EULA End User License Agreement

General

365.retail is a trademark of Provaria GmbH. Provaria GmbH, Mitterweg 83, 8077 Goessendorf/Graz, Austria is the legal entity and takes the responsibility as a supplier. All further reference to 365.retail is defined as further trademark, product and service of Provaria GmbH.

365.retail renders its services and delivers its products solely (only) on the basis of this terms & conditions. Any additional terms & conditions or general purchasing terms of the contracting party are hereby rejected. Handwritten annotations on the order form are invalid. Offers have a validity period of 10 days after delivery.

1 Terms & Conditions for Software Licenses

1.1 General

1.1.1 Warranty

The warranty period for 365.retail software is 6 months. Errors in programs of third parties that 365.retail did not develop but has simply installed or adapted shall not be covered by 365.retail warranty. Costs for eliminating such errors, for example through service packs or hotfixes of the individual manufacturers, will be billed according to 365.retail’s price list. 365.retail cannot ensure that the corresponding manufacturers offer bug fixes.

1.1.2 Billing, Payment and Shipment

Payments made by the client are always accounted against the earliest open demands. E-mails and fax messages of 365.retail are considered as written documents. All prices shall be net prices to be paid at once, plus the legal value added tax.

The following invoicing regulations and payment terms shall apply, according to the country of the customer and the license type.

1.1.2.1 Purchased software licenses

– Invoicing is done immediately after order reception, with net due upon receipt of invoice. – The customer can request to receive a trial license (valid for 30 days). – Delivery of permanent licenses is done after order reception. Re-installing the software is not required.

1.1.2.2 Software license subscriptions

Payments are withdrawn monthly. The first installment is due immediately after order reception. The customer receives, upon request, a temporary license (valid for 30 days).

1.1.2.3 Available Payment Methods

Different payment methods (bank transfer, commonly used creditcards) are available depending on the area our customers are located as well as on the total amount (< 10000 EUR or > 10000 EUR).

International bank transfer payments shall be made as OUR bank transfers, i.e. the payer assumes all bank fees.

1.1.3 Liability

365.retail is liable for damage caused as follows:

For culpable damage caused to the customer’s life and limb and health If 365.retail, its representatives, or agent are found to be culpable of intent or flagrant gross negligence For claims under the product liability law, in so far as they are related to business customers Any other legally binding statutory claims. This limited liability is final. It is applicable to all claims for damages, regardless of their legal bases, particularly with regard to pre-contractual or auxiliary contractual claims.

In no case will the liability exceed the purchase price of the software or the value of 365.immo’s liability insurance.

In the event 365.retail is found to be culpable for the loss of data, 365.retail’s liability is limited to the expenses for the copying of the back-up copies and for the reconstruction of data which would be lost also in case of regularly back-ups. The customer shall be responsible for making back-up copies. The customer is obliged to make back-up copies of their data at least once a day. Failure to comply with this obligation is deemed to be contributory negligence.

1.1.4 Reference

The customer grants 365.retail the right for mentioning the customer’s company name and company logo for marketing purposes.

1.1.5 Reference Agreement

The customer agrees to become an 365.retail reference customer on the condition that they are satisfied with the software.

Becoming a reference customer starts with a customer satisfaction call. A quote of the customer satisfaction call will be published on the 365.retail website along with the customer’s company name and company logo. The content will be approved by the customer prior to publishing.

Furthermore, 365.retail’s Marketing Team is entitiled to create a reference story with the customer. Additionally, other 365.retail prospects and customers can contact the customer. Such calls will be advised and scheduled between 365.retail and the customer.

In case the customer is not satisfied with the software, it can be disagreed any time.

1.1.6 Confidentiality and Data Protection

The parties of the contract mutually agree to treat all information and documentation as well as materials (in particular software and stored data) with no expiration as confidential or secret, as long and to the extent that it is not proven public knowledge. Such confidential information, which is characterized by a contractor as confidential or secret, must also be treated as a business or trade secret. Also, the contractual parties guarantee that all their employees, representatives, or agents that they engage to fulfill this contract shall treat such information as confidential.

Excluded by this regulation is the legitimate request for information by official agencies, such as supervisory authorities, law enforcement agencies or courts. In accordance with this contract, 365.retail will process relevant personal data in strict accordance with the Austrian federal data protection act. The regulations in this paragraph shall remain valid even after the expiration of this contract.

1.1.7 Performance and Jurisdiction

The legal relationships between the parties are rising out of, or in connection with this contract, shall be governed by the laws of the Republic of Austria. The laws of the Republic of Austria are exclusively applicable, excluding the reference rules of Private International Law and excluding the UN Convention on Contracts for the International Sale of Goods (CSIG). Place of performance and jurisdiction respectively is Graz, Austria

1.1.8 Modifications, Supplementary

Agreements, and Severability clause

Amendments to this agreement must be made in writing. Verbal agreements are not seen as valid.

If any provision or provisions of this contract shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. In the place of the invalid or unenforceable provision, a reasonable provision shall apply which insofar as legally possible comes closest to fulfilling the original intention of the parties to the contract had they considered this point upon conclusion of the contract. The preceding provisions apply accordingly in the case that the contract is incomplete.

1.2 Software licenses

1.2.1 Delivery of Software

365.immo shall provide the customer with the software as compiled code. Delivery includes an installation manual and an operating manual in electronic form. Functionality of the software is contained in the operating manual.

1.2.2 Right of Use

For payment of the specified license fee, 365.retail grants the customer a non-exclusive and non-transferable, perpetual license to use the ordered software components as quoted before.

Any usage which makes the license available to third parties as a part of hosting, renting, or leasing is prohibited.

The customer is entitled to the extent necessary to make backup copies and copies of user documentation for internal use. The customer is obliged to protect the software and all documentation against unauthorized copying.

1.3 Software Subscription

As an alternative to buying 365.retail it can be subscribed to. For this purpose, the customer arranges a subscription. The software subscription licenses can then be used at a Microsoft CRM hosting provider on Microsoft CRM online or in an On Premise environment at the customer themselves. Subscription licenses can be combined with purchased Microsoft CRM licenses. There must always be a minimum of at least 3 license subscriptions. The minimum duration of the subscription is 12 months. Billing is done monthly in advance. After the minimum duration, the subscription and the individual amount of subscription seats can be terminated at any time by giving 3 months written notice from the end of the month. Termination letters, Faxes, or E-Mails are valid forms of correspondence.

In the instance a license subscription is cancelled, the customer is obligated to settle the remaining balance of the subscription contract period, one month after the cancellation has been received. The customer will then receive a license which is valid until the end of the contract period.

1.4 Licensing

365.retail shall be licensed per user within one Microsoft CRM organization. The number of users using the particular functions either in part or in whole is relevant. There are different roles available for licenses. The scope is listed in the product description.

1.4.1 Named User

365.retail will be licensed per user “named”. Therefore the number of users is relevant who are using the function in fully or partly.

1.4.2 User based on basic system

365.retail will be licensed per active user in the basic system (Dynamics 365). Each user, no matter if full or light user, Team Member or Read only, will be counted and accounted.

1.5 Activation

365.retail is protected by software activation. The customer shall receive the software together with an activation key which enables running the software in one Microsoft organization deployment only.

If the customer would like to use the software in another environment, 365.immo will provide the customer with a new activation key based on the condition that the previous installation is deactivated. The changeover is charged as an additional fee.

1.6 Requirements for Operation

For operating 365.retail, a fully functional Microsoft system as well as minimum one user license with administrator rights is required. This Microsoft CRM user license is used for 365.retail to perform functions and operations. It can be used contemporaneously by customers for other purposes.

1.7 Documentation

The customer is entitled to user documentation. He shall receive this, and an installation manual, in electronic formats.

When a new rollup of 365.retail is released, updated documentation will be available in the customer portal within 3 months after the final version is available.

2 Terms & Conditions for Maintenance Contracts

2.1 Maintenance

With the purchase respectively subscription of a software license a maintenance contract is concluded between 365.retail and the customer.

The maintenance contract entitles the customer to free upgrades, updates, hotfixes, and technical support for settings the configuration of the software during the period of the contract.

End-User support is not included in the maintenance contract. Should the customer request additional training for the general usage of the software, the services are delivered according to the terms & conditions for professional services and accruing costs will be charged according to 365.retail’s price list.

2.1.1 Software Updates

365.retail is continuously optimized and developed. In the scope of the maintenance contract, the customer is entitled to all published major releases, upgrades, updates and hotfixes for all licensed components. In this context, upgrade relates to a new product version with extended functionality. Updates include small to medium extended functions and possible bug fixes. Hotfixes are updates that eliminate specific critical errors of the product.

2.1.2 Definition of Support Level

End-User Support: questions of end users regarding the general usage of the software. Technical Support: support regarding installation and configuration of the solution as well as solving technical issues.

2.1.3 Support

The maintenance contract entitles the customer technical support via remote support for ensuring the installation and the correct functioning of the software. The customer should enter new support cases by the customer portal on the website www.365.retail

365.retail shall analyze the faulty software parts and give advice via telephone or E-Mail on how to eliminate the error.

In particular, an error exists if the program does not fulfill the functions stated in the manual, produces wrong results or shows errors in a repeatable manner so that the use of the program is impossible or considerably limited.

The removal of errors shall either be made by hotfixes, updates or personal support by an 365.immo employee. Provided this is acceptable to the customer, 365.immo may restrict itself to provide information on how to remove the error. In this case, the customer is obliged to carry out the measures himself. This applies in particular for installing updates and hotfixes. The measure to be used depends on the error and the way to remove it.

365.retail employees are not allowed to change the customers system by themselves by using input devices.

If 365.retail provides support to the customers’ issues that was caused by the customer (e.g. such as deleting the database by an employee of the customer etc.), the customer would be charged an additional fee according to the pricelist. This also applies retro actively.

2.2 Boundaries and Conditions

Both parties agree upon the following limitations and conditions:

In order to get support for troubleshooting, the customer’s software must be updated to the latest available software version of 365.immo at the time of the support request. Possibly, the underlying Microsoft system has to be updated as well. The scope of the maintenance contract includes only the 365.immo programs and modules, not the underlying Microsoft system itself. Support services only include debugging however, not the installation procedure, training on the product, or technical / organizational consulting. Support requests are to be exclusively made by two contact persons specified by the customer. Should failures occur during the use or the operation of the software, then the customer shall inform 365.immo only by a predetermined employee or use an online support system provided by 365.retail.

The customer shall provide all necessary information for analysis of the malfunction.

365.immo may be installed by the customer itself or by 365.immo. If the customer decides on a fee-based installation by 365.immo, it corresponds to the import of the Solution in the Microsoft System.

The verification and compliance of the underlying system is provided by the customer.

In the event that the customer wants a customization of 365.immo he has to bear the full cost of programming and higher maintenance

2.3 Technical deployment of support

365.immo uses the remote management software “TeamViewer” for remote support services. The use of these programs is covered by this contract. The customer shall care for all technical requirements for the use these programs (e.g. such as opening the correct firewall ports).

Should the customer request the use of another remote maintenance software, they shall bear the costs for setting up the software at 365.immo and for operating the software at 365.immo if necessary. In the event that there is no remote support possible with a customer, the customer shall bear the travel costs and the travel times.

All phone calls and online sessions can be recorded for quality assurance purposes.

2.4 Service Hours

365.immo guarantees reaction times within 5 working days after the notification of the malfunction.

2.5 Obligations of the Customer

The following conditions must be guaranteed for the contractual support of 365.immo:

Fully functioning hardware that is suitable for 365.immo:

Fully functioning operating system
Fully functioning Microsoft system
Implementation of provided updates
A running network for network installations
Compliance with the current individual system requirements for 365.immo
Furthermore, the customer shall collaborate during the debugging procedure within the normal limits; in particular providing information and necessary computer time.

2.6 Costs of the Maintenance Contract

2.6.1 Subscription Licenses

The maintenance contract is included in the monthly subscription price.

2.7 Duration and termination of subscriptions

The maintenance contract included with the subscription licenses expires when the subscription ends.

3 Terms & Conditions for Professional Services and 3rd-Party Software

3.1 General

365.immo is a trademark of Provaria GmbH. Provaria GmbH, Mitterweg 83, 8077 Goessendorf/Graz is the legal entity and takes the responsibility as a supplier. All further reference to 365.immo is defined as further trademark, product and service of Provaria GmbH.

3.1.1 Invoicing and Payment Terms

Payments made by the client are always accounted against the earliest open demands. E-mails and fax messages of 365.immo are considered as written documents. All prices shall be net prices to be paid at once, plus the legal value added tax.

The following invoicing regulations and payment terms shall apply, according to the country of the customer and the rendered service.

3.1.1.1 For Germany, Austria, Switzerland

Training (open and closed) and Installation offered at a fixed price must be prepaid. Service Packages are invoiced immediately upon reception of order, payable within 5 days net. Time & Material Services are invoiced every month end, based on the timesheet for the previous month, payable within 5 days net. 3rd-Party Software: prepaid.

3.1.1.2 For all other countries (USA, EU, Rest of world)

Training (open and closed) and Installation offered at a fixed price must be prepaid. Service Packages must be prepaid. Binding appointment agreements for service packages are arranged only after reception of payment. For Time & Material Services a deposit has to be paid by the customer. The services are delivered on basis of this deposit until the deposit amount has been reached. The customer will receive a monthly timesheet. 3rd-Party Software: prepaid.

3.1.2 Available Payment Methods

Different payment methods (bank transfer, commonly used creditcards) are available depending on the area our customers are located as well as on the total amount (< 10000 EUR or > 10000 EUR).

International bank transfer payments must be made as OUR bank transfers, i.e. the payer assumes all bank fees.

3.1.3 Liability

365.immo is liable for damage caused as follows:

For culpable damage caused to the client’s life and limb and health If 365.immo, its representatives or vicarious agent is/are culpable of intent or gross negligence For claims under the product liability law, insofar they are related to business clients Any other legally binding statutory claims This limited liability is final. The limitations on liability shall apply to all claims for damages, regardless of their legal ground, especially with regard to contractual contractrelated claims. In no case will the liability exceed the value of 365.immo’s liability insurance and the price of the rendered services.

In the event 365.immo is culpably responsible for the loss of data, 365.immo’s liability is limited to the expenses for the copying of the back-up copies and for the reconstruction of data which would be lost also in case of regularly back-ups. The client shall be responsible for making back-up copies. The client is obliged to make back-up copies of his data at least once a day. Failure to comply with this obligation is deemed to be contributory negligence.

3.1.4 Confidentiality and Data Protection

Excluded by this regulation is the legitimate request for information by official agencies, such as supervisory authorities, law enforcement agencies or courts.

In accordance with this contract, 365.immo will process relevant personal data in strict accordance with the Austria federal data protection act. The regulations in this paragraph shall remain valid even after the expiration of this contract.

3.1.5 Rights to Work Results

All copyrights in the scope of services rendered in a project, e.g. program codes, process models and process flow structures, remain in the possession and for unrestricted use of 365.immo. The unrestricted use and further use of programs documented in the scope of a project on the part of the client shall not be affected by this. In general, program code shall be rendered in compiled format and processes shall be provided in PDF formats. The rights of use are transferred only when the contractually agreed payments have been made in full.

3.1.6 Cooperation Obligations

The client shall fulfill various obligations in the scope of installations, implementations, projects, or trainings. As a matter of principle, it is the client’s contractual obligation (cardinal obligation) to fulfill these cooperation obligations. The proper provision of services by 365.immo requires that the client and his representatives and/or vicarious agent fulfill their cooperation obligations in time and in a qualified manner.

365.immo shall point out delays of the cooperation obligations and submit a written reminder for their compliance. Furthermore, 365.immo shall point out further consequences if the cooperation obligations are not fulfilled. Delays of the project and any resulting additional costs due to delayed provision of cooperation obligations by the client and his representatives and/or vicarious agent or are not the responsibility of 365.immo nor its representatives and/or its vicarious agent, shall be at the expense of the client and on no account of 365.immo.

3.1.7 Dates

All services are rendered in the scope of the time schedule agreed between the parties. The compliance with these dates implies that the client shall fulfill his cooperation obligations independently and in a qualified and punctual manner, and, in particular, shall provide the information, documents, permissions and approvals requested by 365.immo. If these requirements are not met, the delivery periods will adequately be extended, however, at least by the period of the delay.

Appointments for services will be agreed upon directly after receipt of order. Ordered services have to be retrieved within 6 months after order date.

3.1.8 Warranty

Both parties agree upon a 3-month warranty period for 365.immo services and software. Errors in programs of third parties that 365.immo does not develop but has simply installed or adapted shall not be covered by 365.immo warranty. Costs for eliminating such errors, for example through service packs or hotfixes of the individual manufacturers, will be charged according to 365.immo’s price list. 365.immo cannot ensure that the corresponding manufacturers offer bug fixes.

3.1.9 Place of Jurisdiction and Performance

All legal relationships between the contracting parties from or in connection with this contract are subject exclusively to the laws of the Austrian Republic. The law of the Republic of Austria is exclusively applicable, excluding the reference rules of Private International Law and excluding the UN Convention on Contracts for the International Sale of Goods (CISG). Place of jurisdiction and place of performance shall be Graz, Austria.

3.1.10 Modifications, Supplementary Agreements, Severability

Amendments to this agreement must be made in writing. Verbal agreements are not seen as valid. If any provision or provisions of this contract shall be held to be invalid, illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. In the place of the invalid or unenforceable provision, a reasonable provision shall apply which insofar as legally possible comes closest to fulfilling the original intention of the parties to the contract had they considered this point upon conclusion of the contract. The same shall apply to any loophole in the contract.

3.2 Services

Only relevant by order of services.

3.2.1 Definition Man-Day

One man-day equals to eight hours (Monday to Friday) between 9 am and 5 pm. Outside this period of time and on Saturdays, an extra charge of 50% of the respective day rate is added. For services on Sundays and holidays an extra charge of 100% of the respective day rate is added.

3.2.2 Requirements for Services

The client designates a contact person as the project manager for 365.immo as well as a substitute. The contact person or his substitute shall be available to 365.immo for queries during regular business hours. Furthermore, the client provides 365.immo with one or several technical contact persons who are familiar with the client’s systems, and are available to 365.immo for queries and support during regular business hours. The client provides the entire content and data in all languages required. Should image material be required (company logos, etc.), it shall be provided by the client in digital formats (TIFF, JPG, GIF or EPS) of sufficient resolution and quality, and license-free. The client provides 365.immo with all required data. Should adjustments or additions to the program or 365.immo renewed tests become necessary due to subsequent changes of the data by the client, the costs for this will be charged according to 365.immo’s price list.

Should the information provided by the client be insufficiently documented and this fact is noticed in advance by 365.immo, 365.immo shall inform the client and request additional information. Should additional rework or costs occur due to insufficient specifications by the client that were not apparent for 365.immo at first, they will be charged according to 365.immo’s price list.

Should the place of work not be Graz for the 365.immo employee , the client will provide a suitable infrastructure for the work environment of the 365.immo employee. Apart from a workplace in accordance with the Austrian national ordinance governing VDU workplaces, this also includes access to the internet and a telephone connection.

3.2.3 Cancellation of Services

In the instance that the customer fails to keep service and appointment dates, the following charges will apply:

Travel expenses already accrued (e.g. hotel reservations, purchased tickets, arrival on the previous evening) => 100%
Cancellation 5 work days prior to scheduled services => 20%
Cancellation 48 hours prior to scheduled services => 50%
Cancellation 24 hours prior to scheduled services => 80%
Cancellation at the day of scheduled services => 90%
These percentage figures relate to

the man-day rate of renderer of services and the expenses actually incurred in case of travel costs

3.3 Feature Extensions

Feature Extensions are enhancements of the 365.immo which are ordered by a customer and are financed or co-financed by the customer.

The functions defined for a Feature Extension are delivered to the customer within a regualar Rollup Update. The customer is obligated to pay the amount for the Feature Extension and requires a valid maintenance contract when the Feature Extension is published. If the customer has subscribed for the 365.immo, deviant from chapter Software Subscriptions, the minimum duration for the subscription is extended to 5 years.

3.4 Software

Only relevant by order of individual software.

3.4.1 Field of application

This chapter gives attention exclusively to software components which are individually manufactured for the customer. For the standard software of the brand 365.immo as well as for products of third party providers, separate agreements are in effect.

3.4.2 Delivery of software

365.immo will provide a compiled version of the software to the customer. Delivery of this software includes an installation guide and an operating guide only if both parties have agreed to this in writing and the customer pays for the effort of creating the documents.

3.4.3 Maintenance

Tentative required maintenance of standard software products as well as individual software components are agreed in a separate maintenance contract.