Terms and Conditions

1 | SUBJECT AND SCOPE OF APPLICATION

These Terms and conditions (the “Terms”) apply to all legal transactions, orders and contracts concluded with Diffusely Austria GmbH, a company established under the laws of Austria, with offices at Karmeliterplatz 8, 8010 Graz, registered with the Companies Register (Firmenbuch) at the Regional Court (Landesgericht) of Graz under the number (FN) 452417w, in relation to the Services (as defined in article 2). The Terms, together with the order(s) and any applicable privacy policy and terms of use, are referred to as the “Agreement”.

Under the Agreement, Diffusely Austria GmbH is doing business as “CarCutter” with its business customers (“Client”). These Terms do not apply to transactions, orders or contracts for services outside the scope of article 2 or vis-à-vis private customers.

Individually CarCutter and the Client are referred to as a “Party” and collectively as the “Parties”.

Any terms and conditions of Client shall only apply if they have been expressly accepted by CarCutter in writing. Any other acts by CarCutter, either explicitly, implicitly or by failing to contest, shall not be considered as a consent to such terms and conditions of Client.

These Terms are available on www.carcutter.com and can be electronically viewed, printed, downloaded and stored on a storage medium at any time.

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2 | SERVICES BY CARCUTTER

2.1 Product and Service Description.

CarCutter provides cloud-hosted software-as-a-service solutions for the capture, submission, processing, enhancement, management, enrichment, storage, retrieval and publication of vehicle images and related vehicle media (“Services”).

The Services may be made available through one or more hosted web applications, including customer portals and web-based upload tools, mobile applications, application programming interfaces (“API”), embedded web components (“WebPlayer”), or other interfaces designated by CarCutter from time to time. The applications, interfaces, and components described in this article 2.1 are collectively referred to as the “CarCutter Software”.

The specific products and services made available to the Client, including their applicable features, functionality, fees and payment obligations, will be specified in the applicable Order (as defined below) or other service documentation expressly incorporated into this Agreement. In the event of any conflict, the applicable Order will prevail with respect to the specific products and services purchased by the Client.

Features, products, integrations, configurations or services that are not expressly included in the applicable Order or this Agreement are not included in the Client’s subscription or other purchased Services.

CarCutter may modify, improve, update or replace components of the Services from time to time, provided that CarCutter does not materially diminish the core functionality of the Services purchased by the Client during the applicable term. This does not prevent changes required for legal, regulatory, security, technical or third-party reasons, or changes to beta, preview, experimental, discontinued or roadmap features (collectively, “Experimental Features”). Experimental Features are not part of the Services unless expressly identified as such in the applicable Order.

2.2 Client Content.

The Client will provide information, logos, drawings, graphics, data, photos, pictures, images, videos or other content to the Services (“Content”) in order for the Content to be processed by the Services (“Processed Content”). The Services may involve the use of artificial intelligence systems to edit visual Content, including the Content submitted by or on behalf of the Client, resulting in Processed Content that has been edited using AI (“AI-Edited Content”).

2.3 WebPlayer and Client End-Users.

Where the Client deploys the WebPlayer on its own website or digital properties, the WebPlayer is made available to the Client’s end-users (i.e. visitors of the Client’s website) as an embedded component operated by CarCutter. The Client acknowledges that when an end-user interacts with the WebPlayer, certain access data of a technical nature (such as interaction events, session data, device and browser information) is automatically transmitted to and processed by CarCutter’s servers for the purposes described in the Privacy Policy. CarCutter does not use this data to identify end-users personally. The Client is solely responsible for ensuring that its own privacy policy and cookie notice, as presented to its end-users, accurately discloses the use of embedded third-party components that collect such access data.

2.4 Delivery of Content.

The Agreement is considered duly fulfilled when the Processed Content is provided for download or via API interface by CarCutter, regardless of a download or an integration via API interface by the Client. It being specified that the Processed Content shall be available for thirty (30) days from its creation, CarCutter has no obligation to store the Client’s Content beyond thirty (30) days.

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3 | TECHNICAL REQUIREMENTS, AVAILABILITY, TECHNICAL FAULTS, APPS

3.1 Technical requirements.

The Services are provided exclusively by electronic means, regardless of the interface used (website, App or API). The Client is responsible to meet all technical requirements (system requirements) necessary for the operation of the Services, including an operating internet connection, at his own expenses. If the technical standards on the Internet or the Services change, then the Client must adapt to these changes at his own expense. Uploaded Content has to meet the file formats required by the Services.

3.2 Availability.

CarCutter undertakes to make the Services available to the Client 98% of the time, calculated on a one-year basis. Availability is provided if the Services can be accessed via an internet connection that meets the system specifications, as described in the specification. Repairing, maintenance and adapting measures for which notification has been given by CarCutter (see 3.3. below) as well as fortuitous events or force majeure do not reduce the availability. Higher availability must be agreed separately.

3.3 Repairing, maintenance and adapting measures, tests and misuse.

CarCutter has the right to temporarily restrict the use or to deactivate the Services for repairing, maintenance and adapting measures and for tests without giving reasons and compensation. Furthermore, CarCutter has the right to temporarily or permanently restrict the use, to deactivate the Services or to take other measures required by law to avoid, correct or identify misuse due to important reasons (such as unauthorized, improper or fraudulent use, e.g. hacker attacks) without giving reasons, notification and compensation.

3.4 Regulations for the application.

The application or its underlying technology may not be downloaded to or exported or re-exported:

• (i) into (or to a resident or national of) Burma (Myanmar), Cuba, Iraq, Iran, Libya, North Korea, Sudan, Syria, or any other country subject to United States embargo;
• (ii) to anyone on the US Treasury Department list of Specially Designated Nationals or on the US Commerce Department Denied Party or Entity List; or
• (iii) to any prohibited country, person, end-user, or entity specified by US Export Laws.

When using the application, the Client is responsible for complying with all trade regulations and both foreign and domestic laws as well as with the usage rules and terms and conditions of the mobile device the application is installed on (e.g. iOS, Android or Microsoft). The Agreement concluded by and between the Client and CarCutter does not affect these rules and terms and conditions of the mobile devices.

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4 | OFFERS AND ORDERS 

Offers to contract are always provisional and unbinding and shall be regarded as an invitation for the Client to enter into an Agreement with CarCutter. The conclusion of an Agreement requires an explicit confirmation of acceptance by CarCutter by the signing of an Order (as defined below). Electronic (automatic) confirmations of receipt which summarize the content of the quote merely document the receipt of a request for a quote and shall not be deemed as acceptance of CarCutter.

Cost estimates of CarCutter are not binding, unless expressly confirmed by CarCutter as binding in writing.

CarCutter has the right to correct errors in calculation or spelling in its cost estimates, offers and quotes.

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5 | TERM AND TERMINATION 

5.1 Duration.

Agreements with CarCutter shall enter into force upon signature of a quote (a signed quote shall be referred to as an “Order”) and shall be concluded for a fixed term provided in writing in the Order (“Term”).

The Agreement shall automatically renew at the end of the initial Term for successive periods of the same duration, unless a Party notifies the other Party in writing, at least fourteen (14) calendar days prior to the end of the initial Term, of its intention not to renew the Agreement.

5.2 Termination Rights.

The Agreement shall expire at the end of the Term stated in the Order. The Parties are not entitled to terminate the Agreement for convenience. For the avoidance of any doubt, if the Client decides nonetheless to terminate the Agreement, or stop its use of the Services, before the end of the Term for convenience, all fees payable for the remainder of the Term shall become immediately due and payable, without prejudice to any other rights or remedies available to CarCutter.

Irrespective of any statutory termination rights and irrespective of the legal qualification of the Agreement, either Party may terminate the Agreement with immediate effect by giving written notice to the other Party if (i) the other Party is in material breach of any of its obligations under the Agreement and if such breach is incapable of remedy, or has not been remedied within thirty (30) calendar days of the written notification from the non-breaching Party or (ii) the other Party becomes insolvent.

In particular, the following occurrences shall be deemed to constitute such causes, which entitle CarCutter to terminate the Agreement fully or partially with immediate effect (irrespective of other causes defined in these Terms):

1. default or delay of the Client with payments despite a reminder;
2. circumstances beyond the control of CarCutter which prevent CarCutter from performing its works and Services for more than three (3) months;
3. Client’s infringements of fundamental provisions of the Agreement or these Terms;
4. Client’s infringement of, attacks on or doubting of/questioning of CarCutter’s intellectual property rights;
5. suspected infringements by the Client of article 9 or other suspected acquisitions of know-how or competing acts of whatever nature by the Client.

5.3 Effect of Termination.

Insofar as CarCutter terminates the Agreement with immediate effect in accordance with article 5.2, the Client’s rights to claim performance or compensation are excluded.

In case CarCutter terminates the Agreement for reasons 5.2 (a), (c), (d) or (e), the Client shall remain liable to pay any and all fees due under the Agreement until the end of the Term.

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6 | PERFORMANCE OF SERVICES 

‍‍66.1 Performance Terms.

The (art of) performance of Services shall be subject to written agreements only. All information regarding the state, the nature and the quality of works, Services and the result (processed Content), wherever they may be found (e.g. in product specifications, prospectuses, catalogues or in other Contents), are not binding, unless expressly confirmed by CarCutter as binding in writing or unless a special state nature or quality is expressly agreed by CarCutter in writing.

6.2 Responsibility for Submitted Content.

Services of CarCutter are performed at the Client’s risk and expenses. Thus, the Client bears the performance and price risks. In particular, the Client is responsible for the Content it submits to the Services, as a result:

• any Content (i.e. one image) submitted shall be processed by CarCutter and charged to the Client, regardless of whether the image is submitted in multiple copies or has already been processed by the Services,
• any defective Content submitted, Content submitted by mistake or in a format which cannot be processed properly by the Services (for example, cut-off cars, objects/natural elements in front of the cars or directly on the cars etc.) shall be charged to the Client.

The Client is solely responsible for the Content it submits to the Services, including its lawfulness, accuracy and compliance with third-party rights. CarCutter reserves the right, without any obligation to do so and without incurring any liability, to remove, delete or destroy any Content or Processed Content that it deems, in its sole discretion, unlawful, in breach of these Terms, or not necessary for the performance of the Services.

6.3 DMS/ERP Integration.

The Client may request that the Processed Content be delivered on the interface of its Dealer Management System (DMS) or any other third-party Enterprise Resource Planning (ERP) that is or becomes a Client of CarCutter. In that case, the Client hereby authorizes CarCutter to transfer the Processed Content and any associated data to the third-party DMS and ERP, for the exclusive purpose of delivering the Processed Content on the Client’s DMS/ERP interface (via CarCutter and the DMS/ERP’s chosen method of interoperability). CarCutter is not responsible for the availability, security, integrity and confidentiality of the Processed Content and any associated data once it has been transferred to the DMS/ERP’s systems. Such responsibility lies with the DMS/ERP and it is the terms and conditions accepted by the Client on the DMS/ERP’s platform that shall apply should such a situation arise.

6.4 Allocation of WebPlayer Responsibilities.

Where the Client embeds the WebPlayer on its website or digital properties, the Client acknowledges and agrees that: (i) CarCutter operates the WebPlayer as a component of the Services and will receive and process access data generated by end-user interactions with the WebPlayer, as described in the Privacy Policy; (ii) the Client acts as an independent data controller in respect of its own end-users and is solely responsible for its own compliance obligations toward those end-users under applicable data protection law, including but not limited to providing appropriate notice and, where required, obtaining consent; and (iii) CarCutter shall not be liable for any failure by the Client to comply with its own data protection obligations toward its end-users in connection with the deployment of the WebPlayer.

7 | INVOLVEMENT OF SUBCONTRACTORS

7.1 Right to involve subcontractors.

CarCutter is entitled, in its sole discretion, to engage subcontractors of its choice for the performance of all or part of its obligations under the Agreement, without requiring the Client’s prior consent or providing notice to the Client.

7.2 Liability.

CarCutter remains solely liable to the Client for the proper performance of the obligations it entrusts to its subcontractors, as if CarCutter had performed them itself. The use of a subcontractor does not release CarCutter from any of its obligations under the Agreement, including with respect to confidentiality and data protection.

8 | SUBSCRIPTIONS, VOLUMES, PRICES, INVOICES AND PAYMENT TERMS

As specified in the Order, the Client is invoiced under one of the following arrangements: (i) a flat-rate Subscription, due for the entire Term regardless of actual usage (article 8.2); or (ii) a Minimum Volume commitment, combining usage-based billing with a guaranteed minimum amount (article 8.3).

8.1 Implementation Fees.

Onboarding of the Client may be subject to implementation fees as provided in the Order.

8.2 Subscriptions.

To benefit from the Services, the Client must acquire a subscription (“Subscription”). Subscription fees provided in the Order are due for the entire Term, regardless of the Client’s actual usage or unilateral termination for convenience (see 5.2). They are invoiced in equal monthly instalments over the Term as specified in the Order: the first instalment is invoiced on the first day of the Term; subsequent instalments are invoiced monthly on the anniversary of the first day of the Term, until the end of the Term.

The Client’s obligation to pay the full Subscription fees arises on the day the Order is signed by the Client. Therefore, the Client agrees that it is discharged of its obligation to pay the full Subscription fees if, and only if, the Client’s onboarding process is not completed within four (4) weeks, for reasons exclusively attributable to CarCutter.

8.3 Minimum Volume.

If the Client opts for a Minimum Volume commitment, it commits to processing a minimum volume of images or cars through the Services during the Term (“Minimum Volume”).

8.3.1 Guaranteed Minimum Amount.

The Minimum Volume corresponds to a guaranteed minimum amount (the “Guaranteed Minimum Amount”, as specified in the Order) that the Client commits to pay to CarCutter for the Term, regardless of whether the Minimum Volume is fully consumed. Accordingly, the Client shall be (i) obligated to consume the Minimum Volume during the Term and (ii) obligated to pay the corresponding Guaranteed Minimum Amount, regardless of its actual consumption or unilateral termination for convenience (see 5.2).

8.3.2 Pricing upon exceeding the Minimum Volume.

Unless otherwise agreed, if the Client exceeds the Minimum Volume before the end of the Term without entering into a new volume commitment, the images or cars processed beyond the Minimum Volume shall be charged at the applicable unit price, increased by twenty percent (20%).

8.3.3 Minimum Volume not reached.

In the event the Client does not reach the Minimum Volume at expiry of the Term, (i) the Client shall no longer be entitled to consume the Minimum Volume and (ii) CarCutter shall send the Client an invoice reflecting the outstanding amount of the Guaranteed Minimum Amount.

8.3.4 No carry-over.

For the avoidance of doubt, the Client shall not be authorized to consume any of the committed Minimum Volume after the Term.

8.4 Prices.

All prices are listed in Euro (EUR), Dollar (USD) or Great Britain Pound (GBP) and exclusive of any tax. Costs for transfer, fees, taxes, customs and other duties shall be paid by Client. Client hereby indemnifies CarCutter in this respect. CarCutter reserves the right to unilaterally adjust its prices as required due to changes of calculations or prices of manufacturers, suppliers or subcontractors of whatever reason or in case the economical assumptions underlying the business relationship with Client as made by CarCutter turn out to be inaccurate.

8.5 Payment Terms.

Invoices are issued and sent electronically to the Client’s email address. Unless expressly otherwise agreed, invoices shall become due for payment immediately upon delivery.

Payment transaction costs (e.g. cross-border or international transfer costs) shall be paid by Client. Discounts by CarCutter shall only be granted in writing. CarCutter is entitled to issue down payment invoices, part payment invoices and regularization invoices at any time.

Payments shall be made to CarCutter only, not to agents or distributors. Payment orders will be accepted only on account of performance but not instead of performance.

The Client is solely responsible for the payment of undisputed invoices and such payment constitutes Client’s essential obligation under the Agreement. The Client must pay the amounts indicated in the invoice(s) issued by CarCutter within thirty (30) days of the date of the invoice. In case of delay or default in payment CarCutter will charge statutory default interest.

In the event the Client fails to pay any invoice after multiple attempts from CarCutter to collect payment from the Client, without prejudice to the default interests and any claim or recourse CarCutter may have against the Client, CarCutter shall have the discretionary choice to (i) terminate the Agreement in accordance with article 5.2 or (ii) suspend the Services in accordance with article 15.11 “Rights of retention, of offset and of withhold performance or payments” and without any liability to CarCutter and without prejudice to its right to compensation for any damage caused – the Services shall be reactivated as soon as the full payment of the outstanding invoices are made in full.

Should CarCutter decide to suspend the Services pursuant to the above, the Client acknowledges that the duration of the Agreement shall not be extended by the amount of time the Services were suspended and that any amounts due under the Agreement remain payable in full, without any deduction prorated to the amount of time the Services were suspended.

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9 | INTELLECTUAL PROPERTY RIGHTS

‍99.1 Ownership and Intellectual Property of the Services and Associated Elements

9.1.1 Ownership

CarCutter and/or its licensors retain all rights, title, and interest (including any intellectual property rights therein) in and to the Services, including their “look and feel” (graphics, logos, texts etc.), any proprietary content (backgrounds etc.), algorithms, technologies, artificial intelligence, information and other materials made available to the Client through the Services (“Associated Items”).

The Services and Associated Items are original works of authorship protected, amongst others by copyright (including, by way of example and without limitation, the French Intellectual Property Code and the Austrian Copyright Act (“UrhG”)) and/or as trade secrets (“CarCutter IP”) of which CarCutter is the exclusive owner.

The Client expressly acknowledges that the Agreement does not grant the Client any rights on the CarCutter IP, other than the license rights expressly granted in article 9.1.2 below.

The Client refrains from infringing any of CarCutter’s intellectual property and trade secrets in any way whatsoever and, more generally, agrees not to take any action(s) inconsistent with CarCutter’s ownership and intellectual property interests.

CarCutter retains all rights, title, and interest in and to the application and any updates it may make available to the Client under this Agreement.

Any rights not expressly granted under the Agreement are reserved by CarCutter.

9.1.2 License

During the Term of the Agreement, CarCutter grants the Client a personal, non-exclusive, non-transferable, non-sublicensable, revocable and worldwide right to use the Services and Associated Items, in strict compliance with the Agreement, for the sole purpose of its business activity.

The Client will not:

• use the Services in a way that violates these Terms and/or applicable laws and regulations;
• use the Services in a way that infringes, misappropriates or otherwise violates CarCutter’s right or that of any third parties;
• send us any personal information of children under 13 or the applicable age of digital consent or allow minors to use our Services without consent from their parent or guardian;
• remove or alter any copyright, trademark, confidentiality or other proprietary notices, designations, or marks accessible through the Services;
• access (or attempt to access) any non-public areas of the Services;
• interfere with any access or use restrictions, or prevent (or attempt to prevent) another user from accessing or using the Services, or disrupt the Services;
• use any robot, spider, or other automated means to access or scan the Services, frame or mirror any part of the Services, or create a competitive business to the Services;
• use any data mining or data gathering or extraction methods, or otherwise collect information about the Services, and/or its visitors and/or users;
• collect or store personal information about any person or entity;
• collect, store, or send to CarCutter personal data that CarCutter does not need to know for the performance of the Services;
• send viruses, worms, malware, ransomware, junk email, spam, chain letters, phishing emails, unsolicited messages, promotions or advertisements of any kind and for any purpose;
• attempt to probe, scan, compromise or test the vulnerability of the Services, system or network or breach any security or authentication;
• reverse engineer or decompile any (part) of the Services, specifically in view of creating a similar service;
• broadcast, distribute, resell, sublicence, rent, lease, offer for free or otherwise commercialize any the Services, offering, product and/or feature;
• use the Services for any illegal or unauthorized purpose;
• make any interfacing or integration with other services or software, except where such interfacing or integration is expressly authorised by CarCutter as part of the Services, including the deployment of the WebPlayer on the Client’s website or digital properties;
• adapt or modify the Services.

9.2 Ownership and Intellectual Property of Content and Processed Content

9.2.1 Content

Nothing in the Agreement assigns or otherwise transfers any intellectual property rights owned by the Client to CarCutter, save as provided in the Agreement.

The Client remains the exclusive owner of the Content.

By uploading or processing the Content to, or through, the Services in connection with the Content, the Client grants CarCutter a license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, process and to transfer Content to subcontractors and other business Clients, and modify the Content, but solely as required to operate, improve (including for machine learning and research purposes), maintain, promote, market and provide the Services and ensure their safety. The Client agrees that these rights and licenses are royalty-free, transferable, sublicensable, worldwide and irrevocable for the duration of legal protection of the intellectual property rights in the Content in any relevant jurisdiction.

Accordingly, the Client warrants that:

• the Client has all necessary ownership or intellectual property rights (such as copyright, exploitation rights, trademark rights, licenses or other industrial property rights) for processing the Content transferred, left or revealed to CarCutter;
• the Content transferred, left or revealed to CarCutter is free of any third party rights which restrict or prohibit the using, changing, processing or exploiting by CarCutter and does not infringe any third-party rights or any laws; and
• the granting of rights according to this article 9.2.1 to CarCutter is covered by its ownership or intellectual property rights.

9.2.2 Processed Content

The Processed Content and all associated intellectual property rights, are the material and intellectual property of the Client. Nonetheless, the Client hereby undertakes not to use the Processed Content for the following purposes: research & development of artificial intelligence models that compete with the Services, military use, pornography, gambling/betting, terrorism, creation of “fake news”.

The Client hereby grants CarCutter a license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, process and to transfer Processed Content to subcontractors and other business Clients, and modify the Processed Content, but solely as required to operate, improve (including for machine learning and research purposes), maintain, promote, market and provide the Services and ensure their safety. The Client agrees that these rights and licenses are royalty-free, transferable, sublicensable, worldwide and irrevocable for the duration of legal protection of the intellectual property rights in the Processed Content in any relevant jurisdiction.

The Client shall indemnify and hold CarCutter harmless without fault against any third-party claims (including court and attorney’s fees and costs) asserted or threatened against CarCutter due to an alleged infringement of this article 9 or of the Client’s obligations under article 12 (Duties of Client), including without limitation any failure by the Client to comply with its AI-Edited Content disclosure obligations.

9.3 Distinctive Signs.

During the entire Term and for two (2) years after its expiry, the Client grants CarCutter the right to include the Client’s trademark, trade name, logo, product and service names, biographical information, interviews and success stories on the CarCutter (https://www.carcutter.com/) and Diffusely websites, social media, in press releases, promotional and commercial communications/materials (whatever the medium) or in their client lists.

In any event, the Parties grant each other the right to use the other’s trademarks, trade name and/or logo as a commercial reference on their website, social media, in press releases, promotional and commercial communications/materials (whatever the medium).

These rights are granted royalty-free, throughout the world, for the entire Term and two (2) years after expiry.

10 | FEEDBACK

During the course of the Agreement, CarCutter may request the Client’s input regarding the Services, including, without limitation, comments or suggestions in relation to the possible creation of new features/functionalities, modification, correction, improvement or enhancement of the Services and all associated offerings, or input as to whether the Client believes CarCutter’s development direction is consistent with their commercial business and needs, the technology and the like (collectively “Feedback”).

If the Client submits Feedback, the Client grants CarCutter a non-exclusive, worldwide, royalty-free, irrevocable and transferable license to use, commercialize, import, reproduce, incorporate, publicly display, distribute, modify, or otherwise fully exploit the Feedback internally and externally, without any obligation or restriction based on intellectual property rights or otherwise.

11 | CONFIDENTIALITY

The Agreement and any information, documents or data in particular commercial, technical, contractual and/or financial (including pricing), communicated or disclosed to the Parties, in any form whatsoever, in writing or orally, relating to the conclusion, performance and continuations of the Agreement, any CarCutter business/activity, CarCutter Services, other services and/or product or other technology developed by CarCutter are confidential and constitute a trade secret (the “Confidential Information”).

Each Party shall ensure that all Confidential Information that it receives from the other is disclosed only to those affiliates, employees, officers, consultants, representatives and agents (“Representatives”) that need to know such information in connection with the Agreement and who are bound by fiduciary or contractual obligations to keep the Confidential Information confidential, and to no other party. Each Party shall clearly instruct such Representatives not to violate the restrictions contained herein, shall take appropriate steps to ensure that these obligations are fulfilled and shall remain liable for any breach of such restrictions by such Representatives. Except as expressly set forth above, each Party agrees not to disclose said Confidential Information that it has received from the other Party to any other third party unless it has the prior written approval of the disclosing Party and the person/entity to whom the Confidential Information is disclosed is bound by a confidentiality obligation with terms no less stringent than those set forth in this Agreement, and to use the Confidential Information for the sole and exclusive purpose of performing the Contract and its consequences.

Notwithstanding the foregoing, one Party may disclose Confidential Information:

• when such disclosure is necessary for the performance of the Agreement or its consequences;
• that are already in the public domain or are available to the public other than through the effect of an action, omission, breach of the Agreement or any other undertaking; or
• in the event that such disclosure is required by a competent authority pursuant to a binding regulation.

Confidential Information and any material or immaterial contribution of any kind by a Party for the performance of the Agreement shall remain its sole and exclusive property.

This Confidentiality undertaking shall be effective for the entire duration of the Agreement and a period of five (5) years from the termination of the Agreement for any reason whatsoever, including expiry.

Finally, upon termination or expiry of this Agreement, the Customer will, at CarCutter’s discretionary choice, promptly destroy and/or return any element of Confidential Information that may have been provided to it by CarCutter, along with all the copies thereof.

13 | WARRANTY AND LIABILITY

13.1 Disclaimer of Warranties.

The Services are provided on an “as-is” basis. To the maximum extent permitted by applicable law, CarCutter does not make any warranty of any kind, whether express, implied, statutory or otherwise (including, without limitation, warranties of merchantability, fitness for a particular use, and noninfringement).

13.2 Limited Warranty.

CarCutter does not warrant and shall not be liable for the speed of performance of the Services or the results obtained (the Processed Content), nor for any damages or loss of data. If, nevertheless, a warranty claim should exist, the warranty period is six months. Only major defects shall entitle the Client to refuse acceptance of the Processed Content, and the Client shall bear the burden of proof for relevant defects of works and Services of CarCutter over the entire warranty period.

13.3 Exclusions and Limitations of Liability.

CarCutter’s liability is excluded, except in the following cases:

• (i) damage to a person’s health;
• (ii) damages giving rise to CarCutter’s mandatory liability under any Product Liability Acts; or
• (iii) damages caused intentionally or through blatant gross negligence.

This exclusion covers, in particular, pure financial losses, compensation for consequential damage, immaterial or indirect damage, damages from third-party claims, loss of profit, and fortuitous events or force majeure (see article 14). Insofar as CarCutter’s liability is not excluded under this article, the Client shall bear the burden of proof for fault or negligence of CarCutter, limited to the sum insured that is available for the specific case, and such liability remains subject to the cap set out in article 13.7.

13.4 Client Content.

CarCutter shall not be liable for Content transferred, left or revealed by the Client or on behalf of the Client and for the using, exploiting and exploitability of its works, Services and results by the Client as well as for legal consequences that may arise for the Client and third parties.

13.5 Liability for Third Parties.

The exclusion and limitation of liability also applies to CarCutter’s corporate bodies and their members, representatives, managers, employees, vicarious agents and subcontractors. CarCutter is not liable for damages caused by persons who are not attributable to CarCutter under mandatory law.

13.6 Indemnification by the Client.

In addition to the indemnification obligations set out in articles 9.2.2 and 12, the Client shall indemnify and hold CarCutter harmless without fault against any third-party claim, action or proceeding (including reasonable court and attorney’s fees) asserted or threatened against CarCutter, as well as any damages, costs or losses resulting therefrom, to the extent such claim results from:

• (i) a breach of the Agreement by the Client;
• (ii) the Client’s use of the Services in violation of applicable law; or
• (iii) the Client’s negligence or willful misconduct.

13.7 Limitation of Liability.

The cap set out in this article does not apply in the following cases:

• (i) a Party’s gross negligence or willful misconduct;
• (ii) a Party’s indemnification obligations under this Agreement;
• (iii) the Client’s payment obligations under article 8;
• (iv) a breach of article 9.1.1 (Ownership), article 9.1.2 or the prohibited uses set out in article 9.2.2;
• (v) a breach of article 11 (Confidentiality); or
• (vi) a breach of the Client’s AI-Edited Content disclosure obligations under article 12.

Outside of these cases, each Party’s total liability under the Agreement will not exceed the greater of (a) the total amount paid by the Client to CarCutter in the twelve (12) months immediately prior to the event giving rise to liability or (b) five hundred (500) euros. The foregoing limitations will apply to the maximum extent permitted under applicable law.

13.8 Limitation Period.

Any action for damages against CarCutter has to be asserted within a term of preclusion of six (6) months after Client has gained knowledge of the damage, but not later than three (3) years after the occurrence of the (primary) loss following the incident upon which the claim is based. This does not apply for damages to the health of a person.

14 | FORCE MAJEURE

CarCutter is not responsible for its non-performance due to fortuitous events or force majeure, such as natural occurrences, war, terrorism, strikes, riots, breakdown of the energy or Internet connection, technical defects, epidemics, pandemics or sovereign acts or measures. If the performance is or becomes temporarily impossible due to such circumstances agreed performance limits shall be extended for the duration of the interference.

 

15 | MISCELLANEOUS

15.1 Assignment, legal succession.

The Client may not transfer or assign any rights or claims to third parties unless prior written permission of CarCutter except the Client is grossly disadvantaged. The Client shall notify CarCutter immediately of an assignment. Until receipt of a verifiable notification of assignment CarCutter is entitled to make all Services and payments with debt-discharging effect to the Client. CarCutter is unrestrictedly entitled to transfer or assign rights or claims to third parties (such as factoring companies). The Client expressly agrees its consent to such an assignment by signing an Agreement with CarCutter.

Subject to CarCutter’s right of approval the Client shall assign an Agreement concluded with CarCutter and its rights and obligations unrestricted and unlimited to any sole or universal legal successors including the obligation to impose the afore-mentioned assignment obligation on its legal successors. The Client may transfer or assign an Agreement concluded with CarCutter and its rights and obligations only with prior written consent of CarCutter. However, CarCutter may unrestrictedly transfer or assign an Agreement and its rights and obligations fully or partially to any sole or universal legal successors. The Client expressly agrees its consent to such an assignment by signing an Agreement with CarCutter.

15.2 Waiver.

Any Client’s rights of challenging, rescission or contestation of an Agreement concluded with CarCutter (including these Terms) for the purpose of adaptation or cancellation for reasons of error, lacking or ceased basis of the contract, reduction by more than half (laesio enormis) or fully or partially invalidity is expressly excluded.

15.3 Governing law, venue.

Any Agreement concluded by and between CarCutter and the Client (including these Terms as well as the issues of its valid conclusion and its pre- and post-contractual effects) as well as any non-contractual obligations by and between CarCutter and the Client are governed exclusively by the substantive Laws (excluding its conflict of laws rules and the UN Convention on Contracts for the International Sale of Goods) of Austria.

Any claim, contractual or non contractual arising out of or in connection with the Agreement, by and between CarCutter and the Client, shall be settled by the competent court at the registered address of Diffusely Austria GmbH in 8010 Graz, Austria.

CarCutter, however, is entitled to alternatively lodge its claims at any other legal place of jurisdiction. Disputes of whatever nature (such as disputes regarding the performance or remuneration) do not entitle the Client to temporarily or permanently suspend, withhold or cease its due Services or payments.

Notwithstanding the foregoing, CarCutter is entitled to seek, before any competent court, interim or precautionary measures (including emergency or expedited relief) in the event of an actual or threatened infringement of its intellectual property rights, breach of confidentiality, or any other violation likely to cause it immediate or irreparable harm, without affecting the jurisdiction of the court designated above to rule on the merits of the dispute.

15.4 Contractual Structure, Alterations and Amendments, Changes to the Terms.

These Terms and the Order(s) as well as any applicable privacy policy and terms of use (published by CarCutter) shall comprise the Agreement between the Parties and shall supersede any prior or contemporaneous agreements, declarations or other legal acts in whatsoever form. Subsidiary oral agreements to contracts with CarCutter are not valid. In the event of any inconsistency between these Terms and the documents referenced or incorporated into this Agreement, the specific terms of the documents referenced or incorporated into this Agreement shall prevail.

Any alteration or amendment negotiated between the Parties to an Agreement concluded with CarCutter, as well as to subsidiary agreements, shall be made only in writing. This obligation shall also apply to the agreed written-form requirement itself.

CarCutter may change these Terms at any time, notably to reflect changes in applicable laws, regulations, industry standards, or changes to its Services or business. CarCutter will post the amended versions of these Terms to this page, and invites the Client to review them regularly. Should an amendment materially alter the rights and obligations under these Terms, CarCutter will provide additional notice, such as via email or through the Services. Unless otherwise provided in the Order, the version of these Terms in effect on the date the Order is signed shall apply for the initial Term. Upon each renewal of the Agreement in accordance with article 5.1, the latest version of these Terms published by CarCutter shall automatically apply to the Agreement as so renewed, without the need to obtain the Client’s express consent.

15.5 Severability Clause.

If any provision of an Agreement concluded with CarCutter (including these Terms) should be fully or partially void, ineffective or unenforceable, the remaining provisions shall not be affected thereby. The void, ineffective or unenforceable provisions shall be replaced by valid, effective and enforceable provisions in writing which in their economic result and purpose will be similar to the replaced ones as far as possible.

15.6 Joint obligation and liability.

If a plurality of persons act as the Client vis-à-vis CarCutter (such as joint ventures or consortiums) the persons of the Client shall be jointly and severally liable for the performance of the obligations and duties of the Client and for any damage caused.

15.7 Linguistic Deviations.

If these Terms are made available in other languages, CarCutter does not assume any warranty and liability for the (outsourced) translation into other languages. In case of linguistic deviations of the versions in other languages than English, the English version shall take precedence.

15.8 Power of representation.

Any person signing a contract with CarCutter declares with further personal liability to compensation for damage that he or she is entitled to sign the contract on behalf of the Client and to conclude the contract with binding effect for the Client.

15.9 Waivers and acknowledgements.

Unless expressly declared in writing Acts or omissions of CarCutter shall never be deemed as a waiver or as a (constitutive or declaratory) acknowledgment of obligations or duties of CarCutter. However, the Client constitutively acknowledges the proper and duly performance of the works and Services of CarCutter as stipulated and without any defects by partial or total payment of invoices of CarCutter.

15.10 Good Faith.

The Parties undertake to behave at all times towards each other as loyal co-contractors and to perform their obligations and exercise their rights in good faith.

15.11 Rights of retention, of offset and of withhold performance or payments.

The Client is not entitled to retention, to offset claims against CarCutter or to withhold performance or payments. Statutory rights of the Client to retention, to offset claims or to withhold performance or payments are excluded. However, CarCutter shall have an unrestricted right to retention or to withhold performance or payments as well as a right to suspend performance of all current and future works, Services or payments if the Client does not duly fulfill its obligations or payments fully or partially for whatever reason, or where there is objective evidence of a genuine risk of the Client’s insolvency (such as insolvency proceedings, a cessation of payments, or repeated payment delays), without any liability to CarCutter. CarCutter is further entitled, in the event of a payment delay by the Client or such objective evidence, to demand prepayment or adequate security from the Client.

The Client is not entitled to offset claims of CarCutter with any kind of counterclaims. However, CarCutter is entitled to offset claims of the Client with counterclaims of whatever nature.

15.12 Survival.

Any provision of the Agreement which, by its nature, is intended to survive termination or expiry of the Agreement shall remain in full force and effect, including without limitation articles 5.3 (Effect of Termination), 8 (to the extent of amounts due, including without limitation the Guaranteed Minimum Amount under article 8.3), 9 (Intellectual Property Rights), 11 (Confidentiality), 12 (Duties of Client), 13 (Warranty and Liability), and 15.3 (Governing law, venue).