable for any content (especially photos, ratings and advertising statements) published by the CUSTOMER in the SOFTWARE. The CUSTOMER indemnifies the PROVIDER in the event of a claim due to an alleged or actual infringement and/or violation of third party rights against all claims of third parties arising from actions of the user in connection with the use of the SOFTWARE for which the user is responsible.

Note: In the case of OSS components, liability and warranty are governed exclusively by the rules of the OSS license terms. These OSS license conditions usually contain far-reaching liability and warranty restrictions. The PROVIDER shall not be liable for the OSS components.

11 Data protection and protection of business and trade secrets

The transfer of data and information to the respective required business partners is permitted to the extent necessary for the fulfillment of the contractual relationship, legitimate interests and legal obligations (Art 6 para 1 lit b, c and lit f DSGVO). In all other respects, the PROVIDER shall be obligated to maintain secrecy about the circumstances, data or business and trade secrets of the other party that become known to it from the present business relationship and, in particular, to maintain data secrecy. These obligations regarding data and business secrecy shall also apply beyond the contractual relationship.

The source code of the SOFTWARE is to be qualified as a trade secret in the sense of § 26b UWG and as such is subject to appropriate secrecy measures.

The PROVIDER points out that data of the CUSTOMER may be processed for advertising purposes on the basis of legitimate interests (Art 6 para 1 lit f DSGVO). The CUSTOMER may object to this form of data processing at any time (Art 21 para 2 DSGVO).

The PROVIDER reserves the right to collect Big Data (i.e. aggregated, anonymous data) in the context of the performance of the contract. The PROVIDER is entitled to use and exploit such Big Data, for or without consideration, notably for statistics and/or analysis purposes.

If the PROVIDER processes personal data on behalf of the CUSTOMER, the parties shall conclude a contract processing agreement pursuant to Art. 28 DSGVO.

12. Audit clause

The PROVIDER has the option to audit the license-compliant use of the SOFTWARE. Notwithstanding the foregoing, the PROVIDER may request evidence from the CUSTOMER that the SOFTWARE is being used in a license-compliant manner. Inquiries in connection with the license-compliant use of the SOFTWARE must be answered truthfully.

The PROVIDER is entitled to check the CUSTOMER’s compliance with the legally compliant use of the SOFTWARE on site at any time after at least 14 days’ notice (license audit). The PROVIDER may use the services of an auditor or lawyer who is bound to secrecy. The PROVIDER shall respect the CUSTOMER’s business and trade secrets as well as data protection interests to the best of its ability. The audit shall be carried out during regular business hours, sparing the CUSTOMER’s operational activities. The costs incurred in this connection shall be borne by each party. The CUSTOMER is obligated to provide the PROVIDER with the information required for these purposes and to cooperate with the PROVIDER in the course of the license audit. Otherwise, the PROVIDER shall be entitled to withhold its services. This shall be without prejudice to any further legal claims.

13. Reference clause

The PROVIDER is entitled to refer to the fact of the business relationship with the CUSTOMER by a reference on its website or other marketing/business documents. He is entitled to use the CUSTOMER’s logo in this context. This right shall also exist beyond this contractual relationship.

14. Duration of contract

The contractual relationship is concluded for a period of one year.

Thereafter, termination is possible subject to a notice period of seven days to the respective day of the end of the contract. For better illustration an example: The contract is concluded on September 29. The contractual relationship can be terminated for the first time on September 29 of the following year, subject to a notice period of seven days.

If no notice of termination is given, the contractual relationship will be automatically renewed for the last agreed period.

15. Jurisdiction and applicable law

This contractual relationship shall be governed by and construed in accordance with Austrian law. The application of the UN Convention on Contracts for the International Sale of Goods is excluded.

The exclusive place of jurisdiction shall be the competent court in Vienna, Austria.

16. Changes to the license conditions

The PROVIDER is entitled to change these license terms at any time. The PROVIDER shall notify the CUSTOMER of such changes by sending the amended license terms to the email address last provided to CUSTOMER. The CUSTOMER has the right to object to this change. If the CUSTOMER does not object within 14 days from the date of sending this amendment, it shall be assumed that the CUSTOMER has impliedly agreed to the amendment of the terms and conditions of the license. Unilateral and factually unjustified changes to the license conditions cannot be implemented in this way.

17. Miscellaneous

Invalid provisions of individual parts of this contract shall not affect the validity of the remaining provisions. They shall be replaced by appropriate substitute provisions which, in the light of the purpose of the contract, come as close as possible to what the contracting parties would have intended had they known of the invalidity. The same shall apply in the event of loopholes contrary to the contract.

(November 2022)