AGB

Version: Oktober 23, 2023

  1. General
    1. The following General Terms and Conditions ("Terms") apply to all deliveries of our products and applications, services, as well as IT maintenance or services (hereinafter "Services") and all business transactions of datAInsights GmbH (hereinafter "datAInsights"), unless otherwise agreed in writing. By ordering or commissioning a service, the client (hereinafter "Customer") agrees to these Terms. These Terms shall constitute a material part of all future business relationships, deliveries and/or Services, even if they are not explicitly mentioned or referred to.
    2. Furthermore, these Terms form an integral part of any offer or specific licensing, maintenance, or service contract that is separately agreed upon in writing between the Customer and datAInsights. The Terms, the offer or the cost estimate, and the order/commission, including any documents referenced therein, together constitute the contract (hereinafter "Contract"). The Terms apply unconditionally to all additional services or other modifications or changes to an order.
    3. Where available, mutual rights and obligations arise from the following documents and shall apply in the following order of precedence: a license, maintenance, or service contract or any other individually concluded agreement (e.g., a non-disclosure agreement) possibly concluded separately between datAInsights and the Customer, the offer or the cost estimate including all addenda, a data processing agreement according to Art 28 GDPR, insofar as applicable, these Terms, any other documents incorporated by reference but not included as addenda in an offer, cost estimate or in an individually concluded agreement, as well as in these Terms. In the event of a conflict between these principles or other ambiguities regarding the priority of application or the interpretation of these principles and individual provisions thereof, the order listed shall apply.
    4. datAInsights reserves the right to amend or supplement the Terms and Conditions at any time. The amended Terms and Conditions do not apply to ongoing agreements unless both parties agree in writing on the application of the new Terms to existing contractual relationships, whereby text form and therefore also email form shall suffice for this purpose. Any contract extensions are subject to the Terms in the version valid at the time of the extension. The version of the Terms valid at the time of contract conclusion always applies. datAInsights concludes Contract only on the basis of these Terms.
    5. Any general terms and conditions or other conditions provided by a Customer shall not constitute a part of a Contract unless they have been expressly acknowledged by datAInsights in writing. This especially applies to attached or otherwise accessible or available terms, such as general purchasing conditions or other referenced terms of the Customer.
    6. Employees of datAInsights are not authorized to make agreements that deviate from these Terms. Such deviating agreements must be confirmed in writing by datAInsights in order to be valid.
    7. In these Terms, the following definitions apply, unless a clear deviation arises from the subsequent text, especially from the meaning and purpose of a formulation:
      Machine LearningShort for ML, refers to software that can adjust its internal parameters based on data through training to perform specific tasks without explicit programming. ML often delivers results in the form of probabilities.
      Artificial Intelligence (or short AI) means a software or program that can solve tasks on its own.
      Knowledge Graphs A Knowledge Graph is a data structure that represents information in the form of entities and the relationships between these entities.
      Enterprise AI A combination of various artificial intelligence software.
      AI-Services Refers to the Services to be provided by datAInsights, as described in point 1.1.
      Target Metric Defined value or parameter regarding a defined set of input values, corresponding to the project goal to be achieved.
      Recognition probability = AI output Refers to the calculated value of the AI Services based on the target metric, and therefore corresponds to the result of the AI Services, which allows a comparison with the target metric.
  2. Orders and offers
    1. All documents designated by datAInsights as ‘offers’, ‘cost estimates’ or the like are fundamentally subject to change and therefore non-binding and are to be understood as an invitation for the Customer to make an offer. They do not, however, represent an offer for the conclusion of a Contract.
    2. The offers from datAInsights are made with non-binding delivery dates and delivery periods. Binding date arrangements must be recorded in writing or confirmed in writing by datAInsights.
    3. Orders or purchases from the Customer only become binding towards datAInsights once they are confirmed in writing. Until this point, no Contracts of any kind come into effect.
    4. Any amendments or adjustments to an Agreement made by the Customer, such as cancellations in particular, are only possible by mutual agreement. Any costs that may result due to such amendments, adjustments or cancellations shall be borne by the Customer.
    5. Information describing the performance characteristics in all documents provided by datAInsights is purely for informational purposes and is considered guaranteed only if stipulated in a separate contractual agreement between both parties.
  3. Provision of the AI Services
    1. The subject of these Terms is the provision of AI Services and software, as well as consulting Services by datAInsights, as detailed in the offer. The scope of Services is thus determined by the content of the offer or cost estimate sent by datAInsights to the Customer, the written confirmation of the order by the Customer to datAInsights, or any other agreement made with the Customer.
    2. The AI Services and the remuneration in point 7 do not cover datAInsights continuously fine-tuning the algorithms, training the models, adjusting the training process, and revising the training instructions. If the Customer desires such services, they must be separately commissioned to datAInsights and will be billed separately based on datAInsights' hourly rate applicable at that time. The Customer does not have a claim to a specific or more accurate AI output as a result.
    3. No personal data is used for the AI Services. Since there is no claim by any affected person to an explanation of the involved logic and the decision-making process, the Customer is also not entitled to receive the technical specification including the logic of the AI Services.
    4. It is noted that the data pipeline (hardware and software) will not be transferred to the Customer and, therefore, neither the source code nor the developer documentation are subjects of the Contract.
    5. It is further noted that it is possible that open-source software and libraries (collectively "Open Source Products") may be used for the AI Services. No license fee for the use of the Open Source Products will be charged by datAInsights. The Customer acknowledges that datAInsights is not liable for any defects in the Open Source Products, nor does it assume any other liability concerning the Open Source Products. Regarding these components of the AI Services, the Customer accepts the respective specific open-source license terms, which will be made available electronically or as a copy by datAInsights upon request.
  4. Scope of use
    1. For the duration of the project, the Customer is granted the non-exclusive and non-transferable right to use the AI Services by utilizing the training and production data generated from the Customer's data sources for the training of the neural network and the creation of the Knowledge Graph. In addition, the output resulting from this training process and the use of the Knowledge Graph is generated to answer specific questions within the framework of the defined target metric.
    2. Access to and use of the AI output is provided through a standardized API, which is supplied by datAInsights
  5. Copyright and Usage Rights
    1. datAInsights holds all rights, including all copyrights and other intellectual property rights as well as exploitation rights, to the provided AI Services, including all algorithms, ML software, training and production data (see point 6.), training instructions, software components, and all further developments, evolutions, or iterations, as well as all copies thereof. datAInsights does not develop an AI solution (which is a specific workflow supported by AI) for the Customer. Therefore, datAInsights only grants the Customer a non-exclusive right to use and access the AI Services.
    2. Within the framework of granting these usage rights, datAInsights remains entitled, either on its own or through commissioned third parties, to evolve algorithms during the training process as per point 3.2., as well as to modify or further develop the AI Services through training and prepare them for new tasks. No prior consent from the Customer is required for this. Any resulting protectable works solely belong to datAInsights.
  6. Data Sovereignty
    1. datAInsights is the holder of the ML Software, Knowledge Graphs, input values, weights, training instructions, and insights from training and has sole rights to all of these. Both the training data and production data, as well as Knowledge Graph structures created by datAInsights, solely belong to datAInsights. It is explicitly stated that these only exist until they are activated within an artificial neuron. Therefore, there is no permanent storage of these training and production data at datAInsights. datAInsights alone is authorized to manage and process this training and production data, especially to use them for the training and evolution of AI Services, to apply them for the weights within the neural network, derive new results and conclusions from them, and adjust the algorithms. The Customer has no right to access these training and production data or to get a copy thereof.
    2. datAInsights is also the holder of any potential rights, including all copyrights, exploitation rights, and other intellectual property rights, related to such training and production data, results, links, and all other information resulting from the processing of this data in the training process. The Customer also has no claim to compensation or a settlement for the use of the data sources underlying the data.
    3. The AI output belongs solely to the Customer. However, upon their request, the Customer must grant datAInsights a non-exclusive, unlimited in time and content usage right to it.
  7. Payment
    1. The details regarding the amount of the fee components, as well as the payment conditions, are based on the specifications in the offer or a price list, as long as datAInsights refers to these.
    2. For the fee, stability of value is explicitly agreed upon. The Consumer Price Index 2023 (base: 2023 = 100), which is announced monthly by Statistics Austria, serves as the measure for calculating the value stability. The starting point for this value assurance clause is the index number calculated for January 2023. Fluctuations up to 5% upwards or downwards are disregarded. This margin is recalculated each time the respective applicable range is exceeded either upwards or downwards. In doing so, the first index number outside the respective applicable margin always forms the basis for calculating the new margin.
  8. Customer’s Obligation
    1. The Customer is obliged to support datAInsights in the provision of Services to the best of their knowledge and belief and to create all the necessary prerequisites for the proper contractual performance. The Customer will provide datAInsights on time with all the necessary, correct, and binding documents, data, and information required for the provision of AI Services and will ensure access to the data sources and access thereto by datAInsights and its employees.
    2. The Customer will fulfill all their duties of cooperation in a timely manner, ensuring that datAInsights is not hindered in providing the Services. The provision of AI output by datAInsights presupposes the complete and timely fulfillment of all cooperation duties and other contractual obligations by the Customer, which the Customer expressly acknowledges.
    3. If the Customer does not fulfill their cooperation duties by the agreed dates or to the intended extent, the Services provided by datAInsights, despite possible limitations, are still deemed to be rendered in accordance with the Contract. The Customer will compensate datAInsights separately for any additional expenses and/or costs incurred as a result. Furthermore, datAInsights is entitled to terminate the Contract in case of a breach of the cooperation duties according to point 8.
  9. Availability of AI-Services
    1. datAInsights strives to continuously provide and maintain access to the AI Services - except for necessary maintenance times (point 9.2) - according to the existing technical, economic, operational, and organizational possibilities. datAInsights ensures an availability of the AI Services of 99 % on average per year, with availability referring only to the delivery of AI-Output according to the target metric. The use of AI Services can be impossible or restricted, particularly due to system-related reasons, disruptions in the communication network, security measures, capacities, maintenance, and force majeure circumstances. Such events and generally impairments due to influences outside of datAInsights' control are not taken into account when calculating availability. Due to the nature of the internet, data transmission times and quality depend on internet usage. Any claims for damages and warranties of any kind are excluded from this.
    2. datAInsights is entitled to temporarily restrict or interrupt the AI Services for important reasons, such as service and maintenance work, or if this is necessary in view of capacity limits, the security or integrity of the server, or to carry out other technical measures.
    3. The unavailability of AI Services according to points 9.1. and 9.2. does not establish any liability on the part of datAInsights towards the Customer for any costs, damages, or other disadvantages that may arise.
  10. Warranty
    1. datAInsights guarantees that it provides the AI Services in all essential aspects, as described in these Terms, in a professional manner and with the appropriate expertise, whereby it shall be taken into account that neither uninterrupted and error-free operation nor a specific recognition accuracy can be guaranteed.
    2. datAInsights does not make any warranties beyond what is stated in this clause, and any potentially further legal warranty promises are explicitly excluded, in particular, but not limited to, the warranty for freedom from defects, for a specific operability, for certain results, or for the suitability and appropriateness of the AI output for a particular purpose. The Customer also has no claim to the use and function of the AI Services according to a specific state of the art.
    3. The Customer is aware that the AI output is provided based on the internet, and the Customer alone is responsible for the functional suitability of the respective internet or VPN access, and in particular for associated failures, delays, abuses, or losses. Therefore, datAInsights only needs to provide the link to access the AI output, whether it is or can be actually retrieved by the Customer is solely the Customer's risk.
    4. Every Customer who takes actions based on the AI output does so at their own risk. Therefore, it is solely the responsibility of the Customer to assess the impact of the AI output, its insights, and the resulting actions on the performance and business relationships of the Customer's company. datAInsights is not liable, in particular, for the suitability of the AI output for a particular purpose or a particular success. Therefore, any claims against datAInsights related to the information obtained through the AI Services are excluded.
  11. Liability
    1. datAInsights is liable – except for personal injuries – only in cases of intent or gross negligence. Any liability for slight negligence, lost profits, missed savings, compensation for consequential damages, indirect damages, as well as damages arising from third-party claims are excluded for businesses as defined in § 1 UGB, unless mandatory law provides otherwise.
    2. datAInsights does not assume liability for the accuracy, completeness, or timely transmission of the AI output. datAInsights is not liable for losses or damages resulting from errors or delays in the transmission of the content, regardless of the cause of such errors or delays.
    3. datAInsights is not liable for damages caused by abusive or improper use of the AI Services, or by the Customer or a user's disregard of the due diligence obligations set out in these Terms. The liability for damages resulting from a third party gaining knowledge of users' personal data due to the negligence of the Customer or user is also excluded.
  12. Contract Duration and Termination
    1. The term for using the AI Services (usage period) is 1 year and begins with the activation or download of the software, followed by the activation of the license key. The usage period automatically extends by another year unless it is terminated in writing or by email at least 2 months before the end of the current usage period. The right to terminate for just cause remains unaffected
    2. The software's operability during the usage period is ensured by regularly checking the license key. The Customer is obligated to carry out or permit corresponding checks. The software will no longer be operable if the validity check fails, of which the Customer will be immediately informed. For the subsequent period, the software will run under a new license key, and the previous one will be deactivated.
    3. Without prejudice to its other rights and remedies available to it under or in connection with these Terms, datAInsights is entitled to terminate the Contract extraordinarily and with immediate effect by a written notice:
      1. if a change of control of the Customer's company takes place and datAInsights refuses to do business with a person who has acquired direct or indirect control of the Customer's company for reasons of corporate policy (whether or not set out in writing), whereby the Customer is obliged to notify datAInsights in due time of an imminent change of control; or
      2. In the event that the legal requirements for datAInsights to provide the Services under these Terms cease to exist;
      3. If, within datAInsights' sphere of influence, there are reasons of a technical, economic, or operational nature that make the proper continuation of the Services impossible or unreasonable for datAInsights;
      4. If the Customer breaches his cooperation obligations more than once or only takes action more than once after being urged by datAInsights.
  13. Applicable Law
    1. The Terms are governed by Austrian law, with the exclusion of the rules of private international law and the UN Convention on Contracts for the International Sale of Goods. The application of the Austrian IPRG and other conflict-of-law rules is expressly excluded.
  14. Jurisdiction
    1. For all disputes arising from or in connection with the Contract, especially regarding the question of the conclusion and validity of these Terms, the exclusive jurisdiction of the Commercial Court of Vienna is agreed upon by the contracting parties.
  15. Final provisions
    1. Should any provision of these Terms and Conditions be or become wholly or partially invalid or unenforceable, this will not affect the validity or enforceability of the remaining provisions. The invalid or unenforceable provision will be replaced by a valid or enforceable provision that closest reflects the economic purpose of the invalid or unenforceable provision; the same shall apply in case of omissions in these Terms.
    2. Changes and additions to these Terms and Conditions require written form. This requirement for written form can only be deviated from by written agreement. No verbal side agreements to these Terms exist. These Terms completely replace all agreements previously concluded between the parties.
    3. The Customer is not entitled to assign the Contract or the rights and obligations arising from this agreement to a third party or to transfer them in any other way, including by way of universal succession.

These Terms and Conditions are made in German and English. In case of discrepancies between the two versions, the German version shall prevail. Any and all liability on the part of datAInsights for any deviations in content or mistranslations is excluded.

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