between the project partner and
Faßziehergasse 5 / 16, 1070 Vienna, AT
SPOTTERON GmbH will provide a toolkit for the Partner as agreed for an official quotation for the project's scope, sent to the partner via eMail or postal mail.
The Service consists of the
Summary of the Service:
|For SPOTTERON||For the Partner|
|SPOTTERON will develop the applications, websites and tools for the Partner and provide them on the platform’s infrastructure||The Partner will provide all necessary content, media and translations for the design and development of the applications and/or website|
|SPOTTERON will provide ongoing service support for the Partner and will maintain and provide updates for the applications and website content management systems||The Partner will use the applications, the Service, tools and the websites only in their intended way and within the scope, purpose and topic of the project.|
|SPOTTERON will provide the full infrastructure for the project and it’s ongoing maintenance during the whole runtime of the project||The Partner will use the provided infrastructure of the project only for the scope of the project under a fair-use condition|
|SPOTTERON will only hold ownership only for creative works and designs, created during the project’s design and development and provide an unlimited right of use for the Partner for those||The Partner can freely choose under which license the data-set of the project is published/maintained (e.g. Full ownership or Open Data, etc.) and holds all rights regarding a project’s outcomes and publications|
|SPOTTERON will not interfere with the data, collected in the project and provided by the Partner for the use in applications or websites||The Partner is responsible for all data of the project and agrees to ongoing maintain it via the provided Data Administration Interface|
|SPOTTERON extends the platform with new features for the partner and shares such new functionalities with all other partners on the platform||The Partner can use all existing features without extra development costs in the applications of the Partner’s project from start|
Runtime Support: For the runtime period beginning on the Effective Date, and at SPOTTERON GmbH's own expense, SPOTTERON GmbH shall provide the Partner with electronic support (eMail, scheduled Skype call) during SPOTTERON GmbH's normal business hours in order to help the Partner locate and correct problems with the Service and any related software.
Renewed Support: After the initial Service runtime period, the Partner may elect to renew SPOTTERON GmbH's service runtime for additional periods of minimum 12 month at SPOTTERON GmbH's then-current service rates of the SPOTTERON package provided.
SPOTTERON GmbH shall provide bug fixes, corrections, modifications, enhancements, upgrades, and new releases to the Services to ensure the best possible level of functionality of the Services including but not limited to, the Services conforming in all material respects to the specifications, functions, descriptions, standards, and criteria. The Services runtime fees of the SPOTTERON package are inclusive of the fees for regular maintenance and updates within the SPOTTERON Platform update cycles.
If not agreed otherwise, the payment of the SPOTTERON Package is 33% of the full sum at the start of the development phase of the project (“Kick-Off Payment”) and 67% on the release of the apps. SPOTTERON GmbH will provide invoices for both payments.
Payment amounts under this Agreement do not include Taxes, and the Partner shall pay all Taxes applicable to payments between the parties under this agreement. For EU based partners with a UIN number, SPOTTERON GmbH provides invoices VAT free.
Any amount not paid when due will bear interest from the due date until paid, at a rate equal to 2% per month (24% annually) or the maximum allowed by law, whichever is less.
Applicable Levels: SPOTTERON GmbH shall provide the Service to the Partner with a system availability of at least 96% during each calendar year. Please note that per-user availability can also depend on the connectivity of the party accessing the Services and in such cases it will not count against the system availability.
System Maintenance: SPOTTERON GmbH may take the Service offline for scheduled or emergency maintenance. Scheduled maintenance time will not count against System Availability.
Percentage of Minutes per Month: "System Availability" means the percentage of hours in a year that the key components of the Service are operational.
Not Included in "System Availability: "System Availability" will not include any minutes or hours of downtime resulting from
In this Clause:
“Controller”, “Personal Data”, “Processing” and “Processor” or “Data Processor” have the meanings given in Data Protection Law and “Process” shall be interpreted accordingly; and
“Data Protection Laws” means any applicable law, statute, subordinate legislation regulation, order, mandatory guidance or code of practice, judgment of a relevant court of law, or directives or requirements of any regulatory body which relates to the protection of individuals with regard to the processing of Personal Data, with the EU General Data Protection Regulation (GDPR) as the governed regulation.
9.1) SPOTTERON will provide the Service with user registration and identification for the project and processes personal data as part of the Service as Controller. The personal data for login/registration purposes, if not being publicly accessible already, are not shared with the partner.
9.2) SPOTTERON will collect the data from user’s inputs and user generated content and will make it available to the Partner in an anonymized and aggregated format. The definition of what kind of data is collected by the project, and if the data definition contains elements of personal data, is made by the partner in the project’s definition phase and SPOTTERON only takes the role as Data Processor in this matter, not Controller.
The Parties agree the following in relation to any Data to be shared:
9.3 Data use: the Partner may license, store and distribute exported Data (a Data-set) in any way chosen only after a full anonymization or deletion of all personal data of the users in the Data-set, including when releasing data publicly, e.g. under OpenData licenses.
9.4 Personal data protection: the Partner guarantees to have safeguards mechanisms in place to protect the personal data of participating user (Participants) and ensure the internal use only of personal data, either in exports or via administration interface access.
9.5 User generated content license: the Partner agrees that all user generated content (UGC) worthy of protection by intellectual property laws is licensed under Creative Commons CC:0 license and will not be distributed or used under another license.
9.6) During the term of this Agreement, it is acknowledged that each party may disclose to the other Personal Data (“Disclosed Data”) for the purposes of the management and administration of this Agreement (including the performance of its obligations and the exercise of its rights). The parties agree that such disclosure is fair and lawful and does not contravene the Data Protection Law; that it shall use Disclosed Data received from the other party only for the Purpose; and that it shall otherwise comply with its obligations under the Data Protection Law. Each party will promptly inform the other upon becoming aware of any Personal Data breach relating to any Disclosed Data received by it from the other party.
Both parties agree to name the other in press releases, online articles and publications with the full name, homepage link and logo if possible (not binding). On website items in relation to the Project, both parties will use HTML links (a href) for the name and / or homepage link without rel=”nofollow” tag. On social media, posts regarding the Project will tag and link (@partneraccountname) both parties if possible (not binding).
The parties shall continue to be bound by the terms of the non-disclosure agreement between the parties if existing for the Project.
No Representation by SPOTTERON GmbH: SPOTTERON GmbH makes no representation or warranty as to the accuracy or reliability or use of the service outside EU regulations and National State laws of Austria.
the Partner Status: the Partner represents and that it is not located in, under the control of, or a national or resident of any country to which the EU or Austria has embargoed the import or export of goods or provision of services.
Service Warranty: SPOTTERON GmbH will provide the Service in a professional manner consistent with general industry standards.
Performance Warranty: SPOTTERON GmbH warrants that the Service will perform substantially in accordance with the Documentation of functionalities in the Partner Forum at https://www.spotteron.net/forum and on https://www.spotteron.net/citizen-science-app-features
Warranty Disclaimer: SPOTTERON GmbH does not guarantee that the Service will be error-free, virus-free, or uninterrupted. SPOTTERON Gmbh will not be liable for any unauthorized alteration, theft, or destruction of any of the user’s or Partner’s data.
17.1) Content provided by SPOTTERON: SPOTTERON GmbH will retain all interest in and to the Services, including all documentation, modifications, improvements, upgrades, derivative words, and all other Intellectual Property rights in connection with the Service and Platform, including SPOTTERON GmbH's name, logos and trademarks reproduced through the Service. SPOTTERON agrees to indemnified against all liabilities, costs, claims, losses, and expenses assessed against, or incurred by, the Partner as a result of, or in connection with, any claim brought by a third party against the use of such material, provided by SPOTTERON for the project.
17.2) Content provided by Partner: The Partner retains all interest and ownership of all content, the Partner provides to SPOTTERON for the purpose of being used in a partner’s project. The Partner agrees just to provide source material in any form to SPOTTERON, that is under full intellectual property of the Partner or which is licensed correctly to be legally used in the production and publishing of the Partner’s tools, websites and software. The partner is liable for all media and content provided to SPOTTERON for further use in the Partner’s project and agrees keep SPOTTERON indemnified against all liabilities, costs, claims, losses, and expenses assessed against, or incurred by, SPOTTERON as a result of, or in connection with, any claim brought by a third party against the use of such material, provided by the Partner for the project.
17.3) Data and User Generated Content:
17.4) Outcomes of the project: The Partner will own the Intellectual Property rights in any material (including any findings, academic publications, teaching material and research) that the Partner creates by interpreting and analysing the anonymized data-set.
Pay Outstanding Amounts: the Partner shall immediately pay to SPOTTERON GmbH all amounts outstanding as of the date of, and any amounts outstanding as a result of, termination.
Discontinuance of Use: the Partner shall cease all use of the Service upon the effective date of the termination.
Recovery of Data: the Partner will have 14 days from the date of termination to retrieve any data that the Partner wishes to keep in the SPOTTERON Administration Interface as CSV download.
Cooloff-Period: for the Smartphone Apps and interactive web-app, SPOTTERON GmbH guarantees a continuation of the service for 14 days after termination if requested by the Partner to inform the users of the partners SPOTTERON package.
Following expiration of the Initial Term, the Partner may renew this Agreement for additional successive terms upon the Parties agreeing in writing to so renew. The minimum length of such a renewed term is 12 month, if not agreed otherwise by the parties
Subject to Clause 22, the Partner agrees to defend and indemnify SPOTTERON GmbH against any third-party claims in any way related to the use of the Service, including any costs, expenses, damages, demands, loss, lawsuits, including judgments and attorney fees actually incurred for damages to property, injury or harm to life of third parties resulting or arising from the use of the Service, except where such claims arise from the negligence or willful misconduct of SPOTTERON GmbH
Mutual Limit on Liability: Neither party will be liable for breach-of-contract damages suffered by the other party that are remote or speculative, or that could not have reasonably been foreseen on entry into this Agreement.
Maximum Liability: Neither party’s liability under this agreement will exceed the fees paid by the Partner under this agreement during the full runtime of the Partner’s project.
Liability for public use: SPOTTERON GmbH is not liable for any use of the Service, content and software by the participants (users) or partners, or for uploaded User-generated Content or content uploaded by administrators of the project, or for any infringements or damage or accidents during use of the applications, tools or software by users or by the partner and his associates.
Liability for content, provide by the partner(s): SPOTTERON GmbH is not liable for infringements or damage caused by any violation of intellectual property laws or misuse of licenses in relation to content, provided by the Partner for the use in the project’s software or website, nor for uploads by the partner and his associates in applications or the content management system (CMS) of the project‘s website(s).
Liability for content, provided by users in the partner’s app: For all user-generated content (UGC) uploaded in the project, the sole liability lies with the Partner. The Partner has access to the SPOTTERON Data Administration Interface and agrees to ongoing monitor and moderate all data, media objects and user-generated content. This also includes monitoring and moderating the comments by users on data points and other interactive sections in the according panels of the Data Administration Interface.
Whenever the Partner receives notice or take-down requests by a third party, SPOTTERON Gmbh must be informed within 2 workdays with the full notice or request included and immediate steps have to be taken by the Partner to solve the situation by unpublishing/deletion of the UGC in question.
Liability for breaches of third-party Intellectual Property Rights: SPOTTERON will keep the Partner indemnified against liabilities as a result of claims, brought by a third party against the Partner that the supply of the Services, provided directly by SPOTTERON infringes a third party’s Intellectual Property Rights. In the event that such a claim arises, the Partner will:
promptly notify SPOTTERON of any such claim;
If either party wishes to bring in an additional partner for this Project, SPOTTERON and the Partner must agree to this in writing. The terms and conditions applicable to the new partner, including in relation to ownership of Intellectual Property under the Agreement, must be agreed between the existing parties to this Agreement prior to the new partner becoming a party to this Agreement.
If the Project is promoted and used actively in another country then the one, the original Partner is located, the regular run-time fee applies to every country an additional partner is promoting the project at as extended Reach. The invoicing of such additional run-time costs on a per country/additional partner level can be provided by SPOTTERON directly or as invoicing the original Partner c ollectively. The additional run-time fees are always billed for a one year run-time in advance.
This agreement begins with the launch date of the tools provided (smartphone app; website; other tool) and will continue if not terminated until the included run-time is expired, unless renewed as set out in clause 20.
"Authorized Users" means the list of Persons authorized to use the Services under this agreement as sent by email by the Partner.
“Administrator” means user accounts, that are used by the partner to maintain, add, change, delete or export any form of data or content on the Service
"Business Day" means a day other than a Saturday, a Sunday, or any other day on which the principal banks located in Vienna, Austria are not open for business.
"Confidential Information" has the same meaning in this agreement as the term has under a Non-Disclosure Agreement between the parties
"Data” means the Data on the SPOTTERON platform, including the User generated content in the application or software of the Project.
“Data Results" means all of the data the Partner creates with or uses with the Service, or otherwise related to the Partner's use of the Services.
"Disclosure Schedule" means the schedules delivered, before the execution of this Agreement, by each party to the other party which list, among other things, items the disclosure of which is necessary or appropriate either in response to an express disclosure requirement contained in a provision of this Agreement or as an exception to one or more of the representations or warranties made by the party, or to one or more of the covenants of the party.
"Effective Date" starts with the first public launch of any of the project’s software tools (apps, website, other tools).
“Fair use” means an amount of usage by the Project, that does not overload or interfere with the infrastructure, or which generates additional costs for SPOTTERON for the use of external services like e.g. map servers and data hosting.
"Governmental Authority" means
(a) any federal, state, local, or foreign government, and any political subdivision of any of them,
(b) any agency or instrumentality of any such government or political subdivision,
(c) any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that its rules, regulations or orders have the force of law), and
(d) any arbitrator, court or tribunal of competent jurisdiction.
"Intellectual Property" means any and all of the following in any jurisdiction throughout the world
(a) trademarks and service marks, including all applications and registrations, and the goodwill connected with the use of and symbolized by the foregoing,
(b) copyrights, including all applications and registrations related to the foregoing,
(c) trade secrets and confidential know-how,
(d) patents and patent applications,
(e) websites and internet domain name registrations, and
(f) other intellectual property and related proprietary rights, interests and protections (including all rights to sue and recover and retain damages, costs and attorneys' fees for past, present, and future infringement, and any other rights relating to any of the foregoing).
(a) any law (including the common law), statute, by law, rule, regulation, order, ordinance, treaty, decree, judgment, and
(b) any official directive, protocol, code, guideline, notice, approval, order, policy, or other requirement of any Governmental Authority having the force of law.
"Legal Proceeding" means any claim, investigation, hearing, legal action, or other legal, administrative, arbitral, or similar proceeding, whether civil or criminal (including any appeal or review of any of the foregoing).
"License Grant" is defined in section [GRANT OF ACCESS AND USE OF SERVICE].
"Order" means any decision, order, judgment, award, or similar order of any court of competent jurisdiction, arbitration panel, or Governmental Authority with jurisdiction over the subject matter, whether preliminary or final.
“Participant” means a user, active in the Partners application with at least one content contribution.
“Partner content“ or „Content provided by partner“ means all text, image or other content protected by intellectual property laws or licensed under an open license like Creative Commons variants, which the partner provided to be used in the applications or website of the Project.
"Permits" means all material licenses, franchises, permits, certificates, approvals, and authorizations, from Governmental Authorities necessary for the ownership and operation of the party's business.
(a) any corporation, company, limited liability company, partnership, Governmental Authority, joint venture, fund, trust, association, syndicate, organization, or other entity or group of persons, whether incorporated or not, and
(b) any individual.
“Platform” means the combined software, infrastructure, designs and data of SPOTTERON, provided in form of a customized services for the Partner
“Project” means the topic, Reach, use-case and current scope of the Partner’s application and / or software.
“Reach” means the geographical, state or country-based area of active operation and / or promotion of the Project.
"Service" is defined in section GRANT OF ACCESS AND USE OF SERVICE.
"System Availability" is defined in section SERVICE LEVELS.
"Taxes" includes all taxes, assessments, charges, duties, fees, levies, and other charges of a Governmental Authority, including income, franchise, capital stock, real property, personal property, tangible, withholding, employment, payroll, social security, social contribution, unemployment compensation, disability, transfer, sales, use, excise, gross receipts, value-added and all other taxes of any kind for which a party may have any liability imposed by any Governmental Authority, whether disputed or not, any related charges, interest or penalties imposed by any Governmental Authority, and any liability for any other person as a transferee or successor by Law, contract or otherwise.
"Term" is defined in section TERM.
“User generated content” means any form of contribution by a registered or unregistered user account in the applications or software of the project, provided by SPOTTERON GmbH.
"Viruses" is defined in section PARTNER OBLIGATIONS.
END OF AGREEMENT