of impactit GmbH, FN 301973d, Wienerbergstraße 11/B14, A-1100 Vienna ("impactit")
1.1These portatour® ISV API Terms and Conditions, including the Appendix - portatour® EULA for Integrations, together with the Order, constitute the agreement between impactit and the ISV for the use of the Service (“ISV Agreement”). They shall also apply if impactit provides Professional Services to the ISV and/or to the extent expressly agreed.
1.2Any deviating terms and conditions of business or purchase of the ISV or the like shall be invalid, even if such terms and conditions claim (exclusive) validity and/or impactit has not expressly objected to their validity.
1.3The ISV confirms the correctness of its identification data (e.g. company name) when ordering an ISV License and/or Credits. No ISV Agreement shall be entered into with consumers.
1.4Capitalized terms used in these portatour® ISV API Terms and Conditions and in the Order shall have the following meaning:
1.4.1API: application programming interface.
1.4.2App: any software, service or device offered by the ISV to its customers for the purpose of supporting field staff.
1.4.3Commercial ISV License: shall have the meaning ascribed to it in Section 2.1.2.
1.4.4Credit: a unit that defines the ISV's capacity to enable the Field Reps to benefit from the Integration.
1.4.5Credit Balance: the total amount of Credits still available for the ISV.
1.4.6Edition: the bundle of functionalities activated within the Service for the Integration for an End Customer as defined in the Pricing List.
1.4.7End Customer: the ISV’s customer in relation to the Integration.
1.4.8Field Rep: a unique person or vehicle designated by an End Customer or the ISV to benefit from the Integration.
1.4.9Field Rep Record: a record per Field Rep within the Service to enable and log that Field Rep’s benefit from the Integration.
1.4.10Fair Use Principle: shall have the meaning ascribed to it in Section 2.3.5.
1.4.11Fee(s): any remuneration to be paid by the ISV to impactit, usually depending on the number of Credits ordered and/or automatically topped up and on the Price per Credit.
1.4.12Integration: the enhancement to the App that enables the use of the Service.
1.4.13ISV: the legal entity named in the Order that places an order, usually an independent software vendor.
1.4.14ISV Agreement: shall have the meaning ascribed to it in Section 1.1.
1.4.15ISV License Term: the term of the grant of an ISV License as in accordance with the Order.
1.4.16ISV License: Trial ISV License or Commercial ISV License.
1.4.17ISV Partner Portal: web service provided for ISV by impactit to manage the Credit Balance and Organization Records.
1.4.18Multplier(s): one or more factors by which deductions of Credits from the Credit Balance are multiplied.
1.4.19Order: any agreement between impactit and the ISV for the purpose of granting the ISV an ISV License.
1.4.20Organization Record: a record per End Customer within the Service to enable and log the benefit of the Integration to that End Customer.
1.4.21Price per Credit: the price per Credit ordered and/or automatically topped up to be paid by the ISV to impactit.
1.4.22Pricing List: the list of Editions and Fees published on the impactit website.
1.4.23Professional Services: all additional services rendered by impactit for or on behalf of the ISV (e.g. workshops, support sessions), regardless of whether they are rendered for payment or free of charge.
1.4.24Service: the Software-as-a-Service portatour®, a route planning solution for professional use, developed by impactit and offered as an API with certain functionalities activated depending on the Edition.
1.4.25Target Monthly Uptime: shall have the meaning ascribed to it in Section 5.3.
1.4.26Trial ISV License: shall have the meaning ascribed to it in Section 2.1.1.
1.4.27Value Adjustment: shall have the meaning ascribed to it in Section 4.5.
2.1Upon conclusion of an ISV Agreement, impactit grants the ISV a non-exclusive, non-transferable and non-sublicensable license to use the Integration and the ISV Partner Portal for the duration of the ISV License Term
2.1.1to evaluate whether the Service’s functionalities, usability and use cases meet the requirements of the ISV (“Trial ISV License”);
2.1.2and to distribute the Integration to End Customers by way of licensing in accordance with the applicable Order (“Commercial ISV License”).
2.2The grant and maintenance of an ISV License as defined in Section 2.1 shall in any case be subject to full payment of the Fee in accordance with all ordered and/or automatically topped-up Credits.
2.3The ISV shall
2.3.1use the Service and the ISV Partner Portal only in accordance with applicable laws, the Order and these portatour® ISV API Terms and Conditions;
2.3.2be solely responsible for the legality, design, functionality, support, upgrades, state of the art and maintenance of the App and Integration;
2.3.3create and maintain at least one Organization Record for each End Customer;
2.3.4create and maintain a Field Rep Record for each Field Rep; and
2.3.5use the Integration and/or the Service to the extent typical for an average use of the Integration and/or the Service (“Fair Use Principle”). In order to maintain the quality of the Service, impactit is entitled to block access to the Service after prior warning if the intensity of use is far above average.
2.4The ISV is expressly prohibited from
2.4.1creating and/or operating a Field Rep Record for the benefit of more than one Field Rep;
2.4.2repeatedly creating and deleting Field Rep Records for the same Field Rep;
2.4.3using the Service for the purpose of the development and/or enhancement of any product, device, solution, application or software that competes with the Service;
2.4.4using the Service and/or the ISV Partner Portal for illegal activities and/or activities that may damage the good reputation of impactit and/or the Service; and/or
2.4.5integrating the Service into and/or using the Service for or in connection with any vehicle system, system or function for the automatic or autonomous control of vehicle behavior or any component thereof and/or for the control of emergency, blue light and/or similar operations for the prevention and/or mitigation of personal injury in road traffic.
3.1The term of the ISV Agreement shall be limited to the ISV License Term. If no other start date is specified in the Order, the ISV License Term shall commence on the date of the Order.
3.2Before the expiry of the ISV License Term of a Commercial ISV License, the ISV License Term shall always be automatically extended by the duration of the last agreed ISV License Term. The ISV or impactit may object to such automatic extension in writing (e-mail, fax, letter) up to 90 days before the expiry of the ISV License Term.
3.3If a new version of these portatour® ISV API Terms and Conditions has been published up to 90 days prior to the expiration of the option to object to the automatic extension as described in Section 3.2, the new version shall apply as of the extension date. If the ISV does not agree to this, the ISV will be referred to the aforementioned option to object.
3.4The ISV is entitled to terminate the ISV Agreement with immediate effect if impactit fails to remedy serious defects in the Service in a timely manner – as described in Section 5.2 – or grossly violates statutory or contractual provisions. impactit is entitled to terminate the ISV Agreement or the agreement on the provision of Professional Services with immediate effect for good cause. Such good cause shall be deemed to exist in particular, if the ISV grossly violates statutory provisions or the terms and conditions of the ISV Agreement or the agreement on the provision of Professional Services, including failure to pay the Fee on time and/or in full. Any continued and/or repeated violation of Section 2.4 by the ISV despite prior warning by impactit shall be deemed to be such a gross violation.
3.5Immediately upon termination and/or the end of the ISV Agreement,
3.5.1the ISV License Term shall terminate together with any ISV License;
3.5.2the ISV shall use reasonable efforts to provide End Customers with a version of the App without the Integration; and
3.5.3impactit shall repay ISV the value of the Credit Balance at the end of the ISV Agreement only,
126.96.36.199if the ISV Agreement has ended due to an objection by impactit to the automatic extension of the ISV License Term in accordance with Section 3.2; or
188.8.131.52if the ISV has lawfully terminated the ISV Agreement as described in Section 3.4.
4.1The ISV’s ability to distribute the Integration to End Customers by way of licensing on the basis of a Commercial ISV License depends on the ISV’s Credit Balance. 1 Credit per Field Rep Record that exists at least temporarily during a calendar month is deducted from the Credit Balance per such calendar month, multiplied by
4.1.1a Multiplier as specified in the Pricing List, depending on the Edition used,
4.1.2a 0,5-Multiplier, if the relevant Field Rep Record is created and/or deleted during such calendar month, but not at its first or last day,
4.1.3a 1,25-Multiplier, if the ISV does not – for the duration of the ISV License Term – place the phrase “powered by portatour®” in close proximity to the name and description of the Integration itself and in advertising materials, and
4.1.4a 1,25-Multiplier in relation to End Customers who have not granted full written or electronic approval that ISV and impactit may mention the End Customer's company name (with company logo) as a reference user of the Service and the Integration for promotional purposes, in particular on websites, social media (e.g. LinkedIn) and in emails, depending on the information provided by ISV in the Organization Record of such End Customer.
4.2Credits may be ordered by the ISV or may be topped up automatically. They will always be deducted from the oldest order and/or automatic top up. Credits shall expire three years from the date on which they were ordered and/or automatically topped up.
4.3The ISV shall be liable to pay a Fee for ordered and/or automatically topped up Credits. However, impactit may provide a limited number of Credits free of charge for use within a Trial ISV License.
4.4If, during the ISV License Term of a Commercial ISV License, the Credit Balance falls below either 10% of the amount of Credits ordered in the ISV’s last Order or 100 Credits, the Credit Balance shall be automatically topped up by the amount of Credits ordered in the ISV’s last Order, but at least by 100 Credits, unless the ISV has expressly objected to such automatic top up.
4.5Prior to each automatic extension of the ISV License Term, but no more than once a year, impactit may increase the Price per Credit by up to nine percent for the purpose of preserving value, effective as of the respective extended ISV License Term (“Value Adjustment”). In no event, however, shall a Value Adjustment cause the Price per Credit to exceed the applicable prices published on the impactit website at the time of the Value Adjustment.
4.6Unless otherwise stated, the Fees are net fees. Local taxes, in particular withholding taxes in the country of the ISV, shall therefore be borne by the ISV. The ISV shall be solely responsible for paying such taxes, if any, and shall not be entitled to deduct such taxes from the Fee. The ISV may not offset the Fee against its own alleged or actual claims. The ISV agrees to electronic invoicing.
4.7The ISV shall be solely responsible for invoicing End Customers. Delays, defaults or disputes concerning the payment of debts of End Customers towards ISV shall in no way entitle ISV to withhold or reduce the Fees towards impactit.
5.1Information about the Service or Professional Services - e.g. on websites, in advertisements, in documentation - are only descriptions and do not contain any guarantee regarding the scope or the condition and functionality of the Service or Professional Services. The ISV is advised to verify the scope of functionality and/or supported geographic regions of the Service before ordering. The ISV waives any claims in this regard after ordering.
5.2According to the current state of technology, it is not possible to offer the Service and/or Professional Services completely free of defects. impactit will, however, endeavor to offer the Service largely free of defects. Defects in the Service must be reported by the ISV to impactit in writing in a detailed and reproducible manner. In the case of proven serious defects that render the use of the Service impossible or severely restrict its use, impactit shall have 45 days from receipt of the notification to remedy the defect.
5.3impactit shall use commercially reasonable efforts to maintain a Service availability of at least 99.9% per calendar month (“Target Monthly Uptime”) during the ISV License Term. The actual and relevant uptime will be displayed on https://www.portatour.com/uptime/. If the ISV notifies impactit within 45 days from the last day of a calendar month that the Target Monthly Uptime has not been met within this calendar month, impactit will top up free of charge the following percentages of the amount of Credits that have been deducted from the Credit Balance for this calendar month:
5.3.110%, if the average availability of the Service within this calendar month was below 99.9%, but greater than or equal to 99.5%;
5.3.225%, if the average availability of the Service within this calendar month was below 99.5%, but greater than or equal to 99.0%; or
5.3.350%, if the average availability of the Service within this calendar month was below 99.0%.
5.4With respect to any failure by impactit to meet the Target Monthly Uptime, Section 5.3 shall be the ISV’s sole remedy. Nothwithstanding the foregoing, the ISV shall not be entitled to any top-up of Credits or any other remedy against impactit for calendar months in which the Target Monthly Uptime is not met if the downtime was caused by factors beyond impactit’s reasonable control.
5.5No warranty of any kind shall apply
5.5.1in case of minor defects;
5.5.2in case of defects caused by improper use, errors or faulty settings in the Integration and/or App, a faulty internet connection or other circumstances beyond impactit's responsibility; and/or
5.5.3if the ISV refuses to cooperate free of charge in the search for the cause of the defect.
5.6impactit may release a newer version of the Service at any time at its sole discretion. This is done for the purpose of bug fixes and functional enhancements. The ISV may use these newer versions of the Service within the App as Integration in accordance with these portatour® ISV API Terms and Conditions. impactit is entitled to block access to old versions of the Service with a reasonable period of notice, which must be at least 18 months.
6.1All (intangible) rights to the Service and the ISV Partner Portal shall remain the property of impactit.
6.2The ISV hereby assigns to impactit all intangible property rights to all feedback, comments, suggestions for improvement, ideas, concepts and changes provided by the ISV, End Customers or Field Reps in connection with the Service and/or the Integration.
7.1The processing of data of the ISV, ISV employees, End Customers or Field Reps by impactit, consisting of both personal data and data processed on behalf of the ISV and/or End Customers, is carried out for the purpose of the provision of the Service, Professional Services and the ISV Partner Portal, the deduction of Credits from the Credit Balance and for the verification of the use of the Service and/or the Integration in accordance with the legal provisions and these portatour® ISV API Terms and Conditions, in each case including related correspondence. The processing of the data of the ISV or the ISV’s employees, consisting of both personal data and data processed on behalf of the ISV, is also carried out for the purpose of initiating or maintaining a business relationship and processing payment for the Service or Professional Services, in each case including related correspondence, as well as for contacting companies affiliated with impactit within the Solvares Group GmbH to the extent that impactit identifies a possible interest of the ISV in services, professional services and/or products of such companies.
7.2The legal grounds, depending on the purpose of processing, are:
7.2.2The necessity for the performance of a contract (including pre-contractual measures), a legal obligation to which impactit is subject, or for the purposes of the legitimate interests of impactit and/or companies affiliated with impactit within Solvares Group GmbH. These legitimate interests may include the proper provision of the Service, sending messages regarding updates or to promote the Service and/or similar products or services, two-way communication, IT security and support, and fraud prevention.
7.3Depending on the purpose of the processing, personal data may be transferred to tax advisors, banks, payment service providers, debt collectors, public authorities, courts or to IT, telecommunications and support service providers (e.g. if a support request is sent to impactit by email) or to companies affiliated with impactit within the Solvares Group GmbH. It is not possible to name specific recipients within the scope of these portatour® ISV API Terms and Conditions, in particular because the specific recipients within a recipient category may change by the time a transfer actually takes place. However, impactit shall not pass on data processed on behalf of ISV and/or End Customer (according to Sections 7.7 respectively 7.8) to third parties without explicit instructions from ISV and/or End Customer.
7.4Personal data will be stored for as long as access to the Service exists, for as long as the initiation or maintenance of the business relationship has not been terminated or for as long as is necessary to fulfil contractual or legal obligations or to exercise contractual or legal rights.
7.5The GDPR grants a right to access, rectification, restriction, data portability, objection, withdrawal of consent (without affecting the lawfulness of processing based on consent before its withdrawal) and erasure, unless there are contractual or legal requirements to the contrary. Excluded from erasure are data in encrypted backups, where erasure is technically possible only periodically with a reasonable effort. The GDPR grants a right to lodge a complaint with a supervisory authority. Automated decision-making, including profiling, does not take place. The provision of personal data is necessary for the performance of the ISV Agreement; failure to provide such data may result in the ISV Agreement not being entered into or not being properly performed.
7.6The ISV is responsible to impactit for the lawfulness of the transmission of personal data via the Service and/or the Integration and for the lawfulness of the data processing, also with regard to End Customers and Field Reps.
7.7To the extent that the ISV acts as a data processor on behalf of an End Customer (as data controller), the ISV shall endeavour to enter into a lawful contract with the End Customer in a timely manner regarding the processing of personal data on behalf of the End Customer. To the extent that the ISV – in addition – identifies impactit to act as a further data processor (sub-processor) on behalf of the ISV as data processor, the ISV shall also work towards entering into a lawful contract with impactit in a timely manner regarding the sub-processing of personal data on behalf of the ISV.
7.8If the ISV does not act as a data processor on behalf of an End Customer (as data controller), the ISV shall assess whether, due to the End Customer’s use of the Service and/or the Integration, impactit is to be regarded as data processor on behalf of the End Customer and, if so, shall inform the End Customer in order to work towards entering into a lawful contract with impactit in a timely manner regarding the processing of personal data on behalf of the End Customer.
7.9If a contract is unlawfully lacking with regard to Sections 7.7 to 7.8, Section 9.3 shall apply.
7.10impactit is entitled to send automated e-mails to the e-mail address provided by the ISV, e.g. on the occasion of updates or to promote the Service. It is possible to unsubscribe from these e-mails at any time by using a link contained in the emails or by sending an unsubscribe e-mail.
7.11The ISV agrees to be contacted by impactit or companies affiliated with impactit within the Solvares Group GmbH by telephone or electronic message to the extent that impactit identifies a possible interest of the ISV in services and/or products, devices, solutions, applications or software of such companies.
7.12impactit is entitled to mention the ISV’s company name (with company logo, name and description of the App and Integration) as a reference user of the Service for promotional purposes, in particular on websites, social media (e.g. LinkedIn) and in emails.
7.13The use of the Service and/or the ISV Partner Portal technically requires the logging of certain data. This is written to server log files. Such information includes the URL, current date and time, data volume, client type and version, operating system, cookies, user identification, and IP address. impactit uses this data to provide the Service, for analysis purposes, to verify the use of the Service and/or the ISV Partner Portal in accordance with legal provisions and these portatour® ISV API Terms and Conditions, and to continuously improve the Service.
7.14The ISV shall use commercially reasonable efforts to prevent unauthorized access to, use of and/or benefit from both the Integration and the ISV Partner Portal and shall immediately notify impactit of any such unauthorized access, use and/or benefit.
8.1For a period of twelve months after the end of the ISV Agreement, the ISV shall not entice away, employ and/or otherwise engage any employees of impactit without the consent of impactit. Likewise, any participation in such actions carried out by third parties is prohibited. For each case of violation, the ISV shall pay a contractual penalty in the amount of the last gross annual salary of the employee. This shall not exclude claims for compensation for further damages.
8.2Prior to allowing End Customer and/or Field Reps to use and/or benefit from the Integration, the ISV shall ensure that End Customers and Field Reps have either
8.2.1directly accepted and remain bound by the portatour® EULA for Integrations as set out in the Appendix - either including the clauses marked as optional or not at the sole discretion of the ISV, or
8.2.2entered into and remain bound by an agreement with the ISV containing terms and conditions at least as protective in favor of impactit as the portatour® EULA for Integrations.
8.3The ISV shall not enter into any agreements with End Customers and/or Field Reps that attempt to bind impactit to any terms, conditions and/or liabilities, other than those set out in these portatour® ISV API Terms and Conditions.
8.4The ISV is solely responsible for providing support to End Customers and/or Field Reps.
8.5The ISV warrants that the performance of the ISV Agreement does not conflict with or violate any other agreement to which impactit or the ISV is a party and that the ISV is not a party identified on any governmental or export control lists.
9.1impactit shall only be liable for damages outside the statutory provisions of the Austrian Product Liability Act ("Produkthaftungsgesetz") to the extent that intent or gross negligence can be proven. In the event of negligence, the total amount of liability shall be limited to the Fees paid by the ISV within the twelve months prior to the occurrence of the damage. Liability for damages caused by slight negligence, consequential damages, financial losses, savings not achieved, lost profits, lost data, loss of interest and/or for damages arising from claims of End Customers and/or third parties against the ISV is excluded to the extent permitted by law. impactit's liability for misconduct of ISV and/or End Customers using the Service and/or Integration is also excluded.
9.2The ISV is solely responsible for any non-compliance of End Customers and Field Reps with the ISV’s obligations under these portatour® ISV API Terms and Conditions, including the Appendix - portatour® EULA for Integrations.
9.3The ISV shall indemnify and hold impactit harmless in connection with any and all damages caused by the ISV, End Customers and/or Field Reps as a result of illegal activities, including violation of third party rights, as well as as a result of a violation of the provisions stated in these portatour® ISV API Terms and Conditions, including the Appendix - portatour® EULA for Integrations, regardless of fault. This obligation of the ISV includes the reimbursement of the respective costs of representation necessarily and reasonably incurred by impactit.
9.4Any claim against impactit, for whatever legal reason, shall become statute-barred six months after knowledge thereof.
10.1Austrian law shall apply (excluding the principles and standards of the UN Convention on Contracts for the International Sale of Goods).
10.2As a general rule, the place of jurisdiction shall be Vienna. If the ISV is located outside of the EU or EFTA, all disputes shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules. The place of arbitration shall be Vienna. However, impactit reserves the right to sue the ISV at the ISV's usual place of jurisdiction as well.
11.1No verbal agreements have been made with regard to the ISV Agreement. Any changes must be made in writing.
11.2Should individual provisions of these portatour® ISV API Terms and Conditions be or become invalid, they shall be replaced by provisions that come closest to the economic purpose of the original. The validity of the remaining provisions shall not be affected by this.
[TO BE CONCLUDED BETWEEN THE ISV AND THE END CUSTOMER AS DESCRIBED IN SECTION 8.2]
This portatour® End User License Agreement for Integrations (“EULA”) applies additionally to any agreement between us and you regarding the provision of our integration (“Integration”) of the route-planning API portatour® (“portatour®”). portatour® is a brand of impactit GmbH, Wienerbergstraße 11/B14, 1100 Vienna (“impactit”).
To the extent specified below, this EULA shall also apply to the users of the Integration designated by you (“Users”).
Persons and companies that develop or distribute products that compete with the Integration and/or portatour® are excluded from conclusion of an agreement regarding the provision of the Integration.
The number of field staff or vehicles that can benefit from the Integration is limited to the respective agreed quantity (“Agreed Quantity”), e.g. the number of licenses issued for the Integration.
You and/or the Users may only use the Integration to the extent that is typical for an average use of the Integration (“Fair Use Principle”). In order to maintain the quality of the Integration, we are entitled to block access to the Integration after prior warning if the intensity of use is far above average.
You and/or the Users are expressly prohibited from:
Nothing in this EULA is intended to grant you and/or the Users any rights under any patents, copyrights, trademarks or trade secrets.
We may terminate the agreement with you regarding the provision of the Integration immediately for good cause.
Such good cause shall include, without limitation, if
Your and/or the Users’ access to the Integration ends upon termination of the agreement with you regarding the provision of the Integration.
When using the Integration, you are responsible for the lawfulness of the transmission of data to the Integration and for the lawfulness of the processing of the data.
You shall endeavour to enter into a lawful contract with us or impactit in a timely manner regarding the processing of data on your behalf to the extent that you and/or the Users intend to process or do process personal data via the Integration. If such a contract is unlawfully lacking, you shall indemnify and hold us or impactit harmless from any and all damages resulting from this, regardless of fault.
You and the Users assign to impactit any and all intangible property rights to all feedback, comments, suggestions for improvement, ideas, concepts, and changes that you and the Users provide in connection with the Integration and/or portatour®.
The use of the Integration technically requires the logging of certain data. This data is written to log files on the portatour® server. This information may include the current date and time, data volume, User identification and IP address. impactit uses this data for the provision of portatour®, for analysis purposes, for the occasional verification of legal use and for the continuous improvement of portatour®.
[OPTIONALLY TO BE INCLUDED BY THE ISV AS A FURTHER CLAUSE OF THIS SECTION “PRIVACY AND FEEDBACK”, SEE SECTION 4.1.4]
We and impactit may mention your company name (with company logo) as a reference user of portatour® and the Integration for promotional purposes, in particular on websites, on social media (e.g. LinkedIn) and in emails.
Version of 27.02.2023