1. These Terms and Conditions shall apply to all business relations between Prewave GmbH (hereinafter “Prewave”), and its customers (hereinafter “customer”; Prewave and customer hereinafter collectively also “Parties” or individually “Party”) regarding the provision of services by Prewave, including, but not limited to, the delivery of “Prewave Alerts”, which are data signals about potential past, present or future risk events, classified in different categories (labor unrest, industrial accidents, etc.) and occurring at certain targets (e.g. companies, Points-of-Interest, etc.) and/or certain regions.
2. Alternative, contrary, or supplementary terms and conditions of the customer (irrespective of form) shall only become applicable to the contractual relationship between Prewave and the customer if and to the extent that Prewave expressly consents to their application in writing. References to such terms and conditions of the customer within any purchase order are expressly rejected and shall not take effect.
3. In the event of conflicting provisions between these Terms and Conditions and other documents forming the final Contract, the order of precedence shall apply in descending order as:
• The Proposal
• These Terms and Conditions
• Data Processing Agreement (and Technical and Organisational Measures)
• Non-Disclosure Agreement
• Service Level Agreement
4. Prewave offers its customers access to its shared and cloud-hosted software-as-a-service (“SaaS”) platform and/or its data- as-a-service (“DaaS”) Prewave API. Unless explicitly stated otherwise in the Proposal, Prewave does not develop or adapt software specifically for its customers, therefore this contractual relationship does not constitute a contract for services (“Werkvertrag”).
1. The scope of services is set forth in the Proposal.
2. The customer shall provide Prewave in a timely manner with a complete and accurate list of Suppliers and/or targets that customers wishes to monitor using the Prewave services.
3. Unless agreed otherwise in the Proposal, the customer shall access the Prewave services via the delivery formats outlined in the Proposal.
4. In case of access via the Prewave API, the customer is responsible for establishing a data connection between the intended workplace/system and the Prewave API at its own cost and expense. Prewave is entitled to redefine its API at any time if this is required to provide smooth access to the services. In this event, the customer shall establish a connection with the redefined API. The customer shall receive an access token to the API or login credentials to the Platform (Dashboard). The customer shall only disclose the access token to authorized persons on a need-to-know- basis (e.g. own employees) but shall otherwise keep it strictly confidential and refrain from disclosing the same to any third party.
5. In case of access via the Prewave Platform (Dashboard), the customer shall receive login credentials for each user. Each user is issued to one single authorized person and shall not be used by any other persons or shared among a group of persons. The customer shall only disclose the user login credentials to authorized persons on a need-to-know- basis (e.g. own employees) but shall otherwise keep it strictly confidential and refrain from disclosing the same to any third party.
6. If Prewave determines that the customer or an affiliate, as applicable, are not in compliance with these Terms and Conditions, the customer shall immediately remedy such non-compliance, failure to do so can result, inter alia, in the immediate termination of the contractual relationship for cause and claims in damages.
7. The customer expressly agrees that any access tokens or login credentials, are provided exclusively for the customer’s undertaking and that the customer is not permitted to transfer or disclose the access token and/or the Prewave Alerts and datapoints to any third party.
8. The customer`s access to the Prewave API or Platform shall be subject to fair use. In case the customer’s access to the Prewave API leads to an overload, Prewave reserves the right to technically restrict the customer’s access to its API to one (1) access every ten (10) minutes on a temporary or permanent basis. The customer is not entitled to any claims against Prewave on the basis of such measures.
9. Prewave itself is wholly reliant on data from third parties to provide its services. Prewave therefore must reserve the right to limit or discontinue its services in case the provision of data from its sources is interrupted or limited for any reason. If the interruption constitutes a significant restriction of Prewave services for more than 30 consecutive days, the customer has the right to terminate this Contract for good cause. Otherwise such measures shall not constitute a breach or non-performance of the contractual relationship on part of Prewave.
10. Prewave is not limited in the selection of third parties to be used as a source for the creation of Prewave Alerts and/or other datapoints, nor in the engagement of additional third parties to expand and continuously improve its services.
11. Prewave Alerts and other datapoints may contain snippets, such as links, texts or pictures/photographs, that might be subject to protection under intellectual property laws (in particular, copyright) for the benefit of third parties. The services provided by Prewave consist of the aggregation and the analysis of external data sources and explicitly not in the sale of licenses in the original data. Prewave is permitted to include such material in the Prewave Alerts and/or on the Prewave Platform, however, the customer acknowledges, that Prewave is not permitted to grant any licenses for redistribution, storage, reproduction, delivery to any third parties (including customers), or further publication of the delivered links, pictures/photographs, texts or snippets and the like contained in Prewave Alerts and other datapoints. Therefore, the customer is obliged to verify whether it needs further licenses for extended use (outside of the Prewave Platform) and to acquire such licenses directly from the right-holder, if deemed necessary. Customer will indemnify and hold Prewave harmless in respect of any claim in connection therewith.
12. In the event that a holder of a right directly requires Prewave to alter any Prewave Alerts or datapoints or implement any changes in the structure or data format, Prewave is free to implement such changes or remove such materials from all results lists (“notice and take-down”). The customer is not entitled to any claims against Prewave on the basis of such measures.
13. Prewave shall have the right to modify or adapt the services if this is necessary or expedient to reflect technical progress and it does not restrict the services for the customer provided by Prewave.
1. The fees as set forth in the Proposal apply. Prewave’s claims shall be due and payable in full without any deductions within thirty (30) days of issuing the invoice. The statutory applicable VAT and any other applicable taxes and levies must be added to all fees. In case of default, late payment fees apply in the amount of twelve (12) % p.a. In addition thereto, customer shall be liable for any default charges and expenses incurred in connection with the customer’s delay.
2. Where Prewave and customer agree on a payment plan, whereupon the fee shall be payable in regular installments, it is hereby agreed that default of the customer with one single installment will result in the entire outstanding amount becoming due and payable immediately without further notice.
3. The agreed fees and prices are subject to indexing based on the 2015 Consumer Price Index (CPI) published by Statistics Austria, or an index replacing the CPI. The index number published in the month where the contractual relationship between Prewave and the customer was entered into shall serve as base value.
4. A set-off of alleged counterclaims of the customer against the claims of Prewave is excluded.
1. Prewave grants the customer a non-exclusive, non-transferable and non-licensable right to use the provided services (Prewave Alerts and other datapoints), which shall be limited in the following ways:
a. temporally limited to the duration of the contractual relationship,
b. substantively limited to the targets and/or regions/territories specified in the Proposal,
c. limited to the respective legal entity specified in the Proposal,
d. limited to the IT software/systems specified in the Proposal and
e. substantively limited to the purpose of this contractual relationship.
2. Any additional uses beyond the aforementioned limitations shall not be permitted without the prior written consent of Prewave (which Prewave is free to withhold), in particular:
a. the transfer to third parties of the rights of use that have been granted and/or the access token for the Prewave API,
b. any change, adaptation and/or publication or disclosure of Prewave Alerts or other datapoints, in whole or in part, to any third party,
c. the disclosure of performance metrics and benchmarking results regarding Prewave Alerts or other datapoints to any third party.
3. The service contains elements and content which do or may enjoy protection (pursuant to e.g. Copyright and Allied Copyright Law, Trademark Law, Patent / Utility Model Law, Design Law, Competition Law or other laws) for the benefit of Prewave, co-operation partners of Prewave or third party data providers. Prewave, its co-operation partners and third party data providers expressly reserve(s) any and all rights in and to the same. Any use of these elements and content (or parts thereof), extending beyond what is necessary for using the services (including Prewave Alerts) by the customer under normal circumstances, is inadmissible without the prior written consent of Prewave. This applies in particular, but without limitation, to the software, names, characters, trademarks and other marks/signs, content, layout, design and interface of the website of Prewave, databases, videos, photographs, texts and graphics.
4. If the customer violates the rights of use granted herein, Prewave shall have the right to terminate this Contract immediately for cause without prior notice. In addition, Prewave reserves the right to take judicial and non-judicial action for damages incurred by any violation of the rights of use granted herein.
1. This Contract does not establish rights of any kind in favor of end-customers of the customer, or third parties. If such persons raise claims against Prewave in connection with the services pursuant to the contractual relationship between Prewave and the customer, on whatever legal ground, the customer shall indemnify Prewave and hold it harmless against such claims.
2. Prewave provides its services based on automated processing of external third-party data sources, the quality and validity of which are outside of Prewave’s control. In addition, the algorithms and prediction models Prewave uses to generate Prewave Alerts and other datapoints are non-deterministic and probabilistic by design. For these reasons, deviations from actual events cannot be avoided.
3. Accordingly, Prewave makes no warranty, accepts no responsibility and assumes no liability for (i) a particular characteristic, suitability, merchantability or fitness for a particular purpose of the services; (ii) incomplete, incorrect, outdated or erroneous data being the basis of or incorporated into Prewave Alerts and/or on the Platform; (iii) the validity, completeness or accuracy of Prewave Alerts and other datapoints; (iv) uninterrupted or error-free availability and accessibility of Prewave Alerts or the services (insofar as the availability under the Service Level Agreement is provided); (v) transmission-, hardware-, software- or network-errors; (vi) lost, damaged, incomplete, corrupted or delayed transmission of data; (vii) disruptions, impairments of the data transmission between third party sources and Prewave or Prewave and the customer or any technical difficulties or maintenance; (viii) the lawfulness or the freedom of the data or Prewave Alerts from third-party-rights; (ix) the secure / risk-free access or retrieval of the website any link contained in the Prewave Alerts or other datapoints is leading to.
4. In general, the customer recognizes the uncertainties inherent in any analysis or information that may be provided as part of the services and acknowledges that the services are not a substitute for its own independent evaluation and analysis and should not be considered as professional advisory services or recommendations to pursue a specific course of action. Prewave shall not be liable for any actions or decisions that customer may or may not take based on the services or any information or data contained therein. Prewave does not warrant or accept any liability for the completeness or accuracy of the checklists and questionnaires provided on or as part of the services (if applicable). Customer understands that it assumes the entire risk with respect to the use of the services
5. If customer uploads documents and/or data to the Prewave Platform, the customer warrants that (i) it has the necessary rights to upload said documents and/or data and (ii) it is entitled to reproduce the documents and/or data and (if applicable) to make them available to the public pursuant to copyright and other applicable laws. Customer indemnifies and holds Prewave harmless for any claims in connection therewith.
6. Prewave shall be statutorily liable for losses only in case wrongful intent or gross negligence is proven. Where liability is not validly excluded within this Contract and, unless and to the extent that mandatory law provides otherwise, all claims and causes for actions against Prewave for losses caused by slightly negligent behavior during the term of the contractual relationship shall – cumulatively – be limited (i) in case of flat fee agreements to fifty (50) % of the amount of the agreed fees and (ii) in case of agreements with recurring charges/payments, limited to the amount actually paid by the customer for the services provided by Prewave during the six (6) months preceding the occurrence of the first claim or cause of action with a local currency equivalent of Euro 10,000 (in words: Euro ten thousand), whichever is less.
7. If and to the extent legally permissible, there shall be no compensation for (direct or indirect) consequential damages, loss of data, savings not realized, lost interest and expenditures made in vain and lost profit.
8. The customer shall be responsible for its affiliates’ compliance with the terms and conditions of this Contract.
9. The customer shall give Prewave prompt notice of any disruption or defect of the provided services in writing or by e-mail, no later than seven (7) calendar days upon the customer becoming aware thereof. If not asserted within the time-limit given, the customer shall be deemed to have forfeit its right to raise warranty or damage claims.
10. Prewave shall remedy the notified defects within a reasonable period of time (at least fourteen (14) working days). After unsuccessful expiry of the reasonable period, the customer may request a price reduction and, if it is not a minor defect, extraordinarily terminate the contractual relationship. Neither the customer nor a third-party commissioned by the customer shall themselves be entitled to remedy said defect of the provided services. Furthermore, even if the defect already existed at the time of the conclusion of the Contract, the customer is entitled to claim damages only if Prewave is at fault and within the scope of the contractually agreed limitation of liability.
11. The customer’s claim to any reduction of the remuneration as a result of an unremedied defect affecting the services shall be excluded/void if the defect simultaneously affects the agreed Service Levels (availability). In this case, the remedy established as part of the Service Level Agreement shall be applicable.
12. Prewave shall be released from the obligation to provide services under this Contract if and to the extent that the non- performance of services is due to the occurrence of any circumstances of force majeure (an event of “force majeure” shall have the meaning of events beyond the reasonable control of Prewave, which prevents Prewave to (timely) perform its contractual obligations and shall include, but not be limited to, Acts of State, war, insurrection, riot, civil disorder, strike, labour unrest, embargo, blockade, explosion, fire, earthquake, volcanic eruption or other severe adverse environmental disasters or weather conditions or other Acts of God). Either Party shall notify the other Party of the occurrence of a case of force majeure in written form without delay.
1. The term (= commitment period) of the contractual relationship is stated in the Proposal.
2. Unless agreed otherwise in the Proposal, the contractual relationship shall be renewed automatically for an additional twelve (12) months unless one of the Parties gives the other Party written notice of termination at least three (3) months prior to the expiration of the original term.
3. Either Party shall have the right to terminate the contractual relationship for cause with immediate effect, if and to the extent such cause makes further collaboration seem unreasonable.
1. The personal data provided by the customer (if any) in connection with the contractual relationship, particularly the contact data (i.e. names, telephone number, fax number and e-mail address), are processed by Prewave for the purposes of provision and performance of the contractual services, pursuant to Art 6 (1) lit. b General Data-Protection-Regulation (GDPR REG (EU) 2016/679).
2. Subject to revocation, the customer hereby expressly agrees to receive (via fax, e-mail and/or SMS) messages at any time with information concerning the contractual service, even if these messages contain advertisements from Prewave, in addition to the information concerning the contractual service, pursuant to section 174 (1), (3) Telecommunications Act (TKG 2021).
3. Prewave shall comply with mandatory data protection laws, as amended, when directly applicable to Prewave. The processing of personal data by Prewave is justified by relevant regulations and specifically regulated in separate data processing agreements.
4. The following data provided by the customer may be deleted upon the customer’s request:
• any user information or personal data such as (Emails, Usernames, Names, etc.) specific to a user of the customer;
• any user activity that is private and not an integral part of the Prewave Platform as a whole (such as private follows or the creation of private collections) specific to a customers’ user;
• any configuration data such as a user’s delivery settings and perspectives specific to a User ordered by the customer;
• any relationships (following and/or connecting) with Suppliers and other Targets initiated by a customer’s user.
5. The following data is property of Prewave and may not be deleted on request:
• any part of the Prewave Supplier and Target Directory (Suppliers, Transportation Hubs, etc.);
• Prewave Alerts and other datapoints generated by Prewave;
• any user activity that is public on the Prewave Platform and/or is an integral part of the Prewave Platform as a whole (e.g. public comments, publicly shared collections, etc.).
6. Unless agreed otherwise in the Proposal, any Supplier and other target information provided by the customer to Prewave may be used to add, improve or expand the Prewave Supplier and Target Directory.
7. Supplier and other target relationships of the customer are not disclosed to any third parties (on the Prewave Platform or otherwise) unless it is required for the provision of services by Prewave to said customer (e.g. generation of Prewave Alerts, conducting of Historical Supplier Screenings) or expressly agreed to by the customer.
1. The Terms and Conditions are subject to Austrian law excluding its conflict-of-law provisions and the provisions of the UN Convention on Contracts for the International Sale of Good (CISG).
2. The place of performance shall be Vienna (Austria), and all disputes, differences of opinion and claims arising under the contractual relationship and/or these Terms and Conditions or relating to these Terms and Conditions, their violation, dissolution or invalidity shall exclusively be filed with a court with subject matter jurisdiction at the place where Prewave has its registered office.
1. The entire content of the Contract is confidential for both contracting Parties. The Parties shall procure that its employees/contractors, advisors and/or other third parties acting for the respective Party will be bound by this confidentiality obligation.
2. Prewave is entitled to make reference to the customer and its logo, whether namely, in writing or electronically, unless expressly revoked by the customer in writing.
3. These Terms and Conditions (including the Proposal and its other appendices) contain the entire agreement between the Parties about its subject matter and any concluded previous understanding, agreement, representation or warranty, verbal or written, relating to that subject matter is replaced thereby and has no further effect.
4. Amendments or supplements must be in writing to be valid. This also applies to any deviation from the written form hereby agreed-upon, so that there can be no presumption of tacit deviation from this requirement for validity.
5. If individual provisions of these Terms and Conditions are or become invalid or unenforceable or the Terms and Conditions are deemed as incomplete, the other provisions of these Terms and Conditions shall be unaffected and shall remain valid and enforceable. Invalid or unenforceable provisions shall be interpreted and amended, by mutual consent, with valid and enforceable provisions that come closest to the intended economic outcome of the Parties.
6. Prewave reserves the right to change the Terms and Conditions from time to time, make the then valid version available and inform its customers thereof. The contractual relationship thereafter will be subject to the modified Terms and Conditions unless agreed otherwise between the Parties.
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