General Terms and Conditions

Last updated: January 1^st, 2023

1. Preamble and applicability

1.1 These General Terms and Conditions ("Terms", "GTC") govern the relationship between dcupl GmbH ("dcupl", "us", "we" or "our"), Peter-Behrens-Platz 2, 4020 Linz, registered with the Linz Provincial Court as Commercial Court under FN 586926b, on the one hand, and business customers (B2B) on the other hand, as a fundamental part of any contract between you and dcupl and any user registered on our website www.dcupl.com or console.dcupl.com. We offer certain SaaS-based Services provided on any dcupl Services application (the "Service" and/or the "Performance"), operated by dcupl. The Service includes cloud-based provision of data and an interface that allows users to upload, manage and publish data and its technical descriptions (model definitions) using dcupl.

1.2 Your access to and use of the Services is conditional upon your acceptance of and compliance with these GTC and dcupl's privacy policy/statement. These GTC apply to all visitors, users, affiliates and others who access or use current and future Services and Performances. By accessing or using the Services and Performances provided by us, and by clicking the "I accept" button or other mechanisms provided, you agree to be bound by these terms. Please read these GTC carefully before using the Services provided by dcupl. If you do not agree to these terms or any part of them, do not access or use our Service.

2. Definitions

• "Account" means one registered user with a unique email-address or Single-Sign-On (SSO). In one account you can create or belong to multiple projects and invite other accounts to such projects using their Account Identification.
• "Account identification" means a unique identification to one specific account (system generated ID or Single-Sign-On-ID or email-address solely).
• "Billing cycle" means period covered by one invoice of dcupl to customer.
• "Customer" means all natural or legal persons who use dcupl Services ("Services and Performances") or create an "Account”. Unless it is explicitly mentioned “Self-Service Customer” and “Enterprise Customer”, the following provisions apply to all Customers.
• "Documentation" means instructions, either printed or digital, online help files, technical documentation, and user guides in order to use the Service and Performances of dcupl.
• "Order form" means the document containing the commercial details of the agreement between the parties.
• "Professional service" means all services that are not SaaS-based services and performances.
• "Projects" means a data repository with its own models, data and data sources, assets, environments and project configurations, accounts, and permissions.
• "Project data" is the data that is released, made available or transmitted by the Customer to dcupl in connection with the use of the Services and Performances.
• "Registration" means the full process of a Customer giving necessary information about his identity and confirmation as requested during the Account creation-process on a dcupl application.
• "Self-Service Customer" means customers who are subscribing to dcupl's Services via dcupl self-service-checkout (console.dcupl.com).
• "Subscription" means any use of dcupl's Services via a recurring payment period with automatic renewal.
• “Services" or "Services and Performances" means the SaaS-based data management system (including the dcupl APIs and documentation) along with updates or upgrades provided by dcupl.
• "Subscription" means any use of dcupl's Services via a recurring payment period with automatic renewal.
• "User" means any person using dcupl Services registered on either www.dcupl.com or console.dcupl.com.

3. Account registration / Password security

3.1 After having read and accepted the GTC, the Customer is entitled to register for a dcupl Account in order to use all Services and Performances of dcupl. For this purpose, it is necessary to provide all the data requested in the registration screen, in particular a valid email address and password. The Customer is obliged to keep the email address valid during the use of the dcupl Services.

3.2 After the Customer has entered the data and clicked on "Register", we confirm receipt of the Customer's registration by an automatically generated email. In a separate email or by granting access to the dcupl services, we accept the registration.

3.3 Simultaneously with the access to our Services and upon full payment of the subscription fees, the Customer obtains a temporary, worldwide, non-exclusive and non-transferable license to use the dcupl Services, exclusively to perform the functions defined in the Documentation and subject to all limitations (https://docs.dcupl.com/docs/basics/technical-limits/) and restrictions contained herein. The dcupl Services may only be used with a valid account. Such account may not be shared by multiple users.

3.4 The Customer is responsible for securing the password and/or all access data for the use and access to the Account and/or for all activities or actions related to the Account. Customer agrees not to disclose or share the password. Customer shall notify us immediately if it becomes aware of or suspects any breach of security or any unauthorized use of or access to the Account.

3.5 The Customer is solely responsible for a. the use of dcupl Services and Performances through the Account, whether or not he is authorized to do so; b. for compliance with data protection regulations; c. the accuracy, legality and integrity of the project data; d. not to violate any applicable law, including but not limited to intellectual property rights, unfair competition rights and personal rights of third parties; e. compliance with the instructions given by dcupl; f. secure all data and information used in connection with the Services and Performances; and g. the use of the current version of the APIs or SDKs (see 9.5).

3.6 The Customer is prohibited from acting as a reseller for dcupl.

3.7 In case (even without Customer’s fault) of infringement or use of the dcupl Services contrary to any terms or any contract concluded between Customer and dcupl or applicable law dcupl reserves the right to immediately, without prior notice, suspend such account and/or space(s) and/or Customer’s access to the dcupl Services.

4. conclusion of contracts

4.1 Offers by dcupl are subject to change without notice, unless they are expressly designated as binding.

4.2 A contract can only be legally concluded by an expressly declared order form.

4.3 Information provided by our employees, on our website or in advertising materials, as well as requests for quotations, specification emails or other documents of the Customer are non-binding and shall only become part of the contract if expressly referred to in the order form. Conditions that are not mentioned in the order form are to be considered null and void.

5. Subscription - prices/fees - changes

5.1 The contract term/subscription period is specified in the order form. In this Order Form, the Customer is given a specific period of time; the agreed period of time constitutes the term and the Customer is contractually obligated to pay the subscription fees specified in the Order Form. The mutually agreed prices specified in the order form are binding for the agreed contract period.

5.2 Unless otherwise agreed, each Contract or Subscription shall be automatically renewed for the term indicated in the Order Form, unless the Customer notifies dcupl in writing (billing@dcupl.com) at least thirty (30) days before the expiry of the current term that it does not wish to renew. If the Customer fails to give such written notice, the Subscription or Contract Term will automatically renew on the same terms (notwithstanding the applicable clause 5.4). Such renewal shall be considered as a continuous contract period.

5.3 The Customer is obliged to provide dcupl with correct and complete billing information, including the company name, the full name of the contact person, the address, the state, the postal code, the country, the telephone number, the email address and the VAT identification number (or a comparable number). Incorrect or incomplete information may result in additional work for dcupl, which will be charged to the Customer.

5.4 All prices quoted are non-binding and are exclusive of VAT, unless otherwise stated. dcupl may, at its sole discretion and at any time, change the subscription fees. Changes will take effect at the end of the current contract term; price changes will be charged from the subsequent contract term. Unless expressly agreed, renewal prices will not be adjusted on the basis of special subscriptions (promotional or one-time price subscriptions), but on the basis of dcupl's standard list price in force at the time of each renewal. Any renewal in which the subscription volume for a service has decreased compared to the previous term will result in a price adjustment for the renewal period, without taking into account the unit price of the previous term.

5.5 dcupl charges subscription fees, additional usage fees and other fees or prices specified in the Order Form or based on the Customer's actual usage of the dcupl Services.

5.6 Paid subscription fees are non-refundable.

6. Payment

6.1 Payment shall be made in accordance with the order form. Unless otherwise agreed, our invoices are generally due for payment annually in advance, free of charges and deductions, and are payable within ten (10) days of the invoice date. Bank transfers are not considered paid until the money has been received in dcupl's bank account. dcupl reserves the right to correct errors even if an invoice has already been issued or payment has been received. If the Customer does not object to the invoice within ten (10) days, the invoice shall be deemed approved.

6.2 All prices are exclusive of taxes; the Customer is obliged to pay the taxes shown on the invoice and is not entitled to withhold taxes from amounts due. dcupl is not responsible for taxes imposed on the Customer due to the consumption of goods and services. dcupl is not responsible for any other taxes, levies, duties, permits, tariffs, fees or other charges of any kind. dcupl reserves the right to challenge the assessment of taxes by the tax authorities.

6.3 In the event of default in payment by the Customer, we shall be entitled, at our discretion, to demand compensation for the damage actually incurred or the default interest rate. The default interest rate shall be 9.2% p.a. above the prime rate for the marginal lending facility set by the ECB, but at least 8%. The Customer undertakes to reimburse the dunning and collection costs incurred in the event of default in payment by the Customer, insofar as they are necessary for appropriate legal action.

6.4 If the Customer defaults on a payment, dcupl is entitled to demand immediate payment of all outstanding invoices for accrued services and performances (even if these are not yet due) and/or to demand advance payments or appropriate securities for future services from dcupl. Offsetting with counterclaims of the Customer is only possible if these counterclaims are not disputed or are legally established.

6.5 If you are in default of payment or if the use of the Services and Performances exceeds the amounts paid in advance, dcupl is also entitled to block your account with fourteen (14) days notice. Other rights and remedies are expressly reserved. dcupl shall not be liable for any damages, losses, loss of data or profits, or any other negative effects that may result from a suspension under this provision.

7. Self-service

7.1 The dcupl Services may be available via self-service. Customers who have subscribed to the dcupl Services through the dcupl Self-service checkout (console.dcupl.com) are considered Self-Service Customers. This Section 7 applies only to such Self-Service Customers. In the event that any of the rules set forth in this Section 7 conflict with any other part of these GTC, this Section shall prevail over the corresponding part of the GTC.

7.2 A Contract shall become legally effective and binding upon the first successful payment of the Subscription Fee by the Self-Service Customer. The Subscription Fee shall be billed to the Self-Service Customer in advance on a recurring and periodic basis ("Billing Cycle"). The Self-Service Customer may select a monthly or annual billing cycle during the self-service checkout process. Subscription fees are payable according to the license plan selected in the self-service checkout.

7.3 The Self-Service Customer has the option to use the dcupl Services for a limited or unlimited period of time. If the Self-Service Customer chooses a limited subscription period (e.g. one year), this subscription period is automatically extended by the term corresponding to the subscription period selected in the subscription process, unless the Self-Service Customer cancels the extension of the subscription 30 days before the expiry of the current subscription period. If the Self-Service Customer selects an indefinite subscription period, either party shall be entitled to terminate the Agreement by giving 30 days' notice to the end of the selected billing period. Termination of the Services and Performances and/or the Customer Account can be carried out within the scope of the above-mentioned options via the account and the corresponding administration tools.

7.4 A valid payment method, including credit card, is required to process payment for the Self-Service Customer's Subscription. Self-Service Customer must provide dcupl with accurate and complete billing information, including company name, full contact name, address, state, zip code, country, telephone number, mailing address, sales tax identification number (or equivalent), and a valid payment method. By submitting this payment information, the Self-Service Customer automatically authorizes dcupl to bill all subscription fees incurred through his account using these payment methods. Incorrect or incomplete information may result in additional work for dcupl, which will be charged to the Self-Service Customer.

7.5 In the event that automatic billing fails for any reason, dcupl will issue an electronic invoice requesting the Self-Service Customer to manually make full payment for the billing period indicated on the invoice within a specified date.

7.6 dcupl may change the Subscription Fees at its sole discretion and at any time. Any change in the Subscription Fees will take effect at the end of the current billing period; the adjusted prices will be charged as of the following billing period. The Self-Service Customer's continued use of the dcupl Services after the effective date of the modified Subscription Fees shall be deemed to be the Self-Service Customer's acceptance of the modified Subscription Fees.

7.7 Notwithstanding clause 9.3, dcupl shall provide its services and performances with the best possible availability of approximately ninety-five (95) percent on an annual average.

7.8 The Customer grants dcupl the right, free of charge, to use the Self-Service Customer as a reference on the Website or in other online or print media, as well as on all (social) media platforms. dcupl may use company names (in whole or in part), logos, trademarks and the like for advertising and/or marketing purposes. dcupl may issue a press release announcing the Self-Service Customer's selection of the Service. The text of the press release is subject to dcupl's sole discretion.

7.9 dcupl reserves the right, at its sole discretion, to modify or replace these GTC at any time. If a change is material, we will attempt to provide notice at least thirty (30) days prior to the effective date of the new terms. What constitutes a material change will be determined in our sole discretion.

7.10 By continuing to access or use the dcupl Services after the entry into force of these amendments, the Self-Service Customer agrees to the amended Terms. If the Self-Service Customer does not agree to the new terms, he/she must stop using the Service.

8. Free Trial Offer

8.1 dcupl may, at its sole discretion, offer a subscription with a free trial period for a limited time.

8.2 dcupl reserves the right, at any time and without notice, to (i) modify the terms and conditions of the Free Trial Offer or (ii) terminate the Free Trial Offer at any time.

8.3 The Customer acknowledges that its data may be deleted at any time and assumes responsibility for data backup. dcupl assumes no liability for damages resulting from the loss (even partial) of data or information.

8.4 In the case of free trials, dcupl shall not be liable for any damages. dcupl does not guarantee any specific results whatsoever or any specific performance. dcupl does not guarantee that the services as part of the free plan will be free of bugs or errors.

9. Services and availability

9.1 The Service is provided on an "AS IS" and "AS AVAILABLE" basis. The Service is provided "AS IS" and "AS AVAILABLE" without warranty of any kind, either express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance. dcupl does not warrant that the Services and performance will be compatible with the software or hardware and IT environment used by the Customer.

9.2 dcupl provides the Services and Performances conscientiously and with reasonable care and in accordance with the Order Form.

9.3 dcupl provides the Customer with the dcupl Services with the best possible availability of up to ninety-nine point nine (99.9) percent on an annual average, depending on the selected Licensing Plan, and grants the Customer a non-exclusive right to access the dcupl Services.

9.4 dcupl is entitled to suspend the Service in whole or in part if the security of dcupl or the security of a Customer is at risk. dcupl will inform the Customer immediately of such measures. No claims against dcupl may be derived from this.

9.5 Even if dcupl avoids making changes to the dcupl APIs or the dcupl Services that are not backward compatible, dcupl may modify, discard or republish the dcupl APIs for any dcupl Service or Services. dcupl will send at least thirty (30) days' notice of the discontinuation of an existing API version. It is Customer's sole responsibility to update its software applications.

9.6 Only if the change to be made by means of an update is economically unreasonable for the Customer shall the Customer have a right of termination in accordance with § 14 (Termination). In this respect, the Customer waives all claims for damages and other claims.

10. Copyright and infringement of property rights

10.1 dcupl respects the intellectual property rights of others. dcupl warrants that its Services and/or Performances (in part or in whole) do not infringe any intellectual property of a third party. dcupl indemnifies the Customer against all actual or threatened claims, losses, liabilities or the like (including costs and attorney's fees) in the event that the Customer is threatened by a third party for copyright infringement caused by dcupl.

10.2 It is our policy to respond to any claim that content/data posted on the Service infringes the copyright or other intellectual property rights of any person ("Infringement"). The Customer is solely responsible for the legality of the Project Data he/she stores and/or uses. dcupl has no duty of care, protection or warning in this regard. The Customer therefore guarantees to have all the appropriate rights to the content/data stored and/or used by him/her and indemnifies dcupl from any actual or threatened claims, losses, liabilities or the like in this regard (including costs and legal fees).

10.3 If you are a copyright owner, or authorized to act on behalf of an owner, and believe that your copyrighted work has been copied in a way that constitutes copyright infringement using dcupl's service, you must send your notice in writing to the attention of "Copyright Infringement" at legal@dcupl.com and include in your notice a detailed description of the alleged infringement. You may be liable for damages (including costs and attorneys' fees) if you falsely claim that any Content infringes your copyright.

11. Intellectual property of dcupl Services

11.1 The dcupl Services, as well as the Documentation and their original contents, features and functions, are and will remain the exclusive property of dcupl or its licensors.

11.2 The dcupl Services, trademarks, trade names, service marks and logos, whether registered or not, are protected by law. The trademarks and property rights of dcupl may not be used in connection with any product or service without the prior written consent of dcupl. In particular, the Customer is not allowed to license, publish, rent, make available to others through networks or otherwise offer the Service, even with individual elements. Likewise, the Customer is prohibited from decompiling the dcupl services offered.

11.3 The Customer grants dcupl a non-exclusive, gratuitous and, within the scope of the contract, unlimited right of use for the duration of the contract to use the Customer's account and project data; this is limited to the purpose of the proper provision of the services.

12. References

12.1 The Customer grants dcupl the right to name the Customer as a reference on the dcupl website and in online (social) or print media.

12.2 The Customer grants dcupl the right to use company names, logos, trademarks and the like for advertising and marketing purposes - without any deviation and within the Customer's trademark guidelines. dcupl is obligated to require and ensure compliance with Customer's trademark guidelines. If the Customer finds any deviation from its guidelines, it will inform dcupl and request to correct the deviation within one week.

12.3 dcupl may issue a press release announcing the Customer's election for the Service. The text of the press release is subject to the prior written consent of the Customer, which may not be unreasonably withheld or delayed.

13. Links to other websites

13.1 Our Services may contain links to third-party web sites or services that are not owned or controlled by dcupl. Therefore, dcupl has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services.

13.2 The Customer further acknowledges and agrees that dcupl shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services.

13.3 We strongly advise the Customer to read the terms and conditions and privacy policies of all third party websites that the Customer visits.

14. Termination

14.1 The Contract and the use of the dcupl Services shall end on the last day of the agreed term, unless otherwise agreed (e.g. automatic renewal).

14.2 Both contracting parties are entitled to terminate the Agreement and the use of dcupl Services at any time with immediate effect and without any liability if the other contracting party fails to comply with the Agreement in a material aspect of the Agreement despite a request to refrain from doing so or to comply while setting a reasonable grace period. a. Good cause for dcupl exists in particular if the Customer breaches a material provision of the Agreement or these Terms and Conditions (e.g. breach of clause 3.5.) and does not remedy this breach within fourteen (14) days after written notice and request. b. Good cause for Customer exists if dcupl breaches a material provision of the Agreement or these Terms (e.g., breach of any provision of 9.1 or 9.2.) and fails to cure such breach within fourteen (14) days after written notice and demand.

14.3 In the event of termination pursuant to 14.2.a), fees already paid shall not be refunded. Consumption-based fees shall be charged in both cases (14.2.a) and 14.2.b)) according to actual consumption. The calculation is made on a monthly basis.

14.4 Upon termination, the Customer's right to use the Services and Performances shall expire and all fees shall become due immediately. The Customer shall immediately cease using the Services and Performances. After termination, any use of the Services by the Customer constitutes a violation of dcupl's property rights.

14.5 After the legal termination of the Contract, dcupl will irrevocably delete the Customer's Project Data within a period of thirty (30) days and any legal deadlines. dcupl shall not be liable for any loss of data.

15. Guarantees

15.1 We are a service provider and our Services and Performance are state of the art and we provide our services to the best of our knowledge and belief.

15.2 dcupl expressly does not owe any economic success whatsoever to the Service. dcupl makes no representations or warranties as to the suitability of the Service for any particular purpose. dcupl does not guarantee that the Service will be uninterrupted, error-free or fully functional at any time.

15.3 dcupl is not liable for downtime or disruptions due to maintenance work, software updates and due to circumstances (e.g. technical problems of third parties and force majeure) beyond the control of dcupl. Minor technical changes are considered approved in advance.

15.4 The warranty is also limited to reproducible defects. If incompatibilities arise for the Customer due to technically reasonable changes to the performance, claims for damages shall be excluded.

15.5 Excluded from the warranty are damages resulting from instructions not issued by dcupl, inadequate equipment, non-compliance with installation instructions and conditions of use, improper use and use of unsuitable software or other material or a problem arising from the sphere of the Customer.

15.6 If failures or bugs of any kind occur, the Customer must immediately report them in writing by email at the address support@dcupl.com with a detailed description of the error. If the Customer fails to do so, he may no longer assert any warranty claims. dcupl will attempt to correct errors and bugs as soon as we become aware of them.

15.7 The existence of errors and defects shall always be proven by the Customer.

15.8 dcupl is entitled to access the Customer's area for the purpose of troubleshooting.

15.9 The warranty is excluded for Customers with the Free Plan.

16. Liability

16.1 dcupl shall only be liable for compensation of damages caused by it, its directors, employees, partners, representatives, suppliers or affiliates in connection with the Services and Performances, if such damages were caused by gross negligence or intent.

16.2 If dcupl is liable for any reason, the compensation shall be limited in total to the agreed subscription fee for the current billing cycle at the time of the event causing the damage, but shall not be calculated on professional services or consumption-based usage (e.g. traffic).

16.3 In no event and under no circumstances will dcupl, nor its directors, employees, affiliates, agents, suppliers or related companies be liable for any indirect, incidental, special or consequential damages, including, without limitation, damages for loss of profits, data, use, goodwill or other intangible losses, resulting from (i) your access to or use of the Service or inability to access or use the Service; (ii) any conduct or content of any third party on the Service; (iii) any content obtained from the Service; and (iv) unauthorized access, use or modification of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been advised of the possibility of such damages, and even if a remedy set forth herein is found to have failed of its essential purpose.

16.4 dcupl shall not be liable to the Customer for any delay or failure to perform its obligations under this Agreement if such delay or failure is due to causes beyond dcupl's control. Such causes include, but are not limited to, acts of God, floods, wars, fires, power or other utility outages, consequences of epidemics or pandemics, or delays in the provision of necessary resources or support or in the Customer's compliance with other requirements under this Agreement.

16.5 The injured Customer must prove the existence of gross negligence or intent.

16.6 Claims for damages shall become time-barred one year after the Customer has become aware of the damage.

17. Confidentiality and data protection

17.1 Both parties are obliged to treat data, information and documents received in connection with the use of the services as confidential and to commit to secrecy.

17.2 Both parties are obliged to comply with the provisions of the General Data Protection Regulation (GDPR).

17.3 If the Customer obtains knowledge or had the possibility to obtain knowledge of a Distributed Denial of Service (DDoS) attack that overloads the system of dcupl recognizable to the Customer and/or allows the possibility of potential data theft, the Customer shall refrain from doing anything that could lead to financial losses or data leaks. If the Customer had been aware of such attacks and had been in a position to prevent them, the Customer shall be liable for all resulting damages attributable to his misconduct.

17.4 The Customer confirms that it is aware of and fully complies with the Privacy Agreement (insofar as it concerns the Customer) and the Privacy Policy of dcupl, both of which can be viewed at https://dcupl.com/privacy.

18. Applicable law and place of jurisdiction

18.1 The place of performance shall be Linz (Austria).

18.2 These GTC shall be governed by Austrian law to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the conflict of laws provisions.

18.3 The exclusive jurisdiction of the court with subject-matter jurisdiction at the registered office of dcupl is agreed as the place of jurisdiction.

19. Miscellaneous

19.1 The Customer has full knowledge of all circumstances concerning the Service. The Customer is aware of its true value. A contestation of the contract due to error or any other contestation or adjustment clause (e.g. laesio enormis) is expressly excluded between the contracting parties.

19.2 Failure to enforce any right or provision of these Terms and Conditions shall not be deemed a waiver of such rights.

19.3 Should any provision of these GTC be legally ineffective, invalid and/or void or become so during its term, this shall not affect the legal effectiveness and validity of the remaining provisions. In this case, the invalid and legally ineffective provision shall be replaced by a provision that is legally effective and valid and corresponds in its economic content to the replaced provision - to the extent possible and legally permissible.

19.4 These terms and conditions replace all previous agreements. Agreements or arrangements deviating from our GTC require written confirmation by dcupl. In the event of a conflict between these GTC and the order form or any other document, the order form shall prevail over the GTC and the GTC shall prevail over any other document.