AGB/GTC

1. Soma and Product Description

1.1. Soma Reality GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) duly incorporated and validly existing under the laws of Austria, with its corporate seat in Vienna and its business address at Am Tabor 36, 1020 Vienna, registered with the commercial register of the Commercial Court Vienna (Handelsgericht Wien) under registration number FN 523631 x (“SOMA”). SOMA specializes in developing eye-tracking based digital biomarkers which can be used to better understand and monitor cognitive processes in real-time.

1.2. The software solution(s) provided by Soma Reality GmbH (the “Software”) comprise(s) any and all software components, tools and technologies made available to the Customer, including, without limitation, (i) applications with a graphical user interface (GUI), (ii) command-line interfaces (CLI), (iii) application programming interfaces (APIs), software development kits (SDKs) or libraries for integration into the Customer’s systems, and (iv) custom integrations based on SOMA’s proprietary biomarkers, algorithms and underlying components, in each case as further specified in the individual Contract.

1.3. These General Terms and Conditions (hereinafter referred to as “GTC”) apply to all services provided in the context of the business relationship between SOMA and its business and/or service customers (each the “Customer” and the Customer together with SOMA the “Parties”) in connection with the software solutions offered by SOMA, even without explicit reference to these GTC.

2. Scope of application / Changes to the GTC

2.1. These GTC are available under https://somareality.com/agb/ and govern the legal framework for:

2.1.1. the one-time granting of a perpetual license to use the Software pursuant to Section 3. (the “Purchase”),

2.1.2. the renewable granting of a time-limited license to use the Software pursuant to Section 4. (the “License”) and

2.1.3. providing related and/or individual services, including, without limitation, assistance with the implementation and integration of the Software, product training, customer-specific configurations, maintenance and support, as well as the development of customer-specific adaptations and extensions of the Software (the “Related Services”).

2.2. These GTC shall apply to all services provided pursuant to Clause 2.1, unless expressly stated otherwise in these GTC or in the purchase of the individual Contract.

2.3. Unless explicitly agreed otherwise with the Customer, “Third Parties” within the meaning of these GTC are all persons that are not a Party; hence, also any branch offices, affiliated companies within the meaning of section 189a item 8 Austrian Commercial Code (Unternehmensgesetzbuch – UGB) or contractual partners of a Party are Third Parties.

2.4. SOMA reserves the right to change or supplement these GTC with effect for the future. SOMA will inform the Customer of any changes and additions with notification of the content of the amended or supplemented regulations with reasonable notice in advance in text form (e.g. by e-mail), but at least two months before the planned entry into force of the changes/supplements. The amendments/additions shall be deemed to have been accepted by the Customer if the Customer does not object to the amendments/additions in text form within six weeks of receipt of the notification. If, on the other hand, the Customer objects in accordance with the preceding sentence, the contract shall continue to apply under the previous conditions without amendment. SOMA will separately inform the Customer of the right to object and the aforementioned legal consequences of silence in the notification of change.

3. Purchase of the Software

3.1. The Customer may acquire a perpetual right to use the Software against payment of a one-time fee (“Purchase Price”) by means of a purchase agreement to be concluded separately between the Customer and SOMA (the “Purchase Agreement”) pursuant to the provisions set forth in Section 6.

3.2. Subject to full compliance by the Customer with the Purchase Agreement (including these GTC), the Purchase comprises a perpetual, non-exclusive, non-transferable, and non-sublicensable right to use the object code of the Software in the current version at the time of the conclusion of the Purchase Agreement, provided to the Customer by way of electronic download pursuant to Section 7, exclusively for the Customer’s own internal business purposes, and strictly within the scope and limits of the Purchase Agreement (including these GTC). The source code of the Software is expressly not the subject of the Purchase Agreement. Any entitlement to future updates, upgrades, or Related Services is excluded unless otherwise agreed by the Parties in the Purchase Agreement.

3.3. The Customer acknowledges that the right to use the Software pursuant to Clause 3.2 relates to the Software in the version current at the time of conclusion of the Purchase Agreement and is technically dependent on the hardware, operating systems and system environments supported by SOMA at that time. SOMA does not warrant or guarantee the continued compatibility or operability of the Software with future generations of hardware, operating systems, system architectures or other technological developments. SOMA shall be under no obligation to modify, adapt or update the Software provided under the Purchase Agreement to ensure compatibility with any such future technologies, unless otherwise agreed in a separately concluded Service Agreement pursuant to Section 5.

3.4. Upon full payment of the Purchase Price specified in the Purchase Agreement, any License granted to the Customer pursuant to Section 4. in respect of the Software acquired under such Purchase Agreement shall automatically terminate without the need for a separate notice of termination. Any License Fees paid in advance by the Customer in connection with such License that relate to a period following such termination shall be refunded on a pro rata basis.

4. Time-limited License to use the Software

4.1. The Customer may acquire a time-limited right to use the Software against payment of recurring license fees (the “License Fees”) by means of a license agreement to be concluded separately between the Customer and SOMA (the “License Agreement”) pursuant to the provisions set forth in Section 6.

4.2. Subject to full compliance by the Customer with the License Agreement (including these GTC), with effect from the effective date stated therein, SOMA grants to the Customer, for the term of the respective License Agreement, a non-exclusive, non-transferable, non-sublicensable and revocable right, worldwide, to access and use the Software , provided to the Customer by way of electronic download pursuant to Section 7, exclusively for the Customer’s own internal business purposes, and strictly within the scope and limits of the License Agreement (including these GTC).

4.3. The License Agreement is concluded for the term specified in the License Agreement (the “License Term”). SOMA may notify the Customer by e-mail no later than one (1) month prior to the expiry of the respective License Term that the License Term is about to expire. The Customer may request a renewal of the License Agreement prior to the expiry of the License Term. In the absence of a timely renewal request by the Customer, the License Agreement shall automatically expire at the end of the respective License Term without the need for a separate notice of termination.

4.4. Ordinary cancellation of the License Agreement is mutually excluded.

4.5. The right to terminate for good cause remains unaffected. For SOMA, an important reason exists in particular if

(i) fulfilment of the Services becomes impossible for reasons for which the Customer is responsible or is further delayed despite the setting of a grace period of 10 working days;

(ii) the Customer persistently violates material provisions of the License Agreement; or

(iii) insolvency proceedings are opened against the Customer or are discontinued due to lack of assets.

5. Subject-matter of Related Services

5.1. The scope of Related Services to be provided by SOMA against payment of service fees (the “Service Fees”) are subject to a service agreement to be concluded separately between the Customer and SOMA (the “Service Agreement”) pursuant to the provisions set forth in Section 6.

5.2. The term, renewal and termination provisions applicable to the provision of Related Services shall be determined individually in the respective Service Agreement.

5.3. Related Services may comprise, but are not limited

(i) to assist the Customer with the implementation, configuration and integration of the Software into the Customer’s existing IT infrastructure, including, where applicable, support in the migration from a previously used software system;

(ii) to conduct product training relating to the use of the Software and to respond to Customer enquiries and error reports in accordance with Section 8;

(iii) to carry out repair and maintenance work on the Software;

(iv) to carry out Customer-specific data analyses.

6. Conclusion of an individual Contract

6.1. A Purchase Agreement or a License Agreement, each together with or without a Service Agreement (a Purchase Agreement or a License Agreement, each together with any related Service Agreement, a “Contract”), shall be concluded by way of an individual offer issued by SOMA and the timely acceptance thereof by the Customer.

6.2. The Customer may at any time request SOMA to submit an offer either for a Purchase Agreement or License Agreement together with or without a Service Agreement; however, SOMA shall be under no obligation to do so and shall be free to determine, at its sole discretion, whether to submit an offer for a Purchase Agreement or a License Agreement, whether to include a Service Agreement, and, if so, the scope of the Related Services to be offered thereunder.

6.3. SOMA’s offer shall bindingly specify the purchase price, the precise description of the Software functions as well as scope of Related Services to be provided.

6.4. The Contract between the Customer and SOMA comes into effect upon receipt of the Customer’s written order and SOMA’s written, duly signed order confirmation.

7. Provision of Software

7.1. Upon conclusion of the Contract, SOMA shall make available to the Customer a download link together with a time-bound license key file required to activate and use the Software.

7.2. Following the completed download and activation, the Software shall be installed and operated exclusively on the Customer’s local systems (local integration); SOMA shall have no further obligation to host, maintain or otherwise make the Software available remotely.

8. Software Support

8.1. SOMA provides software support to the Customer and carries out maintenance work exclusively for the Software (the “Software Support”) as part of the Contract:

8.1.1. Where the Contract comprises a Purchase Agreement, the Software Support shall be included for a period of twelve (12) months from the date of conclusion of the Purchase Agreement. Upon expiry of the initial twelve (12) month period, the Customer may request continued Software Support against payment of a separate fee (the “Catch-up Fee”), the amount and terms of which shall be agreed between the Parties separately in writing.

8.1.2. Where the Contract comprises a License Agreement, the Software Support shall be included for the duration of the respective License Term.

8.2. SOMA does not provide support or carry out maintenance work for third-party software or open-source software, unless an explicit agreement beyond these GTC is concluded in that respect.

8.3. Software Support includes professional advice provided to the Customer by qualified SOMA employees regarding the use of the Software. Support can be provided in an appropriate form, for example by e-mail, telephone, video conference or personal appointment, each during ordinary business hours (Monday to Friday, 8:00 a.m. to 5:00 p.m. (CET/CEST, Vienna)).

8.4. SOMA is constantly developing the Software and strives to constantly improve it. Exclusively where the Contract comprises a License Agreement, updates are generally provided to the Customer free of charge as part of the Software Support. However, if these are major updates and enhancements to the functionality of the Software (e.g. by adding modules or new functionalities), they may be classified by SOMA as a new product or upgrade and may be made available to the Customer against payment of an additional fee.

9. IP Rights

9.1. For the avoidance of doubt, title to and ownership of all intellectual property rights, including patents, copyrights, trademarks, designs, know-how or other intellectual property rights (“IP Rights”) relating to the Software, the Related Services and any related documentation remain at all times exclusively and without limitation with SOMA, subject to the rights of use expressly granted to the Customer under the Contract.

9.2. Any specifications, further developments or adaptations of the Software or of programmes based thereon created within the scope of the contractual relationship with the Customer shall, upon their creation, vest in SOMA or its licensors to the fullest extent permitted by law; to the extent such vesting is not legally possible, the Customer hereby grants SOMA an exclusive, irrevocable for itself and its legal successors, transferable, sublicensable and worldwide right of use thereto.

9.3. If third-party claims are asserted against the Customer with regard to the Software, the Customer shall notify SOMA without undue delay and refrain from acknowledging such claims. SOMA shall, at its discretion:

(i) defend against such claims;

(ii) settle such claims; or

(iii) replace or modify the affected Software with a functionally equivalent alternative that is acceptable to the Customer.

9.4. Upon SOMA’s request and at SOMA’s expense, the Customer shall also entrust SOMA with the legal defense. The Customer is obligated to provide SOMA with reasonable assistance in the legal defense.

10. Remuneration and payment terms

10.1. The remuneration to be paid by the Customer under the Contract may comprise the Purchase Price, the License Fees and/or the Service Fees, as applicable (altogether the “Remuneration”). The specific components and amounts of the Remuneration are set forth in the individual Contract.

10.2. Unless otherwise agreed in the individual Contract, the Purchase Price or License Fees must be paid in advance. SOMA shall not be obliged to deliver or make available the Software to the Customer until the Purchase Price or License Fees has been received by SOMA in full and without deduction. If SOMA nevertheless provides the Software, this does not prevent the Customer from being obliged to pay the Purchase Price or License Fees. Until the Purchase Price or License Fees has been paid, SOMA is entitled to refuse to provide the Software or to exclude the Customer from using the Software.

10.3. Unless otherwise agreed in the individual Contract, Service Fees are to be paid after provision of the Related Services.

10.4. Unless otherwise agreed in the individual Contract, invoices from SOMA regarding the Remuneration are due for payment without deduction within fourteen days of receipt by the Customer. SOMA is entitled to send the invoices to the Customer by e-mail or to make them available to the Customer online.

10.5. If the Customer is in default of payment of the Remuneration, SOMA is entitled to charge default interest pursuant to section 456 Austrian Commercial Code (Unternehmensgesetzbuch – UGB). Furthermore, in the event of default of payment, the Customer undertakes to reimburse SOMA for reminder and collection charges as well as all costs necessary for appropriate legal action.

10.6. All prices are denominated in EUR and – unless they are expressly designated as gross prices – are exclusive of the statutory value added tax applicable at the relevant time. Unless expressly stated otherwise, the Customer is responsible for all other taxes and duties applicable to the sale and use of the Software and/or Related Services.

10.7. The Customer waives its right to set off any counterclaims against SOMA’ compensation claims, unless these counterclaims have been acknowledged by SOMA in writing or determined by a court. Moreover, the Customer may not withhold payments on the grounds of incomplete total delivery, guarantee or warranty claims or complaints.

10.8. The Customer shall pay the remuneration by bank transfer with a payment slip or by electronic bank transfer (online banking) or grant SOMA authorisation to directly debit fees. The Customer shall bear all expenses arising in connection with payment transactions.

10.9. The following provisions pursuant to this Clause 10.9 shall apply only where the Contract comprises a License Agreement and/or a Service Agreement. For the avoidance of doubt, these provisions shall not apply where the Contract comprises a Purchase Agreement without a Service Agreement:

10.9.1. Periodically accruing License Fees or Service Fees shall be adjusted according to the Consumer Price Index (Verbraucherpreisindex). The Consumer Price Index 2020 (base year 2020), which is published monthly by Statistics Austria, or an index replacing it, serves as a measure for the calculation of the stable value. The reference figure for the Contract is the index figure calculated for the month in which the Contract is concluded. Fluctuations of the index number upwards or downwards of up to and excluding 5 % shall be disregarded. This margin shall be recalculated each time it is exceeded, either upward or downward, and the first index figure outside the applicable margin shall always form the basis for both the recalculation of the claim amount and the calculation of the new margin. All rates of change shall be calculated to one decimal place.

10.9.2. Failure to exercise the right to value adjustment shall not constitute a waiver of future adjustments. Index adjustments of the charges do not entitle the Customer to extraordinary termination.

10.9.3. In the event that SOMA adds additional content or functionality to the Software after the conclusion of a License Agreement (“Extensions”), SOMA reserves the right to increase the License Fees owed by Customer as follows:

(i) SOMA will inform the Customer of a possible increase in the remuneration with notification of the specific Extensions with reasonable notice in advance in text form (e.g. by e-mail), but at least six weeks before the planned entry into force of the price increase.

(ii) The relevant price increase shall be deemed to have been accepted by the Customer if the Customer does not object to it in text form within six weeks of receipt of the notification. SOMA will separately inform the Customer of the right to object and the aforementioned legal consequences of silence in the notification of change. In the event that the Customer objects to the price increase, the contractual relationship between SOMA and the Customer will be continued under the previous conditions. In this case, the Customer is not entitled to the provision and/or use of the relevant Extensions.

11. Obligations of the Customer

11.1. To enable full functionality of the Software and Related Services, the Customer shall use up-to-date technologies and system environments or enable their use. The Customer acknowledges that the use of outdated or unsupported technologies may result in functional limitations of the Software and Related Services, for which SOMA shall not be responsible.

11.2. The Software as well as any documentation, proposals, test programmes, etc. relating to the Software or the Related Services may neither be reproduced nor made available to Third Parties whether temporarily or permanently. If no Contract is concluded with the Customer or in case of termination of the Contract, those contractual items, documentation, proposals, test programmes etc. shall be returned or deleted and may no longer be used.

11.3. The Customer shall use the Software and Related Services exclusively in accordance with their intended purpose pursuant to the Contract. The Customer shall in no case modify, adapt, translate, decompile, reverse engineer or otherwise attempt to derive the source code of the Software, nor remove, circumvent or alter any technical protection measures, digital rights management systems, proprietary notices or security features.

11.4. The Customer shall refrain from any use of the Software or the Related Services that constitutes misuse or is unlawful, abusive or not in accordance with the Contract, including, but not limited to, any actions that may harm, endanger or impair SOMA or its services for other users.

11.5. The following obligations of the Customer pursuant to this Clause 11.5 shall apply only where the Contract comprises a License Agreement (whether or not together with a Service Agreement) or a Purchase Agreement together with a Service Agreement. For the avoidance of doubt, these obligations shall not apply where the Contract comprises a Purchase Agreement without a Service Agreement:

11.5.1. The Customer shall immediately notify SOMA in writing of any change to its name, legal form, address, invoicing details or bank details. Failing such notification, declarations and documents shall be deemed duly received if sent to the most recently communicated contact details.

11.5.2. The Customer shall provide SOMA, in a timely, complete and accurate manner, with all information, data, documentation and other cooperation required for the proper and lawful provision of the Software and Related Services. This obligation also applies to information that becomes known during the performance of the Contract. The Customer shall bear any additional costs and expenses incurred by SOMA due to delays, repetition of work or additional efforts resulting from incorrect, incomplete or subsequently changed information or insufficient cooperation attributable to the Customer.

11.5.3. If the Customer fails to timely fulfil its cooperation obligations, agreed delivery dates and service schedules shall be extended accordingly. SOMA shall be entitled to separately invoice any additional expenses incurred as a result, provided such failure or delay is attributable to the Customer.

11.5.4. The Customer acknowledges that the Software is installed and operated exclusively on the Customer’s local systems and that SOMA does not process, access or store any Customer Data. The Customer shall be solely responsible for ensuring that any content, data or materials processed, generated or otherwise used by the Customer by means of the Software and/or the Related Services (the “Customer Data”) comply with all applicable laws, including, without limitation, competition law, trademark law, copyright law, administrative law requirements and all laws applicable to the collection, protection, storage, processing, use and/or disclosure of personal data, including, but not limited to, Regulation (EU) 2016/679 (General Data Protection Regulation) and Directive 2002/58/EC (collectively, “Data Protection Legislation”). In particular, where Customer Data contains “personal data” pursuant to any applicable Data Protection Legislation, the Customer shall be solely responsible for ensuring that all necessary consents and legal bases are in place for the processing of such personal data by the Customer by means of the Software and/or the Related Services. SOMA shall not be liable for the legality, compliance, accuracy or admissibility of any Customer Data.

12. Warranty

12.1. SOMA shall provide the Software and Related Services in accordance with the generally accepted state of the art and customary industry standards applicable at the time of provision, subject to the limitations and exclusions set out in this Section 12. The Customer acknowledges that, due to the current state of the art, software cannot be provided entirely error-free and that minor deviations, imperfections or interruptions which do not materially impair the contractual use of the Software and Related Services shall not constitute a defect. This provision does not constitute a warranty, a guarantee of uninterrupted operation, error-free performance or suitability for a specific purpose, which are excluded pursuant to this Section 12.

12.2. Subject to the express warranties set out in this Section 12. and to the maximum extent permitted by applicable law, SOMA provides the Software and Related Services “as is” and “as available” and disclaims all other warranties, whether express, implied or statutory. In particular, SOMA does not warrant:

(i) specific business requirements or expectations;

(ii) the absolute accuracy, completeness or correctness of data processed / produced by the Services, where such data quality depends on the quality of input data provided by the Customer or Third Parties or from inherent limitations of algorithmic or statistical systems;

(iii) the legal admissibility of the Customer’s use of the Software and Related Services under laws and regulations applicable to the Customer’s business, industry or jurisdiction, in particular with respect to data protection, competition, regulatory provisions, administrative or intellectual property law;

(iv) compliance with regulatory requirements applicable to the Customer; or

(v) the achievement of specific commercial results, cost savings, revenue increases or other business outcomes.

12.3. The limitations set out in this Section 12.2 shall not apply to:

(i) warranties that cannot be excluded under mandatory applicable law;

(ii) liability for personal injury (damage to life, body or health); and

(iii) liability for damages that are caused by wilful intent (Vorsatz) or blatant gross negligence (krass grobe Fahrlässigkeit) on the part of SOMA, its legal representatives or senior management.

12.4. SOMA warrants that, at the time (i) the Purchase takes place or (ii) License is granted, the Software is free from third-party rights that would prevent the Customer from the contractualy agreed use. This warranty does not apply to third-party content, data or materials provided or selected by the Customer.

12.5. The Customer acknowledges that the Software and Related Services may depend on interfaces, APIs or systems of Third Parties. SOMA does not warrant the permanent availability, compatibility or functionality of such third-party systems, as these are outside SOMA’s control.

12.6. Any information on technical data or product features SOMA provides in printed matter, catalogues, the web page, advertisements, price lists and other information and promotional materials merely represent a general description and labelling of the Software and Related Services and may not be relied upon for asserting Customer claims, if any. A guarantee as to a certain condition shall only be deemed to exist if such guarantee has been expressly indicated and agreed.

12.7. The presumption of defectiveness pursuant to § 924 Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch – ABGB) is excluded to the maximum extent legally permissible.

12.8. No warranty is given for defects or malfunctions resulting from:

(i) hardware, operating systems or third-party software not controlled by SOMA;

(ii) improper use, misuse or negligent handling by the Customer;

(iii) unauthorised modifications or interventions;

(iv) atypical operating conditions or non-compliance with instructions;

(v) viruses, transmission errors or external events beyond SOMA’s control.

12.9. Provided that defects are duly notified and confirmed, SOMA shall be entitled to first remedy such defects by repair or replacement within a reasonable period. Only if such remedy finally fails may the Customer reduce the Purchase Price or License Fees proportionally or rescind the Contract, to the extent permitted by mandatory law.

12.10. Support services, troubleshooting or defect rectification attributable to the Customer or Third Parties shall be provided against reimbursement of costs at SOMA’s applicable rates.

12.11. The following provisions pursuant to this Clause 12.11 shall apply only where a Service Agreement is concluded:

12.11.1. Where Related Services relate to modifications or extensions of existing Software, any warranty shall be limited exclusively to such modifications or extensions and shall not revive or extend warranties for the existing Software.

12.11.2. Unless explicitly agreed otherwise in writing, the Customer shall only be entitled to a reduction of the Service Fees if the availability of the Related Services falls below 95 % per calendar year for reasons attributable to SOMA. The burden of proof that such unavailability falls within SOMA’s sphere of responsibility shall lie with the Customer.

12.11.3. Events beyond SOMA’s reasonable control, including, but not limited to, natural disasters, fire, power failures, epidemics, strikes, lockouts or governmental measures (the “Force Majeure Events”), may interrupt the provision of the Software and Related Services and shall not constitute defects nor be considered in availability calculations.

13. Liability

13.1. SOMA shall be liable for damages suffered by the Customer only to the extent that such damages were caused by wilful intent (Vorsatz) or blatant gross negligence (krass grobe Fahrlässigkeit) on the part of SOMA, its legal representatives, employees or vicarious agents. The burden of proof for the existence of wilful intent or blatant gross negligence shall rest with the Customer.

13.2. Any liability of SOMA for simple gross negligence (grobe Fahrlässigkeit) and for slight negligence (leichte Fahrlässigkeit) is excluded to the maximum extent permitted by applicable law, except in cases of personal injury, including damage to life, body or health, for which SOMA shall be liable in accordance with mandatory statutory provisions.

13.3. To the maximum extent permitted by applicable law and irrespective of the legal basis of the claim (contract, tort, culpa in contrahendo or otherwise), SOMA in no case shall be liable for:

(i) indirect or consequential damages (Folgeschäden);

(ii) pure financial losses (reine Vermögensschäden);

(iii) loss of profit (entgangener Gewinn), loss of turnover, loss of business opportunities or loss of goodwill;

(iv) loss of data, unless such loss was caused by wilful intent or blatant gross negligence;

(v) damages resulting from claims asserted by third parties against the Customer.

13.4. Any claims for damages asserted by the Customer against SOMA shall be forfeited unless they are asserted in writing within twelve (12) months after the Customer has become aware of both the damage and the damaging party.

13.5. Except in cases of personal injury, gross negligence or wilful misconduct, the aggregate liability of SOMA to a Customer under or in connection with the Contract shall be limited to the total Remuneration actually paid by the respective Customer to SOMA during the twelve (12) months preceding the event giving rise to liability. Any further liability, in particular for damages exceeding this amount, is excluded.

13.6. SOMA shall not be liable for any failure or delay in the performance of its obligations resulting from Force Majeure Events. In such cases, SOMA shall be entitled to suspend the performance of the affected obligations for the duration of the impediment plus a reasonable restart period, without giving rise to any claims for damages.

13.7. Any recourse claims, if any, asserted against SOMA by the Customer or third parties in reliance on product liability within the meaning of the Austrian Product Liability Act (Produkthaftungsgesetz – PHG) shall be excluded, unless the relevant party entitled to assert recourse claims proves that the damage was caused by a defect within SOMA’s sphere of control and resulted from at least gross negligence on the part of SOMA. This provision shall not limit or exclude SOMA’s mandatory liability towards injured parties under the Austrian Product Liability Act.

13.8. To the extent SOMA’s liability is excluded or limited under this Section 13., the same exclusions and limitations shall apply mutatis mutandis to the personal liability of SOMA’s legal representatives, employees, vicarious agents and other persons engaged by SOMA for the performance of the Contract.

14. Indemnification

14.1. The Customer shall indemnify, hold harmless and fully satisfy SOMA against any and all claims, damages, losses, liabilities, costs and expenses (including reasonable legal defence costs) asserted by Third Parties or imposed by authorities, to the extent permitted by applicable law, insofar as such claims are attributable to circumstances within the Customer’s sphere of responsibility (the “Indemnification Obligation”).

14.2. In particular, the Indemnification Obligation shall apply if claims, damages or measures against SOMA arise from or are connected with:

(i) any breach by the Customer of its contractual obligations, including these GTC or applicable usage restrictions;

(ii) any use of the Software or the Related Services that violates applicable laws, regulations, administrative requirements or official orders;

(iii) any actual or alleged infringement of intellectual property rights, personality rights, data protection rights or other third-party rights caused by the Customer’s use of the Software of Related Services, the Customer Data provided, uploaded or otherwise made available by the Customer, or the Customer’s instructions or configurations;

(iv) the provision, processing or use of Customer Data in violation of applicable laws or third-party rights, including Data Protection Legislation;

(v) any misuse, unauthorised use or use beyond the contractually agreed purpose of the Software and Related Services;

(vi) any administrative proceedings, sanctions, fines or official measures imposed on SOMA as a result of conduct solely attributable to the Customer.

14.3. The Indemnification Obligation shall include, in particular:

(i) third-party claims for damages or injunctive relief;

(ii) costs and fines associated with court and administrative proceedings;

(iii) reasonable costs of legal defence (including attorneys’ fees and court costs);

(iv) settlements, fines or penalties, to the extent legally recoverable.

14.4. The Indemnification Obligation shall also apply if SOMA is held liable as a joint tortfeasor, participant or accessory, provided that the underlying cause of such liability originates from the Customer’s conduct.

14.5. SOMA shall inform the Customer without undue delay of any indemnification claim. The Customer shall, at its own expense, support SOMA appropriately in the defence against such claims and provide all information reasonably required.

15. Data protection 

15.1. SOMA processes personal data collected in the course of the business relationship with the Customer (such as contact details, billing information and communication data) in accordance with SOMA’s privacy policy, available under www.somareality.com/privacy.

16. Confidentiality Obligation 

16.1. For the purposes of this Contract and the GTC, “Confidential Information” shall mean all information, documents, data and materials of a technical, commercial, financial, legal or organisational nature disclosed by one Party to the other Party in connection with the Contract, irrespective of the form of disclosure (written, electronic, oral or otherwise) and shall in particular include, but not be limited to:

(i) information relating to the Software and Related Services and its functionalities;

(ii) business and trade secrets;

(iii) contractual terms and conditions, including prices, fees, discounts and commercial arrangements;

(iv) technical documentation, specifications, concepts and know-how.

16.2. Each Party undertakes to keep all Confidential Information strictly confidential and to use such Confidential Information exclusively for the purposes of performing the Contract (“Confidentiality Obligation”). 

16.3. The Confidentiality Obligation shall not apply to information which the receiving Party can prove:

(i) is or becomes publicly known without breach of this Contract;

(ii) was lawfully known to the receiving Party prior to disclosure;

(iii) is lawfully disclosed to the receiving Party by a third party without a confidentiality obligation;

(iv) must be disclosed due to mandatory statutory provisions, court orders or binding administrative decisions; or

(v) must be disclosed to the extent necessary for the assertion or defence of legal claims in judicial or administrative proceedings.

16.4. Where legally permissible, the receiving Party shall notify the disclosing Party in advance of any mandatory disclosure.

16.5. The receiving Party may disclose Confidential Information only to such employees, representatives or contractors who need to know such information for the performance of the Contract, provided that such persons are bound by confidentiality obligations at least equivalent to those set out in this Section 16. The receiving Party shall remain fully responsible for any breach of confidentiality by such persons.

16.6. Upon termination of the Contract, the receiving Party shall, at the disclosing Party’s request, return or irreversibly destroy all Confidential Information, including any copies thereof, unless statutory retention obligations require otherwise.

16.7. The Confidentiality Obligation shall apply during the term of the Contract and shall remain in force for a period of five (5) years after termination of the Contract, regardless of the reason for termination, unless mandatory statutory provisions dictate otherwise.

17. Final provisions 

17.1. These GTC and the Contract are subject to Austrian law under exclusion of the UN Convention on Contracts for the International Sale of Goods and the conflict of laws rules of private international law.

17.2. All disputes arising out of or in connection with these GTC and the Contract shall be referred to the court in Vienna having jurisdiction in commercial matters.

17.3. The place of fulfilment under the GTC and the Contract is the registered seat of SOMA.

17.4. Should any provision of these GTC or the Contract be or become invalid, illegal or unenforceable in whole or in part, this shall not affect the validity, legality and enforceability of the remaining provisions. The invalid, illegal or unenforceable provision shall be separated from the remaining provisions, which shall remain valid. Statutory provisions shall apply in place of the invalid, illegal or unenforceable provision.