Applicability of Terms and Conditions

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, in particular the delivery of “Prewave Alerts”. Prewave Alerts 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, the mere provision of services by Prewave without expressly objecting terms and conditions of the customer does not constitute consent. Otherwise such terms and conditions of the customer are herewith rejected.
3. Individual agreements entered into with the customer in individual cases (including the order form/proposal or any side agreements, supplements, and amendments) shall take precedence over these Terms and Conditions in all cases. Such individual agreements must be based on a written agreement (signed by all parties) or a written confirmation by Prewave.

Services by Prewave

1. The scope of services is set forth in the order form/proposal.
2. Unless agreed otherwise in the order form/proposal, the customer shall access Prewave Alerts via the delivery formats outlined in the order form/proposal.
3. 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 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.
4. In case of access via the Prewave Dashboard, the customer shall receive login credentials for each Dashboard user. Each Dashboard 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.
5. Prewave may at any time conduct an audit to ensure compliance with the Terms and Conditions. Such audits may also be conducted electronically utilizing the audit functionality of the software, designed to enable Prewave to automatically monitor that the use of the services complies with these Terms and Conditions and the rights granted hereunder. The customer expressly agrees and consents to such monitoring and reporting to Prewave. If the audit results determine 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.
6. The customer expressly agrees that any access tokens or login credentials, as well as the Prewave Alerts themselves, 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 to any third party; for the avoidance of any doubt, this shall include any entity affiliated with the customer by any means.
7. The customer`s access to the Prewave API or Dashboard shall be subject to fair use. In case the customer’s access 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.
8. Prewave itself is wholly reliant on data from third parties to provide its services, including Prewave Alerts. 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. It is hereby expressly agreed, that such a measure shall not constitute a breach or non-performance of the contractual relationship on part of Prewave. Should this situation persist, Prewave will get in touch with the customer in order to negotiate a solution.
9. Prewave Alerts 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 via the Prewave API consist of the aggregation and the analysis of external data sources and explicitly not in the sale of licenses in the original data. Prewave has respective contracts in place, allowing Prewave to include such material in the Prewave Alerts, 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. Therefore, the customer is obliged to verify whether it needs further licenses for extended use and to acquire such licenses directly from the right-holder, if deemed necessary. This is explicitly necessary for Alerts including links to TV, radio and print sources. The customer is obligated to consider the Terms of Services of the respective content provider. It remains the customer’s obligation and responsibility to obtain any right of usage, taking into consideration potential requirements in different jurisdictions. Customer will indemnify and hold Prewave harmless in respect of any claim in connection therewith.
10. If the customer becomes aware of any infringement of intellectual property rights, it shall inform Prewave thereof without delay. In this event or if a holder of a right directly requires Prewave to alter any Prewave Alerts 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.
11. 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.

 

Fees

1. The fees as set forth in order from/proposal apply. Prewave’s claims shall be due and payable in full without any deductions within fourteen (14) 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.

 

Right of Use

1. Prewave grants the customer a non-exclusive, non-transferable and non-licensable right to use the provided services (Prewave Alerts), which shall be limited in the following ways:

• Temporally limited to the duration of the contractual relationship,
• Substantially limited to the targets and/or regions/territories specified in the order form/proposal,
• Limited to the respective legal entity and business unit specified in the order form/proposal,
• Limited to the IT software/systems specified in the order form/proposal and
• 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:

• The transfer to third parties (including, without limitation, entities affiliated with the customer) of the rights of use that have been granted and/or the access token for the Prewave API,
• Any change, adaptation and/or publication or disclosure of the Prewave Alerts, in whole or in part, to any third party (including, without limitation, entities affiliated with the customer),
• The disclosure of performance metrics and benchmarking results regarding Prewave Alerts to any third party (including, without limitation, entities affiliated with the customer).

3. The service (including Prewave Alerts) contain 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 service (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 Agreement immediately for cause without prior notice. In addition, Prewave shall be entitled to seek liquidated damages of up to a local currency equivalent of EUR 10,000 (in words: Euro ten thousand) for each individual violation under this contractual relationship. The customer has the right to prove – and shall bear the burden of proof – that exceeding the limits of the rights of use did not cause any damages or only caused lesser damages. Prewave reserves the right to take judicial and non-judicial action if actual damages are higher, irrespective of its demand for liquidated damages and, if appropriate, in addition to such demand.

 

Liability and Warranty

1. This Agreement 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 (Prewave Alerts) 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 are non-deterministic and probabilistic by design. For these reasons, deviations of Prewave Alerts 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 (including Prewave Alerts); (ii) incomplete, incorrect, outdated or erroneous data being the basis of or incorporated into Prewave Alerts; (iii) the validity or accuracy of Prewave Alerts; (iv) uninterrupted or error-free availability and accessibility of Prewave Alerts or the services; (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 is leading to.
4.  For the sale and/or delivery of Prewave Alerts, section 377 of the Austrian Commercial Code (UGB), as amended, shall apply. The services must be assessed by the customer without delay upon delivery. Claims with respect to any defects that have been detected or that could reasonably have been detected with the proper attention must be made to Prewave in writing without delay after the services have been provided/delivered. Otherwise Section 5.8 shall apply.
5.  Where liability is not validly excluded herein, Prewave shall be liable for losses only in case wrongful intent or gross negligence is proven, and such losses shall be limited to typical, foreseeable contractual damages due to violations of material obligations. Apart from and/or beyond this, the customer shall have no claims for damages, of whatever legal nature, against Prewave unless and to the extent that mandatory law provides otherwise.
6.  If and to the extent legally feasible, all claims and causes for actions against Prewave for all losses culpably caused 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. 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.
7.  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 three (3) 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.
8.  If the customer asserts timely claims against Prewave for deficient performance (pursuant to the preceding paragraph), the customer’s exclusive remedy shall be to reduce the portion of the fee attributable to the deficient performance. Other warranty claims, including but not limited to rescission of contract (Wandlung) shall be excluded. The statute of limitations for claims for deficient performance shall be six (6) months.
9.  The rescission of contract based on error (Irrtum) and/or section 934 of the Austrian Civil Code (ABGB) (laesio enormis) are hereby expressly excluded.
10.  Prewave shall be released from the obligation to provide services under this agreement 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.

 

Duration of the Agreement

1. The term of the contractual relationship is stated in the order form/proposal.
2. Unless agreed otherwise in the order form/proposal, the contractual relationship shall be renewed automatically for additional twelve (12) month-periods unless one of the Parties gives the other Party written notice of termination at least six (6) months prior to the expiration of the original or prolonged 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. This shall, in particular, be the case if one of the following is fulfilled:

• if the customer violates Section 4 of these Terms and Conditions despite a warning issued by Prewave on a one-time basis;

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• if the customer does not meet its payment obligations despite being provided a 14-day grace period;

 

Data Protection

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) (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 and/or third parties that may not be companies in related industries, in addition to the information concerning the contractual service, pursuant to section 107 (1), (2) Telecommunications Act (TKG).
3.  Prewave shall comply with mandatory data protection laws, as amended, when directly applicable to Prewave

 

Place of Performance, Jurisdiction, Applicable Law

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.

 

Final Provisions

1. The entire content of the order form/proposal are 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 this confidentiality obligation.
2. The customer shall have no right of set-off or retention right unless its counterclaims have been found to be valid by a court of law (in a final and non-appealable decision) or are uncontested or have been acknowledged by Prewave in writing.​
3. The customer shall not have the right to assign any claims or rights arising out of the contractual relationship . Prewave shall have the right to assign the contractual relationship and/or all rights and obligations that may be derived from it to a third party. The customer hereby gives its irrevocable consent to such assignment in advance.​
4. 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.​
5. These Terms and Conditions (including order form/proposal and any individual agreements) 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.​
6. 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.​
7. 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.​
8. 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.