These Terms and Conditions govern your access and use of the agreed products and services provided to you and is an agreement between Lywand Software GmbH, located in Austria, Josefstrasse 46a/6, A-3100 St. Pölten ("Lywand") and you or the company you represent ("you"). In these License Terms, "we", "us" or "our" means Lywand and its affiliates.
As an integral part of the Contract, these General Terms and Conditions shall govern shall govern the provision by Lywand it Cyber Assurance and Security Automation services and products for the relevant Orders. Any deviations from or amendments or supplements to these General Terms and Conditions shall only be valid if they have been accepted by Lywand in writing.
Scope of services
The scope of services depends on the respective offer Lywand renders the respective services owed according to the current state of the art to the best of its knowledge and belief.
The services to be provided are those specified in the offer in accordance with the General Terms and Conditions specified herein. All additional services, deliveries and support by Lywand are to be agreed separately.
Events that are unforeseeable, unavoidable and beyond Lywand's control, such as force majeure, release Lywand from its obligations for their duration. Agreed deadlines will be extended by the duration of the disruption; the customer will be informed in an appropriate manner after the occurrence of the disruption. If the end of the disruption is not foreseeable or if it lasts more than three months, each party has the right to terminate or revoke the contract.
Rights of use
During the provision of Lywand services and products you do not acquire any rights to tools, software, programs or methods used by Lywand.
On demand and for the duration of the services used, which are covered by this agreement, you are provided with a Simple, non-transferable, non-sublicensable, legal, revocable or specially adapted right to use the SaaS software of Lywand.
You are granted a simple, non-transferable right to use any deliverables that Lywand creates in connection with the Services provided. Lywand has the right to use the acquired know-how in the course of providing agreed services, at its own discretion, whether in its own interest or in the interest of third parties. Know-how refers to specific knowledge gained from operational and technical experience. Your data or specific information are not considered part of this know-how. Lywand is entitled to use this know-how also on behalf of third parties.
For the time during which Lywand provides the agreed services, you will receive online access to the Lywand portal. You will treat the access data provided to you for this purpose confidentially and will not pass them on to third parties. You arrange for appropriate technical precautions to prevent malware (Trojans, viruses) from entering the portal. It is important that users log out of the password-protected area after each use. If you become aware that third parties are misusing the login data, please inform Lywand immediately.
Rights of use
Within the selected license period you are authorized to use the Lywand portal to check the IT security of your company. Checking domains or IP addresses of third parties is explicitly prohibited.
Customer's duty to cooperate
You shall provide Lywand with all necessary information in due time so that Lywand can implement and provide the agreed services accordingly. You shall inform Lywand about all known events, circumstances and changes that may have a possible negative impact on the implementation and provision of the services.
Lywand is not obliged to verify the quality or accuracy of your cooperation or the correctness or completeness of your information.
Lywand will provide the agreed services for the term specified in the offer. If no term is specified in the offer, Lywand will provide the services according to the conditions in the offer for an indefinite period of time.
The right to extraordinary termination for good cause remains unaffected. In particular, there is good cause if (i) a party repeatedly breaches its obligations in relation to these Terms and Conditions (ii) a petition is filed to initiate bankruptcy proceedings against your assets, such petition has been rejected for lack of assets, enforcement actions against you have been unsuccessful, or enforcement actions have been implemented and not declared void within one month.
Any notice of termination must be in writing. E-mails do not fulfill the written form requirement.
Lywand endeavors to take the greatest possible care with regard to its systems and takes appropriate measures for data and system security in this respect. However, the contractual partner is aware and accepts that the use of vulnerability scanners may in principle lead to a crash or temporary inaccessibility of the IT infrastructure, e.g. of servers. Such situations do not constitute a defect or damage in the legal sense.
In general, however, claims for damages are limited to damages caused by Lywand and its affiliated companies or licensors intentionally or through gross negligence. In case the contracting party is an entrepreneur within the meaning of § 1 para 2 Consumer Protection Act, this limitation of liability also applies in case of simple gross negligence. Claims for damages in case of slight negligence are excluded. If this limitation of liability is not permissible, e.g. vis-à-vis consumers within the meaning of § 1 para 2 Consumer Protection Act, the liability for cases of slight negligence shall be limited to the order value - in case of a contract term exceeding one year to the order value for one calendar year.
Lywand and its affiliates or licensors shall not be liable for any direct, indirect, incidental, special, exemplary or consequential damages (including damages for loss of profits, revenue, goodwill or data) arising out of the subject matter of this Agreement, even if a party has been advised of the possibility of such damages - including but not limited to loss of revenue, anticipated profits or lost business and even if the damages were not reasonably foreseeable.
Neither we, our affiliates, nor our licensors (hereinafter simplified as "Lywand") shall be liable for any damages, reimbursement, or harm related to: (a) your failure to use the Agreed Services, including but not limited to, as a result of (i) any suspension of your use of or access to the Services, (ii) our discontinuance of one or more Services, or (b) unplanned or unforeseen downtime of all or part of the Agreed Services for any reason.
Under no circumstances will Lywand be liable for any breach of duty occurring under any contract which Lywand has arranged and to which Lywand is not a party. Under no circumstances will Lywand be liable for damage caused by services, companies or persons provided by Lywand to the contracting party. Under no circumstances will Lywand be liable to the other party or any third party (including, but not limited to, the other party's own contractors and customers) for any consequential, indirect, special, punitive or incidental damages or lost profits of the other party or its successor in title arising out of the breach or non-performance of any express or implied warranty, breach of contract, misrepresentation, negligence, strict liability, tort or otherwise.
Furthermore, the exclusion of liability does not apply to claims under the Product Liability Act and not to damages attributable to Lywand resulting from injury to body or health or in case of loss of life of the contractual partner. All claims of the contractual partner for reimbursement of expenses and indirect damages are also completely excluded.
The above exclusions and limitations of liability apply to the same extent in favour of the organs, shareholders, legal representatives, employees and other vicarious agents of Lywand.
Updates and support
Updates and support are free of charge within the selected license period after activation. Within the selected period you will receive support via e-mail and telephone during our business hours.
Any transfer of rights or assignment of obligations under this agreement by you to third parties requires prior written consent by Lywand.
Subsidiary agreements, representations and other agreements, including amendments and supplements, must be in writing to be effective. All changes and additions to this agreement, especially verbally agreed changes and decisions, must be in writing in order to be effective. Written confirmation of changes or amendments may only be made by authorized representatives of Lywand.
The law of the Republic of Austria shall apply to all legal relations between the parties.
The exclusive place of jurisdiction for all disputes between the party in connection with this agreement or an offer shall be the competent court for the head office of Lywand Software GmbH in St. Pölten Austria.
Should individual provisions of this agreement become ineffective or should a loophole occur in the provisions, this shall not affect the validity of the remaining provisions.