IKOSA® – TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE (“AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN KML Vision GmbH, LOCATED AT NIKOLAIPLATZ 4, 8020 GRAZ, AUSTRIA (“KML VISION”) AND THE INDIVIDUAL ACCEPTING THIS AGREEMENT OR A LEGAL ENTITY, IF THE INDIVIDUAL IS ACCEPTING THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, IDENTIFIED IN AN ORDER FORM (THE “USER”). THIS AGREEMENT REGULATES THE ACCESS AND USE OF KML VISION’S IMAGE DATA MANAGEMENT AND IMAGE ANALYSIS PLATFORM KNOWN AS “IKOSA” (“SERVICE”). IKOSA INCLUDES THE IMAGE DATA MANAGEMENT COMPONENT TITLED “IKOSA PORTAL” AND THE AUTOMATED IMAGE ANALYSIS COMPONENTS TITLED “IKOSA PRISMA” AND “IKOSA PRIME”. ACCESS AND USE OF THE SERVICE BY THE USER ARE CONDITIONED UPON ACCEPTANCE OF THIS AGREEMENT BY TICKING THE BOX NEXT TO “AGREE” OR SIMILAR CONFIRMATION UPON INITIAL REGISTRATION TO ACCESS THE SERVICE AND ANY PROCESS DURING THE USE OF THE SERVICE IN ACCORDANCE WITH KML VISION’S ORDER PROCESS.

IF AN INDIVIDUAL IS ACCEPTING THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, THE INDIVIDUAL CONFIRMS THAT SHE/HE IS ACCEPTING THIS AGREEMENT ON BEHALF OF THE LEGAL ENTITY. THE USER CONFIRMS THAT SHE/HE HAS THE LEGAL RIGHT AND CAPACITY TO ENTER INTO THIS AGREEMENT IN HER/HIS JURISDICTION.

I. ACCESS TO THE SERVICE

1. Scope: The Service is offered by KML VISION in one “free” and several different “fee-based” versions. All versions are included under the term “Service”. Any differences in policy between the versions are explicitly described in this Agreement. By accepting the terms of this Agreement, the User accepts the policies regarding the version of the Service in use by the User.

2. Registration: To access the Service, the User must register through any of KML VISION’s websites (e.g. www.kmlvision.com, www.ikosa.ai, app.ikosa.ai) and/or any other process provided by KML VISION (e.g. email) for submission of an order processing form under this Agreement (“Order Form”). The User can upgrade from “free” to “fee-based” access to the Service by using the adequate online Order Forms.

3. Responsibility: The User: (a) agrees to provide accurate and complete information when registering and inform KML VISION on any changes immediately; (b) is responsible for maintaining the privacy of all login and account information for the use of the Service and must not disclose her/his credentials; (c) must not use the Service for any illegal or unauthorized purpose; (d) is fully responsible for any activities that are taken under her/his account.

4. Right to Access and Use: KML VISION grants the User a limited, non-exclusive, non-sublicensable, non-transferable, revocable right to access and use the Service in the version ordered by the User through the Order Form. This right is temporally limited with the Subscription Period as defined below.

5. Availability and Changes: KML VISION makes every effort to provide a high quality service to the User. Due to maintenance, server downtime or any other issues, KML VISION may stop providing the Service temporarily at any time. KML VISION assures to do its best to limit the impact of those cuts and will inform the User when deemed necessary. The User acknowledges and agrees that KML VISION does not provide a guarantee for the availability of the Service. The User acknowledges and agrees that KML VISION’s future plans for the Service may be subject to changes at any time without notice. KML VISION shall have no liability as a result of any unavailability or any change of the Service.

6. Compatibility: KML VISION makes every effort to provide the Service in a way that it can be used with currently available standard hardware and software (web browsers) with appropriate security settings. By upgrading from “free” to “fee-based” access to the Service, the User confirms that she/he has tested the free version sufficiently for compatibility and accepts that no extraordinary termination of this Agreement is possible.

II. RESTRICTIONS and LIMITATIONS

1. Restrictions: The User shall not: (a) transfer rights of the Service; (b) create derivative works of the Service; (c) attempt to discover the source code of the Service or to find out how the Service is provided; (d) use any kind of software that attempts to interfere with the operation of the Service; (e) use the Service in any way that violates any applicable law, rights of KML VISION, or any third parties.

The User shall not: (a) use or attempt to use another User’s account without authorization from that User and KML VISION; (b) use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other Users from fully enjoying the Service or that could damage, disable, overburden or impair the functioning of the Service in any manner; (c) reverse engineer any aspect of the Service or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of the Service; (d) Attempt to circumvent any content-filtering techniques employed or attempt to access any feature or area of the Service that she/he is not authorized to access; (e) develop or use any third-party applications that interact with the Service without prior written consent, including any scripts designed to scrape or extract data from the Service; (f) use the Service for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Agreement.

The User shall not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and she/he is solely responsible for her/his conduct while accessing or using the Service.

2. Limitations: No rights or licenses are granted except the access rights as defined in section I.4. All other rights are specifically excluded and denied. Removed content may continue to be stored by KML VISION, including, without limitation, in order to comply with certain legal obligations. Removed content may continue to be stored by KML VISION, including, without limitation, in order to comply with certain legal obligations. The Service is not a redundant backup service and the User agrees that she/he will not solely rely on the Service for the purpose of content backup and storage. KML VISION will not be liable to the User for any modification, suspension, or discontinuation of the Services, or the loss of any content.

III. VALIDITY OF THIS AGREEMENT

1. Effectiveness of Agreement: This Agreement is effective upon acceptance by the User and shall remain in effect until termination as defined in the following.

2. Termination by the User: The User who is using the “free” access to the Service and wants to stop using the Service has the right to terminate this Agreement for any reason at any time.The User who is using the “fee-based” access to the Service and wants to stop using the Service has the right to terminate this Agreement by the end of the current Subscription Period considering the applicable notice period. The notice of termination has to be provided by the User through the means KML VISION designates, which may include account settings in the Service (e.g. account deletion) or by contacting KML VISION by written notice.

3. Termination by KML VISION: KML VISION has the right to terminate this Agreement with the User who is using the “free” access to the Service for any reason at any time. KML VISION has the right to terminate this Agreement with the User who is using a “fee-based” access to the Service at the end of the Subscription Period as defined below.

4. Termination due to Violation: If the User breaches any terms of the Agreement, KML VISION has the right for extraordinary termination of this Agreement and/or to suspend or terminate the User’s access to the Service temporarily or permanently. In the case that the User is using a “fee-based” access to the Service, the User loses her/his right for refunds.

5. Survival: Sections V, VI, VII, IX, X, and XIV shall survive the termination or expiration of this Agreement for any reason.

IV. SUBSCRIPTION

1. Subscription and Subscription Period: The User subscribes for the usage of a specific version of the different available versions of the Service (“Subscription”) either during registration (“free” version) or by using an adequate Order Form, in which the User confirms the purchase of the Subscription. This subscribed version of the Service is provided by KML VISION to the User for a specific duration (“Subscription Period”). Except as otherwise specified in the Order Form, the Subscription Period for each Subscription is 1 (one) year, starting from the day defined in section IV.2.

2. Start of Subscription Period: The Subscription Period of the “free” version starts when the User accepts this Agreement for the first time. The Subscription Period of a “fee-based” version starts when the payment for the applicable Fees defined in the Order Form is received and KML VISION subsequently unlocks the specific “fee-based” version, either manually or automatically.

3. Rescission: By upgrading from “free” to a “fee-based” version of the Service, the User confirms that she/he has tested the “free” version sufficiently for her/his purpose of operation and waives any right of rescission.

4. Termination and Renewal: The User has the right to terminate the Subscription at the end of the Subscription Period with a notice period of six weeks. This notice of non-renewal has to be provided by the User through the means KML VISION designates, which may include account settings in the Service or by contacting KML VISION by written notice. If it is not terminated in consideration of this notice period, the Subscription is renewed tacitly for another Subscription Period. All renewals are subject to the applicable Service continuing to be offered and will be charged at the then-current rates.

5. Upgrade and Downgrade: The User has the right to switch from the Subscription of version A of the Service to a different Subscription of version B: (a) if the Fees for version B are higher than for version A by using an adequate Order Form at any time; (b) if the Fees for Version B are less than for version A at the end of the Subscription Period by an adequate Order Form or by written notice and with a notice period of six weeks. At the end of the Subscription Period of version A, the Service has to be used by the User in a way that is in accordance with version B (number of users, used storage, etc.), otherwise the Subscription for version A of the Service is renewed and the Fees for this Subscription apply.

6. Add-ons: The User may subscribe for special premium features (“Add-ons”) within the Service for the duration of the current Subscription (“Add-on Subscription”). The duration of the Add-on Subscription is coupled with the Subscription Period of the Service and the same conditions apply.

7. Fair Use Policy: KML VISION does not charge separately for network traffic costs incurred as a result of using the Service, and assigns each account a specific download network quota which is calculated by 2 multiplied by the defined storage within the Order Form for a reference period of two months. KML VISION reserves the right to limit and/or suspend the User’s access to the Service should network traffic exceed the assigned quota for a significant period of time. Before suspending the User’s account, KML VISION will reach out to notify the User of the excessive use, and offer an upgrade of the KML VISION’s data plan to increase the network quota.

V. BILLING AND PAYMENT

1. Fee: Access and use of the Service in the “free” version is free of charge. The User accessing the Service as a “fee-based” version and/or using fee-based Add-ons shall pay to KML VISION the fees defined on the applicable Order Form (“Fees”) on terms defined within this Agreement or in the Order Form. All Fees have to be paid upfront and are non-refundable, except the right of cancellation for consumers at section XII. If not otherwise specified in the Order Form, Fees are based on the Subscription and Subscription Period and become due upfront for the use of a “fee-based” version of the Service for each Subscription Period as a recurring payment.

2. Automatic Payment: If the Subscription for a “fee-based” version is renewed, KML VISION automatically charges the Fees for the new Subscription through the payment method provided by the User during initial payment or updated afterwards, up to two weeks before the new Subscription starts.

3. Default in Payment and Payment Reminder: In case of default in payment, the User must pay all costs incurred by KML VISION due to the default in payment. This also applies for unsuccessful direct debit procedures that are the fault of the User (e.g. due to insufficient funds). KML VISION may also invoice reasonable charges for issuing payment reminders. In case of default in payment, KML VISION reserves the right to suspend the User’s access to the Service temporarily until complete payment is received.

4. Change of Fee: The User acknowledges that KML VISION has the right to change the Fees for Subscriptions or Add-on Subscriptions for any reason at any time, especially for Index Adjustment. The changed Fees only affect new or renewed Subscriptions or Add-on Subscriptions, KML VISION will inform the User if she/he will be affected before potential renewals. During the Subscription Period, the Fees of the Subscriptions or Add-on Subscriptions currently used by the User are not changed.

5. Electronic Invoice: The User agrees that the invoice for a “fee-based” version is provided in electronic form.

6. Transaction Fees: The User acknowledges that her/his credit card issuer may charge (foreign) transaction or cross-border fees (“Transaction Fees”) in addition to the total price stated in the Order Form. The User has to pay these Transaction Fees.

VI. CONTENT, DATA, COMMUNICATION

1. Content: The User is solely responsible for the content that she/he submits to the Service. The User must not upload any content protected by copyright or other intellectual property rights without prior approval of the copyright or intellectual property owner. The User represents and warrants that: (a) she/he owns the content uploaded by her/him or otherwise has the right to grant the rights and licenses set forth in this Agreement; (b) she/he agrees to pay for all royalties, fees, and any other monies owed by reason of content she/he uploaded. The User may not upload any content that: (a) is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory or fraudulent; (b) would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law; (c) may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party; (d) contains any private or personal information of a third party without such third party’s consent; (e) contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or (f) is, in the sole judgment of KML VISION, objectionable or that restricts or inhibits any other person from using the Service, or that may expose KML VISION or others to any harm or liability of any type. The User represents and warrants that: (a) she/he owns the content uploaded by her/him or otherwise has the right to grant the rights and licenses set forth in this Agreement and (b) she/he agrees to pay for all royalties, fees, and any other monies owed by reason of content she/he uploaded.

2. De-Identified Data and Privacy: Except for her/his own user account profile data, the User shall only transfer completely De-Identified data to the Service. “De-Identified Data” means de-identified information (e.g. images, filenames, metadata, text, etc.) from which all personal identifiers have been removed such that there is no possibility that any transferred information can be used to identify individuals. The User shall not submit any “personal health information” to the Service. The User acknowledges and agrees that (a) KML VISION is not, and is not required to be, compliant with any medical device or health care regulations, nor with similar or related laws and regulations; (b) the User is responsible for compliance with applicable Privacy Laws, e.g. the User confirms to be the “controller” defined in the EU-GDPR.

The User hereby takes notice, that KML VISION is entitled to process, deliver or transmit personal data relating to the User as far as this is either necessary or appropriate for KML VISION to fulfill tasks assigned by the User to KML VISION, or as far as this is based on legal provisions. Data collected or provided may include personal data of the User which is subject to specific legislation relating to the processing, storage, transfer and use of such data. KML VISION will comply with all relevant laws relating to the protection and use of personal data and data privacy. KML VISION further will take all technical and organizational measures to prevent unauthorized or unlawful processing or accidental loss or destruction of, or damage to, or disclosure of such data. In compliance with applicable data security laws (including but not limited to: Austrian Data Protection Act / DSG and EU-GDPR) personal data relating to the User will be processed and used for legal purposes only.

3. Unauthorized Data: In the case that the User transfers data to the Service that do not qualify as De-Identified Data, that contain otherwise personal (health) information, that shows/describes illegal or otherwise objectionable material (e. g. pornography, violence, etc.) or that contains data subject to copyright infringement (“Unauthorized Data”), (a) KML VISION shall have the right, but not the obligation, to delete any Unauthorized Data and (b) KML VISION shall not be liable for any dissemination of Unauthorized Data. The User confirms that KML VISION is not responsible for monitoring the Service for Unauthorized Data and that KML VISION shall have no liability under this Agreement for Unauthorized Data received from the User.

4. Communication: The User agrees to a communication by electronic media, particularly e-mail, even in non-encrypted form. If another form of correspondence is desired, the User has to expressly notify KML VISION thereof.

VII. FEEDBACK

The User may provide to KML VISION feedback, suggestions and ideas for improvements regarding the use of the Service in written or oral form (“Feedback”). The User hereby transfers to KML VISION all worldwide rights to make use of this Feedback for all business purposes without any accounting or any payment to the User.

VIII. PRIVACY POLICY

Please read the Privacy Policy for all information regarding the use of personally identifiable information. The User acknowledges that the use of any personally identifiable information collected by KML VISION will be in accordance with the Privacy Policy.

IX. WARRANTY AND LIMITATION OF LIABILITY

1. Warranty: The User and KML VISION represent and warrant that they have the legal power and authority to enter into this Agreement and any Subscription and/or Add-on Subscription.

2. Limitation of Liability: The User acknowledges and agrees that the Service is provided on an “as is” and “as available” basis and without warranties of any kind, either expressed or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. KML VISION does not represent or warrant that the Service is accurate, complete, reliable, current or error-free as well as the Service or servers are free of viruses, other harmful components, or safe from hacker attacks. The User assumes the entire risk as to the quality and performance of the Service. KML VISION makes every effort to provide the Service in high quality. The User has the obligation of checking all evaluations, analysis results, documents, or other data provided by the Service, their fitness for a particular purpose and is responsible for further use. KML VISION AND ITS SUPPLIERS LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW FOR (A) ANY DECISIONS MADE ON THE BASIS OF THE SERVICE, (B) UNAUTHORIZED DATA RECEIVED FROM THE USER OR (C) ANY UNAVAILABILITY OR ANY CHANGE OF THE SERVICE. KML VISION’S OR ANY OF KML VISION’S officers, directors, employees, agents, licensors or partners LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW TO THE USER OR ANY THIRD PARTY FOR ANY DIRECT OR INDIRECT DAMAGES (e.g. lost data, lost profit, lost revenues of revenue, etc.), WHICH MAY RESULT OUT OF OR IN CONNECTION WITH THE SERVICE, SUBSCRIPTIONS, ADD-ON SUBSCRIPTIONS, OR THESE TERMS OF SERVICE (HOWEVER ARISING, INCLUDING NEGLIGENCE).

2.1. The liability of KML VISION and each of their respective officers, directors, employees, agents, licensors or partners irrespective of the legal ground, is – in cases of slight negligence – limited in total for each individual claim/single case of damage to the amount paid, if any, by the User to access or use the Service.

2.2. An individual claim/single case of damage shall be: either the sum of all damage claims asserted by all damaged persons/beneficiaries resulting from one and the same action, i.e. one single act; or: the sum of all claims asserted by one and the same claimant/beneficiary based on different actions but in a legal or economic context therewith; or: the sum of all claims in connection with an uniform damage resulting from one or more actions. For each individual claim/single case of damage, KML VISION only provides for one singular payment (limited with the above mentioned amount) with respect to all consequences of the wrongful act, also in case of more than one person being liable to pay compensation.

2.3. The above limitation of liability also applies in case that KML VISION becomes liable towards any other person than the User, for example, in case that the contractual relationship with the User includes third persons into the scope of protection; this limitation of liability especially applies with respect to companies, in which the User holds either directly or indirectly a participation, or which are either direct or indirect shareholders of the User, or which are under joint control with the User, or which are in any other form associated with the User.

2.4. In case that the User is an entrepreneur in the sense of Sec 1 Subsec 2 Austrian Consumer’s Act („Konsumentenschutzgesetz“), which should be the case at hand, the limitation of liability according to above Clause 2.1 applies – in addition to the cases as mentioned in Clause 2.1 – also in cases of simple gross negligence.

2.5. The limitation of liability according to Clauses 2.1 til 2.3, respectively, do not apply in cases of personal injuries.

2.6. Besides, KML VISION and other Indemnified Parties as defined in Section X will not be liable to the User for any indirect, consequential, exemplary, incidental, punitive or special damages or lost profits.

3. Unauthorized Access: Although KML VISION takes precautions to protect its network from unauthorized access by third parties, KML VISION cannot be held liable for such unauthorized access.

X. INDEMNIFICATION

1. To the fullest extent permitted by applicable law, the User will indemnify, defend, and hold harmless KML VISION and its officers, directors, employees, agents, licensors or partners (individually and collectively, the “Indemnified Parties”) against all claims and proceedings (to include any settlements made with the consent of the parties hereto and reasonable legal and expert costs and expenses) made or brought (whether successfully or otherwise) by whom ever arising out of or related to (a) her/his access to or use of the Service; (b) her/his content; (c) her/his violation this Agreement; (d) her/his violation, misappropriation or infringement of any rights of another (including intellectual property rights or privacy rights); (e) the violation of any laws or regulations or (f) her/his conduct in connection with the Service.

2. The User agrees to promptly notify Indemnified Parties of any third party claims, cooperate with Indemnified Parties in defending such claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). The User also agrees that the Indemnified Parties will have control of the defense or settlement of any third party claims.

XI. LAPSE / PRECLUSIVE PERIOD / TERMINATION

1. Unless the law stipulates a shorter term of lapse or preclusion, all claims (excluding, however, warranty claims, in the event that the User is a consumer in the sense of Austrian Consumer’s Act against KML VISION shall lapse, unless the User has claimed them in court within six months (in the event that the User is an entrepreneur) or within one year (in the event that the User is a consumer) as of the date at which the User becomes aware of the damage and the damaging party, or of the incident that otherwise gives rise to a claim, but at the latest after the expiry of five years as of the conduct (infringement) causing the damage (giving rise to a claim).

2. KML VISION reserves the right, in their sole discretion, to terminate the User’s right to access or use the Service, whereby KML VISION will notify the User in advance with a suitable notice period.

XII. INFORMATION REGARDING THE RIGHT OF CANCELLATION FOR CONSUMERS

1. The consumer has the right to cancel the engagement within 14 days without giving any reasons. The time period of 14 days is counted from the conclusion of this Agreement. The User has to inform KML VISION by e-mail (support@kmlvision.com) about her/his decision to execute her/his right of cancellation. A template for the withdrawal form is available at for download (Withdrawal Form).

2. If the User as a consumer cancels this Agreement, KML VISION has to return all received payments (e.g. advance on costs) immediately and at the latest 14 days from the date of receipt of her/his statement of cancellation. KML VISION will use the same currency/instrument of payment for the return of the received payments, which was used for the initial transaction by the User as a consumer, if it is not agreed otherwise. In no case KML VISION will charge any fees for returning the received payments. Financial transaction costs are fully covered by the User.

3. If the User as a consumer wishes KML VISION to start the Services during the period of her/his right of cancellation, her/his right of cancellation is forfeited with completing the fulfillment of the Agreement through KML VISION.

4. If the User as a consumer wishes KML VISION to start the Services during the period of her/his right of cancellation and in the following executes her/his right of cancellation, she/he has to pay KML VISION proportional fees (fees for Services actually rendered until executing the right of cancellation, compared to the full agreed amount of fees, if any).

XIII. REVISIONS TO this Agreement

1. KML VISION reserves the right to alter this Agreement at any time without prior notice to the User. In the case of a modified version of this Agreement, KML VISION will notify the User via e-mail or through the Service. All modifications become immediately effective with publication.

2. The User has to accept the new version of this Agreement for further use of the Service. A continued use of the Service by the User after any modification to this Agreement will be considered as an acceptance of the modification by the User.

XIV. MISCELLANEOUS

1. Austrian law is exclusively applicable without giving regard to its conflict rules principles, the UN purchase laws (CISG, Vienna UN Sales Convention) shall be excluded. The place of performance and exclusive legal venue shall be Vienna, Austria. Towards Users, who are customers according Austrian Consumer’s Act („Konsumentenschutzgesetz“), the provisions on the legal venue as defined in § 14 Austrian Consumer’s Act („Konsumentenschutzgesetz“) shall apply.

2. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby, and the invalid, illegal or unenforceable provision shall be deemed superseded by a valid, legal and enforceable provision that most closely matches the intent of the original provision.

© 2019 KML Vision GmbH.