Allgemeine Geschäftsbedingungen

1. SUBJECT AND SCOPE OF APPLICATION

These Terms and conditions (the “Terms”) apply to all legal transactions, orders and contracts concluded with Meero Austria GmbH, a company established under the laws of Austria, with offices at Hamerlinggasse 8/4/10, 8010 Graz, registered with the Companies Register (Firmenbuch) at the Regional Court (Landesgericht) of Graz under the number (FN) 452417w,, in relation to the Services (as defined in article 2). The Terms, together with the order(s) and any applicable privacy policy and terms of use, are referred to as the “Agreement”.

Under the Agreement, Meero Austria GmbH is doing business as “Spinic” with its business customers (“Client”). These Terms do not apply to transactions, orders or contracts for services outside the scope of article 2 or vis-à-vis private customers.

Individually Spinic and the Client are referred to as a “Party” and collectively as the “Parties”.

Any terms and conditions of Client shall only apply if they have been expressly accepted by Spinic in writing. Any other acts by Spinic, either explicitly, implicitly or by failing to contest, shall not be considered as a consent to such terms and conditions of Client.

These Terms are available on www.car-cutter.com and can be electronically viewed, printed, downloaded and stored on a storage medium at any time.

2. SERVICES BY Spinic

Spinic has developed software for the automated processing of photos, pictures, images and movies of vehicles offered via an application programming interface (“API”) and a (mobile) web-application (“App”) (together referred to as the “Spinic Software”).

The object of an Agreement with Spinic is the provision of the Spinic Software, as a software-as-a-Service via the API and App (“Services”).

The Client will provide information, logos, drawings, graphics, data, photos, pictures, images, videos or other content to the Services (“Content”) in order for the Content to be processed by the Spinic Software (“Processed Content”).

The Agreement is considered duly fulfilled when the Processed Content is provided for download or via API interface by Spinic, regardless of a download or an integration via API interface by the Client. It being specified that the Processed Content shall be available for thirty (30) days from its creation, Meero has no obligation to store your Content beyond thirty (30) days.

3. TECHNICAL REQUIREMENTS, AVAILABILITY, TECHNICAL FAULTS, APPS

3.1 ​Technical requirements. The Spinic Software is only available electronically on the internet. The Client is responsible to meet all technical requirements (system requirements) necessary for the operation of the Spinic Software and for an operating internet connection at his own expenses. If the technical standards on the Internet or the software change, then the Client must adapt to these changes at his own expenses. Uploaded Content has to meet the file formats required by the software.

3.2 Availability. Spinic undertakes to make the Spinic Software available to the Client 98% of the time, calculated on a one-year basis. Availability is provided if the software can be accessed via an internet connection that meets the system specifications, as described in the specification. Repairing, maintenance and adapting measures for which notification has been given by Spinic (see 3.3. below) as well as fortuitous events or force majeure do not reduce the availability. Higher availability must be agreed separately.

3.3 Repairing, maintenance and adapting measures, tests and misuse. Spinic has the right to temporarily restrict the use or to deactivate of the software and the Services for repairing, maintenance and adapting measures and for tests without giving reasons and compensation. Furthermore, Spinic has the right to temporarily or permanently restrict the use, to deactivate of the software and the Services or to take other measures required by law to avoid, correct or identify misuse due to important reasons (such as unauthorized, improper or fraudulent use, e.g. hacker attacks) without giving reasons, notification and compensation.

3.4 Regulations for Apps. Apps or their underlying technology may not be downloaded to or exported or re-exported: (i) into (or to a resident or national of) Burma (Myanmar), Cuba, Iraq, Iran, Libya, North Korea, Sudan, Syria, or any other country subject to United States embargo; (ii) to anyone on the US Treasury Department; list of Specially Designated Nationals or on the US Commerce Department; Denied Party or Entity List; and (iii) to any prohibited country, person, end-user, or entity specified by US Export Laws. When using an App,the Client is responsible for complying with all trade regulations and both foreign and domestic laws as well as with the usage rules and terms and conditions of the mobile device the App is installed on (e.g. iOS, Android or Microsoft). The Agreement concluded by and between the Client and Spinic does not affect these rules and terms and conditions of the mobile devices

4. OFFERS AND ORDERS

Offers to contract are always provisional and unbinding and shall be regarded as an invitation for the Client to enter into an Agreement with Spinic The conclusion of an Agreement requires an explicit confirmation of acceptance by Spinic by the signing of an Order (as defined below). Electronical (automatic) confirmations of receipt which summarize the content of the quote merely document the receipt of a request for a quote and shall not be deemed as acceptance of Spinic.

Cost estimates of Spinic are not binding, unless expressly confirmed by Spinic as binding in writing.

Spinic has the right to correct errors in calculation or spelling in its cost estimates, offers and quotes.

5. DURATION AND TERMINATION

5.1 Duration. Agreements with Spinic shall enter into force upon signature of a quote (a signed quote shall be referred to as an “Order”) and shall be concluded for a fixed term provided in writing in the Order (“Term”).

The Agreement shall automatically renew at the end of the initial Term for successive periods of the same duration, unless a Party notifies the other Party, in writing, at least fourteen (14) calendar days prior to the end of the initial Term.

5.2 Termination Rights. The Agreement shall expire at the end of the Term stated in the Order. The Parties are not entitled to terminate the Agreement for convenience. For the avoidance of any doubt, if the Client decides nonetheless to terminate the Agreement, or stop its use of the Services, before the end of the Term for convenience, the fees payable for the remaining duration of the Term shall be paid by the Client within fifteen (15) calendar days of such termination.

Irrespective of any statutory termination rights and irrespective of the legal qualification of the Agreement, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if (i) the other Party is in material breach of any of its obligations under the Agreement and if such breach is incapable of remedy, or has not been remedied within thirty (30) days of the written notification from the non-breaching Party or (ii) the other Party becomes insolvent.

In particular, the following occurrences shall be deemed to constitute such causes, which entitle Spinic to terminate the Agreement fully or partially with immediate effect (irrespective of other causes defined in these Terms):

1. default or delay of the Client with performance of Services or payments despite a reminder;
2. circumstances beyond the control of Spinic which prevent Spinic from performing its works and Services for more than three (3) months;
3. Client’s infringements of fundamental provisions of the Agreement or these Terms;
4. Client’s infringement of, attacks on or doubting of/ questioning of Spinic’s intellectual property rights;
5. suspected infringements by the Client of article 9 or other suspected acquisitions of know-how or competing acts of whatever nature by the Client;
6. [only if Client is subcontractor] if the Client no longer fulfills the criteria according to 7.2. or the Client involves unauthorized subcontractors.

5.3 Effect of Termination. Insofar as Spinic terminates the Agreement with immediate effect in accordance with article 5.2, the Clients’ rights to claim performance or compensation are excluded.

In case Spinic terminates the Agreement for reasons 5.2 (a), (c), (d) or (e), the Client shall remain liable to pay any and all fees due under the Agreement until the end of the Term.

6. PERFORMANCE OF SERVICES

6.1 The (art of) performance of Services shall be subject to written agreements only. All information regarding the state, the nature and the quality of works, Services and the result (processed Content) wherever (e.g. in product specifications, prospectuses, catalogues or in other Contents) are not binding, unless expressly confirmed by Spinic as binding in writing or unless a special state nature or quality is expressly agreed by Spinic in writing. Spinic has the right to partial performance of (even total) works, Services and results.

6.2 Services of Spinic are performed at the Client’s risk and expenses. Thus, the Client bears the performance and price risks. In particular, the Client is responsible for the Content it submits to the Spinic Software, as a result:

• any Content (i.e. one image) submitted shall be processed by Spinic and charged to the Client, regardless of whether the image is submitted in multiple copies or has already been processed by the Spinic Software,

• any defective Content submitted, Content submitted by mistake or in a format which cannot be processed properly by the Spinic Software (for example, cutt-off cars, objects/natural elements in front of the cars or directly on the cars etc.) shall be charged to the Client.

6.3 In the event that the Client uses a Dealer Management System (DMS), or any other third party Enterprise Resource Planning (ERP), who is or becomes a Client of Spinic, and if the Client requires that the Processed Content be delivered on its DMS or ERP interface, the Client hereby authorizes Spinic to transfer the Processed Content and any associated data to the third-party DMS and ERP for the exclusive purpose of delivering the Processed Content on the Client’s DMS/ERP interface (via Spinic and the DMS/ERP’s chosen method of interoperability). Spinic is not responsible for the availability, security, integrity and confidentiality of the Processed Content and any associated data once it has been transferred to the DMS/ERP’s systems. Such responsibility lies with the DMS/ERP and it is the terms and conditions accepted by the Client on the DMS/ERP’s platform that shall apply should such a situation arise.

7. INVOLVEMENT OF SUBCONTRACTORS

7.1 Right to involve subcontractors. Spinic is entitled to involve subcontractors as it deems appropriate.

7.2 Regulations for subcontractors. These Terms shall also apply for subcontractors of Spinic. However, this section shall only apply for subcontractors and does not constitute rights and obligations for and against non-subcontractual Clients of Spinic.

Subcontractors of Spinic shall meet all conditions required or criteria set out by Spinic for the proper and professional performance of the works and Services ordered with regard to reliability, suitability to pursue the professional activity and the technical, economical / financial capacity to perform the Agreement. These conditions or criteria shall be met for the entire period of the Agreement. Spinic is entitled to demand evidence from the subcontractor at any time to prove whether these conditions or criteria are met. If these conditions or criteria are not met any more for whatever reasons Spinic may terminate the Agreement with immediate effect and without any compensation to the subcontractor.

In the performance of the Agreement the subcontractor shall fully comply with applicable obligations in the fields of labor, social and environmental law as well as obligations in collective agreements. Additionally, the subcontractor shall safeguard the right of employees posted for the purpose of providing cross-border Services to a salary laid down by statute or collective agreement. In absence of mandatory fixed or minimum salary rates the subcontractor shall pay an adequate and local comparative salary to its employees. Except mere minor infringements of the mentioned obligations by the subcontractor and subject to other statutory and contractual rights, Spinic may terminate the Agreement with immediate effect and without any compensation to the subcontractor.

The subcontractor may only involve sub-subcontractors that meet all conditions required or criteria set out by Spinic for the proper and professional performance of the works and Services ordered with regard to reliability, technical, economical / financial capacity to perform the Agreement and suitability to pursue its professional activity with the prior written consent of Spinic. The subcontractor shall verifiably inform Spinic of any share of the Agreement it may intend to subcontract to sub-subcontractors, any proposed sub-subcontractors and any proposed changes of authorized sub-subcontractors along with evidence to prove whether the proposed sub-subcontractor meets the mentioned conditions or criteria. This information shall be submitted in due time before involving the sub-subcontractor so as to enable Spinic to prove whether the proposed sub-subcontractor meets the mentioned conditions or criteria before involving the sub-subcontractor. Spinic is entitled to reject the involvement of a sub-subcontractor without justification. If Spinic rejects a sub-subcontractor, the subcontractor may inform Spinic of any other proposed sub- subcontractor.

Spinic may terminate the Agreement with immediate effect and without any compensation to the subcontractor if the subcontractor involves any unauthorized (without consent of Spinic) sub-subcontractor. Subcontractor shall be liable without fault for damages, (court and attorney) fees and costs and administrative penalties (in particular, according to the Austrian laws to combat wage and social dumping) occurring due to an unauthorized (without consent of Spinic) involvement of a sub-subcontractor. Further legal claims shall remain unaffected.

The involvement of sub-subcontractors does not affect or restrict subcontractor’s obligations to warranty and liability. The subcontractor shall ensure and be solely responsible for the reliability, technical, economical / financial capacity to perform the contract and suitability to pursue its professional activity and for the proper and professional performance of the works and Services ordered according to the applicable laws and regulations, the contract and these terms and condition by itself as well as by its involved sub-subcontractors and by further subcontractors down the subcontracting chain.

8. SUBSCRIPTIONS, VOLUMES, PRICES, INVOICES AND PAYMENT TERMS

8.1 Implementation Fees. Onboarding of the Client may be subject to implementation fees as provided in the Order.

8.2 Subscriptions. To use the Spinic Software and benefit from the Services, the Client must acquire a subscription (“Subscription”). Subscription fees provided in the Order are payable in full and for the entire Term, regardless of the Client’s actual usage or unilateral termination for convenience (see 5.2).

The Client’s obligation to pay the full Subscription fees arises on the day the Order Form is signed by the Client. Therefore, the Client agrees that it is discharged of its obligation to pay the full Subscription fees if, and only if, the Client does not complete the client onboarding process within four (4) weeks for reasons exclusively attributable to Spinic.

8.3 Minimum Volumes. Clients may commit to a minimum volume of images or cars to process through the Spinic Software during the Term (“Minimum Volume”). Whenever the Client commits to a Minimum Volume, the Client shall be (i) obligated to consume the Minimum Volume during the Term and (ii) obligated to pay for the fees corresponding to the processing of the Minimum Volume as specified in the Order (“Minimum Volume Fees”), regardless of the Client’s actual consumption of the Minimum Volume or unilateral termination for convenience (see 5.2).

In the event the Client reaches the Minimum Volume before the end of the Term, the images or cars processed beyond the Minimum Volume shall be charged at their unit price based on actual usage.

In the event the Client does not reach the Minimum Volume at expiry of the Term, (i) the Client shall no longer be entitled to consume the Minimum Volume and (ii) Spinic shall send the Client an invoice reflecting the outstanding amount of the total Minimum Volume Fees and a penalty equal to twenty percent (20%) of the outstanding amount.

For the avoidance of doubt, the Client shall not be authorized to consume any of the committed Minimum Volume after the Term.

8.4 Prices. All prices are listed in Euro (EUR) or Dollar (USD) and exclusive of any tax. Costs for transfer, fees, taxes, customs and other duties shall be paid by Client. Client hereby indemnifies Spinic in this respect. Spinic reserves the right to unilaterally adjust its prices as required due to changes of calculations or prices of manufacturers, suppliers or subcontractors of whatever reason or in case the economical assumptions underlying the business relationship with Client as made by Spinic turn out to be inaccurate.

8.5 Payment Terms. Spinic is entitled to issue and so submit invoices electronically via Clients’ email address. Unless expressly otherwise agreed invoices shall become due for payment immediately upon (physically or electronically) delivery of the invoice.

Payment transaction costs (e.g. cross-border or international transfer costs) shall be paid by Client. Discounts by Spinic shall only be granted in writing. Spinic is entitled to down payment invoices and part payment invoices at any time.

Payments shall be made to Spinic only, not to agents or distributors. Payment orders will be accepted only on account of performance but not instead of performance.

The Client is solely responsible for the payment of undisputed invoices and such payment constitutes Client’s essential obligation under the Agreement. The Client must pay the amounts indicated in the invoice(s) issued by Spinic within thirty (30) days of the date of the invoice. In case of delay or default in payment Spinic will charge statutory default interest.

In the event the Client fails to pay any invoice after multiple attempts from Spinic to collect payment from the Client, without prejudice to the default interests and any claim or recourse Spinic may have against the Client, Spinic shall have the discretionary choice to (i) terminate the Agreement in accordance with article 5.2 or (ii) suspend the Services in accordance with article 15.11 “Rights of retention, of offset and of withhold performance or payments” and without any liability to Spinic and without prejudice to its right to compensation for any damage caused – the Services shall be reactivated as soon as the full payment of the outstanding invoices are made in full.

Should Spinic decide to suspend the Services pursuant to the above, the Client acknowledges that the duration of the Agreement shall not be extended by the amount of time the Services were suspended and that any amounts due under the Agreement remain payable in full, without any deduction prorated to the amount of time the Services were suspended.

9. INTELLECTUAL PROPERTY RIGHTS

9.1 Ownership and Intellectual Property of Spinic Software and Associated Elements

9.1.1 Ownership

Spinic and/or its licensors retain all rights, title, and interest (including any intellectual property rights therein) in and to the Spinic Software and the Services, including their “look and feel” (graphics, logos, texts etc.), any proprietary content (backgrounds etc.), algorithms, technologies, artificial intelligence, information and other materials made available to the Client through the Services (“Associated Items”).

The Spinic Software, the Services and Associated Items are original works of authorship protected, amongst others by copyright (notably protected by the French Intellectual Property Code and the Austrian Copyright Act (“UrhG”)) and/or as trade secrets (“Spinic IP”) of which Spinic is the exclusive owner.

The Client expressly acknowledges that the Agreement does not grant the Client any rights on the Spinic IP, other than the license rights expressly granted in article 9.1.2 below.

The Client refrains from infringing any of Spinic’s intellectual property and trade secrets in any way whatsoever and, more generally, agrees not to take any action(s) inconsistent with Spinic’s ownership and intellectual property interests.

Spinic retains all rights, title, and interest in and to the Application and any Updates it may make available to the Client under this Agreement.

Any rights not expressly granted under the Agreement are reserved by Spinic.

9.1.2 License

During the Term of the Agreement, Spinic grants the Client a personal, non-exclusive, non-transferable and non-sublicensable, revocable, worldwide, right to use Spinic Software, the Services and Associated Items in strict compliance with the Agreement and for the sole purpose of its business activity, strictly excluding any other purpose.

The Client will not:

• use the Services in a way that violates these Terms and/or applicable laws and regulations;
• use the Services in a way that infringes, misappropriates or otherwise violates Spinic’s right or that of any third parties;
• send us any personal information of children under 13 or the applicable age of digital consent or allow minors to use our Services without consent from their parent or guardian;

• remove or alter any copyright, trademark, confidentiality or other proprietary notices, designations, or marks accessible through the Spinic Software/Services;
• access (or attempt to access) any non-public areas of the Spinic Software/Services;
• interfere with any access or use restrictions, or prevent (or attempt to prevent) another user from accessing or using the Spinic Software/Services, or disrupt the Spinic Software/Services;
• use any robot, spider, or other automated means to access or scan the Spinic Software/Services, frame or mirror any part of the Spinic Software/Services, or create a competitive business to the Services;
• use any data mining or data gathering or extraction methods, or otherwise collect information about the Spinic Software/Services, and/or its visitors and/or users;
• collect or store personal information about any person or entity;
• send viruses, worms, malware, ransomware, junk email, spam, chain letters, phishing emails, unsolicited messages, promotions or advertisements of any kind and for any purpose;
• attempt to probe, scan, compromise or test the vulnerability of the Spinic Software/Services, system or network or breach any security or authentication;
• reverse engineer or decompile any (part) of the Spinic Software/Services, specifically in view of creating a similar service;
• broadcast, distribute, resell, sublicence, rent, lease, offer for free or otherwise commercialize any the Spinic Software/Services, offering, product and/or feature;
• use the Spinic Software/Services for any illegal or unauthorized purpose;
• make any interfacing or integration with other services or software;
• adapt or modify the Spinic Software/Services.

9.2 Ownership and Intellectual Property of Content and Processed Content

9.2.1 Content

Nothing in the Agreement, assigns or otherwise transfers any intellectual property rights owned by the Client to Spinic, save as provided in the Agreement.

The Client remains the exclusive owner of the Content.

By uploading or processing the Content to, or through, the Spinic Software and using the Services in connection with the Content, the Client grants Spinic a license to access, use, host, case, store, reproduce, transmit, display, publish, distribute, process and to transfer Content to subcontractors and other business Clients, and modify the Content, but solely as required to operate, improve (including for machine learning and research purposes), maintain, promote, market and provide the Spinic Software and the Services and ensure their safety. The Client agrees that these rights and licenses are royalty-free, transferable, sublicensable, worldwide and irrevocable for the duration of legal protection of the intellectual property rights in the Content in any relevant jurisdiction.

Accordingly, the Client warrants that the Client:

• has all necessary ownership or intellectual property rights (such as copyright, exploitation rights, trademark rights, licenses or other industrial property rights) for processing the Content transferred, left or revealed to Spinic;
• the Content transferred, left or revealed to Spinic is free of any third party rights which restrict or prohibit the using, changing, processing or exploiting by Spinic and does not infringe any third-party rights or any laws; and
• the granting of rights according to this article 9.2.1 to Spinic is covered by its ownership or intellectual property rights.
  

9.2.2 Processed Content

The Processed Content and all associated intellectual property rights, are the material and intellectual property of the Client. Nonetheless, the Client hereby undertakes not to use the Processed Content for the following purposes: research & development of artificial intelligence models that compete with the Spinic Software and/or the Services, military use, pornography, gambling/betting, terrorism, creation of “fake news”.

The Client hereby grants Spinic a license to access, use, host, case, store, reproduce, transmit, display, publish, distribute, process and to transfer Processed Content to subcontractors and other business Clients, and modify the Processed Content, but solely as required to operate, improve (including for machine learning and research purposes), maintain, promote, market and provide the Spinic Software and the Services and ensure their safety. The Client agrees that these rights and licenses are royalty-free, transferable, sublicensable, worldwide and irrevocable for the duration of legal protection of the intellectual property rights in the Processed Content in any relevant jurisdiction.

The Client shall indemnify and hold Spinic harmless without fault against any third-party claims (including court and attorney’s fees and costs) asserted or threatened against Spinic due to an alleged infringement of this article 9 by the Client.

9.3 Distinctive Signs. During the entire Term and for two (2) years after its expiry, the Client grants Spinic the right to include the Client’s trademark, trade name, logo, product and service names, biographical information, interviews and success stories on the Spinic (https://www.car-cutter.com/) and Meero (https://www.meero.com/) websites, social media, in press releases, promotional and commercial communications/materials (whatever the medium) or in their client lists.

In any event, the Parties grant each other the right to use the other’s trademarks, trade name and/or logo as a commercial reference on their website, social media, in press releases, promotional and commercial communications/materials (whatever the medium).

These rights are granted royalty-free, throughout the world, for the entire Term and two (2) years after expiry.

10. FEEDBACK

During the course of the Agreement, Spinic may requests the Client’s input regarding the Spinic Software and/or the Services, including, without limitation, comments or suggestions in relation to the possible creation of new features/functionalities, modification, correction, improvement or enhancement of the Spinic Software and/or the Services and all associated offerings, or input as to whether the Client believes Spinic’s development direction is consistent with their commercial business and needs, the technology and the like (collectively “Feedback”).

If the Client submits Feedback, the Client grants Spinic a non-exclusive, worldwide, royalty-free, irrevocable and transferable license to use, commercialize, import, reproduce, incorporate, publicly display, distribute, modify, or otherwise fully exploit the Feedback internally and externally, without any obligation or restriction based on intellectual property rights or otherwise.

11. CONFIDENTIALITY

The Agreement and any information, documents or data in particular commercial, technical, contractual and/or financial (including pricing), communicated or disclosed to the Parties, in any form whatsoever, in writing or orally, relating to the conclusion, performance and continuations of the Agreement, any Spinic business/activity, Spinic Services, other services and/or product or other technology developed by Spinic are confidential and constitute a trade secret (the “Confidential Information”).

Each Party shall ensure that all Confidential Information that it receives from the other is disclosed only to those affiliates, employees, officers, consultants, representatives and agents (“Representatives”) that need to know such information in connection with the Agreement and who are bound by fiduciary or contractual obligations to keep the Confidential Information confidential, and to no other party. Each Party shall clearly instruct such Representatives not to violate the restrictions contained herein, shall take appropriate steps to ensure that these obligations are fulfilled and shall remain liable for any breach of such restrictions by such Representatives. Except as expressly set forth above, each Party agrees not to disclose said Confidential Information that it has received from the other Party to any other third party unless it has the prior written approval of the disclosing Party and the person/entity to whom the Confidential Information is bound by a confidentiality obligation with terms no less stringent that those set forth in this Agreement and use the Confidential Information for the sole and exclusive purpose of performing the Contract and its consequences.

Notwithstanding the foregoing, one Party may disclose Confidential Information:

• when such disclosure is necessary for the performance of the Agreement or its consequences;

• that are already in the public domain or are available to the public other than through the effect of an action, omission, breach of the Agreement or any other undertaking; or

• in the event that such disclosure is required by a competent authority pursuant to a binding regulation.

Confidential Information and any material or immaterial contribution of any kind by a Party for the performance of the Agreement shall remain its sole and exclusive property.

This Confidentiality undertaking shall be effective for the entire duration of the Agreement and a period of five (5) years from the termination of the Agreement for any reason whatsoever, including expiry.

Finally, upon termination or expiry of this Agreement, the Customer will, at Spinic’s discretionary choice, promptly destroy and/or return any element of Confidential Information that may have been provided to it by Spinic, along with all the copies thereof.

12. WARRANTY AND LIABILITY

To the maximum extent permitted by applicable law, Spinic does not make any warranty of any kind, whether express, implied, statutory or otherwise (including, without limitation, warranties of merchantability, fitness for a particular use, and noninfringement).

Spinic does not warrant and shall not be liable for the speed and the results of the software (Processed Content) as well as for damages or loss of data. If, nevertheless, a warranty claim should exist, the warranty period is six months, only major defects shall entitle the Client to refuse acceptance and the Client shall bear the burden of proof for relevant defects of works and Services of Spinic over the entire warranty period.

In addition, Spinics’ liability – except for damages to the health of a person and damages on the basis of mandatory damage claims according to any Product Liability Acts – is excluded unless the damage has been caused intentionally or through blatant gross negligence. Spinics’ liability for pure financial losses, compensation for consequential damage, immaterial or indirect damage, damages from third-party claims, loss of profit and fortuitous events or force majeure (see 14.) is excluded. Spinic is not liable for damages caused by persons who are not assigned to Spinic according to mandatory law. Insofar as Spinics’ liability is not excluded, the Client shall bear the burden of proof for fault or neglect of Spinic and its persons assigned by mandatory law and limited to the sum insured that is available for the specific case.

Spinic shall not be liable for Content transferred, left or revealed by the Client or on behalf of the Client and for the using, exploiting and exploitability of its works, Services and results by the Client as well as for legal consequences that may arise for the Client and third parties.

The exclusion and limitation of liability also applies to the organs and their members, representatives, leaders, employees, attributable assistants and subcontractors.

Except for (i) a Party’s gross negligence or willful misconduct or (ii) a Party’s indemnification obligations under this Agreement, each Party’s total liability under the Agreement will not exceed the greater of (a) total amount you have paid to us in the twelve (12) months immediately prior to the event giving rise to liability or (b) five hundred (500) euros. The foregoing limitations will apply to the maximum extent permitted under applicable law.

Any action for damages against Spinic has to be asserted within a term of preclusion of six (6) months after Client has gained knowledge of the damage, but not later than three (3) years after the occurrence of the (primary) loss following the incident upon which the claim is based. This does not apply for damages to the health of a person.

13. DUTIES OF CLIENT

The Client is obliged to keep all access data to the Spinic Software (e.g. passwords, API-keys) safe and confidential.

The Client is obliged to refrain from any actions that compromise the functionality or operation of the software or the Services. In particular, any actions by the Client that scan or test vulnerabilities of the software, bypass security or access systems of the software or the Services or integrate malware into the software or the Services are prohibited.

14. FORCE MAJEURE

The Spinic is not responsible for its non-performance due to fortuitous events or force majeure, such as natural occurrences, war, terrorism, strikes, riots, breakdown of the energy or Internet connection, technical defects, epidemics, pandemics or sovereign acts or measures. If the performance is or becomes temporarily impossible due to such circumstances agreed performance limits shall be extended for the duration of the interference.

15. MISCELLANEOUS

15.1 Assignment, legal succession. The Client may not transfer or assign any rights or claims to third parties unless prior written permission of Spinic except the Client is grossly disadvantaged. The Client shall notify Spinic immediately of an assignment. Until receipt of a verifiable notification of assignment Spinic is entitled to make all Services and payments with debt-discharging effect to the Client. Spinic is unrestrictedly entitled to transfer or assign rights or claims to third parties (such as factoring companies). The Client expressly agrees its consent to such an assignment by signing an Agreement with Spinic.

Subject to Spinics’ right of approval the Client shall assign an Agreement concluded with Spinic and its rights and obligations unrestricted and unlimited to any sole or universal legal successors including the obligation to impose the afore-mentioned assignment obligation on its legal successors. The Client may transfer or assign an Agreement concluded with Spinic and its rights and obligations only with prior written consent of Spinic. However, Spinic may unrestrictedly transfer or assign an Agreement and its rights and obligations fully or partially to any sole or universal legal successors. The Client expressly agrees its consent to such an assignment by signing an Agreement with Spinic.

15.2 Waiver of challenging. Any Clients’ rights of challenging, rescission or contestation of an Agreement concluded with Spinic (including these Terms) for the purpose of adaptation or cancellation for reasons of error, lacking or ceased basis of the contract, reduction by more than half (laesio enormis) or fully or partially invalidity is expressly excluded.

15.3 Governing law, venue. Any Agreement concluded by and between Spinic and the Client (including these Terms as well as the issues of its valid conclusion and its pre- and post-contractual effects) as well as any non-contractual obligations by and between Spinic (Meero SAS or Meero Austria GmbH, depending on the contracting entity) and the Client are governed exclusively by the substantive Laws (excluding its conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods) of Austria.

Any claim, contractual or non contractual arising out of or in connection with the Agreement, by and between Spinic and the Client, shall be settled by the competent court at the registered address of Meero Austria GmbH in 8010 Graz, Austria.

Spinic, however, is entitled to alternatively lodge its claims at any other legal place of jurisdiction. Disputes of whatever nature (such as disputes regarding the performance or renumeration) do not entitle the Client to temporarily or permanently suspend, withhold or cease its due Services or payments.

15.4 Contractual Structure, Alterations and Amendments, Changes to the Terms. These Terms and the Order(s) as well as any applicable privacy policy and terms of use (published on the API and/or App) shall comprise the Agreement between the Parties and shall supersede any prior or contemporaneous agreements, declarations or other legal acts in whatsoever form. Subsidiary oral agreements to contracts with Spinic are not valid. In the event of any inconsistency between these Terms and the documents referenced or incorporated into this Agreement, the specific terms of the documents referenced or incorporated into this Agreement shall prevail.

Alterations and amendments to an Agreement concluded with Spinic as well as to subsidiary agreements shall be made only in writing. This obligation shall also apply to the agreed written-form requirement itself.

Spinic may change these Terms from time to time. Laws, regulations and industry standards evolve, which may make those changes necessary or Spinic may make changes to its Services or business. Spinic will post the amended versions of these Terms to this page which we encourage the Client to review to stay informed. Should the amendments materially alter the rights and obligations under these Terms, Spinic will provide additional notice, such as via email or through the Services. Amendments shall not apply during the then current Term of an Agreement but shall apply to the Agreement should it renew automatically after the initial Term.

15.5 Severability Clause. If any provision of an Agreement concluded with Spinic (including these Terms) should be fully or partially void, ineffective or unenforceable, the remaining provisions shall not be affected thereby. The void, ineffective or unenforceable provisions shall be replaced by valid, effective and enforceable provisions in writing which in their economic result and purpose will be similar to the replaced ones as far as possible.

15.6 Joint obligation and liability. If a plurality of persons act as the Client vis-à-vis Spinic (such as joint ventures or consortiums) the persons of the Client shall be jointly and severally liable for the performance of the obligations and duties of the Client and for any damage caused.

15.7 Linguistic Deviations. If these Terms are made available in other languages, Spinic does not assume any warranty and liability for the (outsourced) translation into other languages. In case of linguistic deviations of the versions in other languages than English, the English version shall take precedence.

15.8 Power of representation. Any person signing a contract with Spinic declares with further personal liability to compensation for damage that he or she is entitled to sign the contract on behalf of the Client and to conclude the contract with binding effect for the Client.

15.9 Waivers and acknowledgements. Unless expressly declared in writing Acts or omissions of Spinic shall never be deemed as a waiver or as a (constitutive or declaratory) acknowledgment of obligations or duties of Spinic. However, the Client constitutively acknowledges the proper and duly performance of the works and Services of Spinic as stipulated and without any defects by partial or total payment of invoices of Spinic.

15.10 Good Faith. The Parties undertake to behave at all times towards each other as loyal co-contractors and to perform their obligations and exercise their rights in good faith.

15.11 Rights of retention, of offset and of withhold performance or payments. The Client is not entitled to retention, to offset claims against Spinic or to withhold performance or payments. Statutory rights of the Client to retention, to offset claims or to withhold performance or payments are excluded. However, Spinic shall have an unrestricted right to retention or to withhold performance or payments as well as a right to suspend performance of all current and future works, Services or payments if the Client does not duly fulfill its obligations or payments fully or partially for whatever reason or in case of doubts that the Client will not be able or willing to duly fulfill its obligations or payments for whatever reason, without any liability to Spinic. Therefore, Spinic is entitled at any time and without justification to demand prepayment or an adequate security from the Client

The Client is not entitled to offset claims of Spinic with any kind of counterclaims. However, Spinic is entitled to offset claims of the Client with counterclaims of whatever nature.