Terms of Use

1. Preamble

1.1 Zerogap e.U., Silbergasse 22, 1190 Vienna, FN 650505a (hereinafter "Zerogap") offers the customer a cloud-based platform ("Goprofile.ai") (hereinafter "Platform") that enables the customer to optimize their business processes using artificial intelligence. The platform allows specific work steps to be analyzed, automated, or optimized. This is not a consulting service or agency service, but the provision of a digital infrastructure for self-application by the user.

1.2 The use of the platform is exclusively subject to the applicable legal provisions, particularly in compliance with the General Data Protection Regulation (GDPR). All stored or processed data remains within the European Union on GDPR-compliant servers.

2. Scope of Application

2.1 The contractual relationship between Zerogap and the customer is exclusively governed by these Terms of Use. Any terms and conditions deviating from, supplementing, or contradicting these Terms of Use, including any General Terms and Conditions (GTC) of the customer, shall only become part of the contract if expressly accepted in writing by Zerogap. Such terms and conditions shall only apply to the specific individual transaction in these cases.

2.2 These Terms of Use shall apply in their respective versions as a framework agreement for future contracts related to the platform without Zerogap having to refer to these Terms of Use each time. Zerogap will inform the customer of any changes to these Terms of Use without undue delay. The current and valid version of these Terms of Use is published on Zerogap's homepage at goprofile.ai/terms.

2.3 Changes to the Terms of Use in ongoing continuing obligations shall become effective if the amended Terms of Use are communicated to the customer in text form at least 6 weeks before the changes take effect. If the changes do not merely confer a legal advantage on the customer or if only editorial changes are made (e.g., correction of obvious inaccuracies), the customer is entitled to object to the amended Terms of Use in writing before they take effect.

2.4 Individual contractual agreements shall prevail over these Terms of Use in all cases; the same applies to specifications or service descriptions of the platform.

3. Subject of the Contract

3.1 The customer will be provided with the platform in accordance with the service description in its current version for a fee and will be granted the right to use the platform for a fee in accordance with Section 4 of these Terms of Use.

3.2 Zerogap may engage third parties (subcontractors) and employees of third parties to fulfill its contractual obligations. The provision of services shall, unless otherwise agreed, take place in Zerogap's premises.

3.3 The service description in its current version is conclusive and solely decisive for the scope of Zerogap's obligations. The customer cannot derive any rights from other representations of the platform, particularly in non-public statements or advertising materials from Zerogap, as well as from its employees and/or sales partners. Such statements and/or advertising materials do not constitute "expressly guaranteed characteristics" within the meaning of §§ 922 et seq. ABGB.

3.4 The platform is operated on secure servers within the European Union.

4. Use of the SaaS Solution

4.1 Zerogap provides the customer with the platform in its current version via the internet (accessible at app.goprofile.ai). For this purpose, Zerogap sets up the platform on its server infrastructure, which can be accessed by the customer via the internet using a "Shared Application" or similar technology. The activation of the platform is carried out in accordance with Section 6. The platform remains on Zerogap's server infrastructure.

4.2 Zerogap grants the customer the right to use the platform on Zerogap's servers for the duration of this contract, free of charge, non-exclusively, and non-transferably, in accordance with these Terms of Use, solely for the customer's business purposes and those described in the service description.

4.3 The customer may only reproduce the platform to the extent necessary for its intended use according to the current service description. Necessary reproduction includes loading into the working memory but does not include temporary installation or storage of the platform on data carriers (such as hard drives or similar) of the hardware used by the customer.

4.4 The customer is entitled to set up access for users to the platform and, in this context, to pass on corresponding access data to the users. The customer is obligated to ensure that all users comply with these Terms of Use and to indemnify Zerogap against all damages and costs, including attorney and court fees, arising from any breach of these Terms of Use by the users.

4.5 If products from third parties are recognizably part of Zerogap's services, the customer acknowledges additional terms of use and license agreements from these third parties and grants them the right to assert these terms of use and license agreements directly against the customer or the users provided with access data to the platform by the customer. The revocation of usage rights by third parties due to the customer's or a user's conduct does not affect the customer's contractual obligations towards Zerogap; Zerogap is also not responsible for any restrictions resulting from the revoked usage rights. The same applies to all terms of use and license agreements of third-party products that Zerogap has separately pointed out to the customer during the conclusion of the contract.

4.6 In the event of violations of these Terms of Use (particularly violations of the obligations stipulated in Section 9), Zerogap has the right, at its discretion, to revoke the affected users' access authorization to the platform, either temporarily or permanently, and/or to block the affected users temporarily or permanently.

4.7 The customer is entitled to free updates resulting from Zerogap's continuous system optimization. Zerogap is entitled to install or provide these updates without prior consultation with the customer.

5. Provision of Storage Space

5.1 Zerogap provides the customer with the required storage space for data generated by the customer through the use of the platform and/or data required for the use of the platform on its server infrastructure within the usual volume ("fair use"). The customer or the users provided with access data to the platform by the customer can store data and content on these servers using the storage space provided to the customer. Zerogap is only obligated to provide storage space. Zerogap ensures that the stored data is accessible in accordance with Section 4.1.

5.2 The customer is not entitled to make the storage space available to third parties, in whole or in part, for a fee or free of charge.

5.3 All rights to the data remain with the users in any case, and they are therefore entitled at any time to request the release or deletion of individual or all data. The release of data is carried out in accordance with Section 16 of this contract.

6. Usage Fees and Payment Terms

6.1 The use of the platform is free of charge for a customer during the initial use in the test phase (see Section 15). For the use of the platform, the prices listed at goprofile.ai/pricing apply unless otherwise stated in the respective offer. All prices are in EUR exclusive of statutory taxes and duties unless otherwise specified. Billing is based on the users activated by the user on the platform.

6.2 Billing occurs on the first day of a month for the respective month in advance based on the users activated by the user on the platform on that day. If additional users are activated by the user during the month, billing will be carried out immediately on a pro-rata basis for the (remaining) month. If billing is done via a (stored) payment method, the customer expressly agrees that Zerogap is entitled to charge the payment method provided by the customer accordingly.

6.3 Zerogap is entitled to invoice the customer for services ordered after prior notice and a reasonable period if the customer delays or refuses the provision or performance by Zerogap.

6.4 If the customer defaults on a significant portion of the agreed fee for more than 2 weeks, Zerogap is entitled, after setting a reasonable grace period, to suspend or terminate all services for the customer. Any usage-independent fees remain due even if Zerogap suspends or terminates the services.

6.5 In the event of default, the customer is obligated to pay interest at a rate of 10% per annum to Zerogap.

7. Activation and Access Data

7.1 After the conclusion of the contract, Zerogap will provide the customer with the login data for the platform in the number of ordered user accounts. Upon request, Zerogap will support the customer in setting up the platform for the customer's purposes or in setting up the user accounts. Zerogap reserves the right to charge a fee for this support service according to the price list available at goprofile.ai/pricing.

7.2 Upon request by Zerogap, the customer will cooperate in all of Zerogap's activities, particularly by providing employees, hardware, software, data, and telecommunication facilities (business-capable internet access) at their own expense.

7.3 If the customer adds additional users or locations directly via the platform or uses additional variable fee components according to the price list available at goprofile.ai/pricing beyond the originally agreed terms, the customer accepts the additional monthly costs according to the currently valid price list at the time of addition by adding the additional users or locations or by using the additional variable fee components (clicking the "Save & Activate" or "Save" buttons constitutes acceptance of the contract by the customer in these cases).

7.4 The customer is aware that Zerogap is not obligated to separately provide the information according to § 9 para. 1 and 2 ECG in the case of a mutual commercial transaction. Furthermore, the provisions of § 10 para. 1 and 2 ECG are mutually waived.

7.5 In particular, but not exclusively, for the purposes of Section 7.3, Zerogap is entitled at any time to conduct audits of the licenses to verify the sufficient number or sufficient usage rights of the customer. If this audit reveals that the customer has activated or used accounts beyond the originally ordered number of users, Zerogap is entitled to charge the difference in user accounts with the next monthly billing for the accrued billing periods and subsequently in advance according to Section 6.2. The same applies to the other variable fee components (e.g., number of active locations, number of personnel service providers, etc.) according to the respectively valid price list available at goprofile.ai/pricing.

7.6 The access data may only be used by the users within the scope and extent of this contract, which the customer must ensure accordingly. The access data of users may not be passed on to third parties for any purpose. Zerogap is entitled to change the access data at any time for security and/or administrative reasons and to notify the affected user of the new access data in writing (email is sufficient).

7.7 Each user is obligated to keep their personalized access data confidential. Furthermore, the user is obligated to secure their connection, end devices, and access data against unauthorized access by third parties.

7.8 The customer is obligated to ensure that the users attributable to them comply with Sections 7.6 and 7.7 and will indemnify Zerogap against all damages and costs in the event of a breach of the obligations stipulated in Sections 7.6 and 7.7 by a user attributable to them.

8. Intellectual Property Rights

8.1 All rights to the platform, particularly any copyrights, trademarks, utility models, and patents, belong exclusively to Zerogap. This also applies to any modifications, additions, and further developments of the platform or parts thereof made by Zerogap in any context and form. The customer or users are only granted the limited usage rights described in Section 4 of this contract for the duration of the contractual relationship.

8.2 The customer has no right to the source code of the platform. The customer acknowledges the existence of Zerogap's intellectual property and that of any third parties and will not take any action that impairs its value. The customer will prevent unauthorized use of the platform by third parties, particularly by the users attributable to them. This applies even after the termination of this contract.

8.3 Zerogap is entitled to publish its copyright claims in a freely designed manner by indicating the copyright symbol, the linked company name, logos, and the year in the platform and in documents generated by the platform.

9. Customer Obligations

9.1 The customer irrevocably confirms that they have thoroughly informed themselves about all functional features of the platform. They have, in particular, ensured that the platform meets their wishes and needs.

9.2 Upon request by Zerogap, the customer will designate a representative authorized to make binding decisions and issue instructions, as well as a deputy.

9.3 Notwithstanding Zerogap's obligation to ensure data security, the customer is responsible for entering and maintaining the data and information required for using the platform.

9.4 The customer undertakes not to store any content on the storage space provided by Zerogap that violates applicable law or the rights of third parties. The customer will impose this obligation on the users attributable to them. The customer will indemnify Zerogap against all claims asserted by third parties due to the infringement of their rights or legal violations based on the data and content posted by the customer or the users attributable to them. The customer will also bear the costs of Zerogap's legal defense, including all court costs.

9.5 The users are obligated to check all data and information for viruses or other harmful components before entering them and to use virus protection programs and install firewalls according to the current state of the art. The customer undertakes to refrain from any measures that endanger or disrupt the functionality of the platform and not to access data to which they are not authorized. The customer will, in particular, ensure that access authorization to the platform is regulated before being viewed and used by unauthorized persons. The customer will impose all obligations incumbent on them under this contractual provision on the users attributable to them. The customer undertakes to compensate Zerogap for all damages resulting from the non-compliance with the obligations stipulated in this contractual provision and to indemnify Zerogap against all claims by third parties, including all attorney and court fees, arising from the non-compliance with these obligations by the customer.

9.6 The content stored by the customer or users on the storage space intended for the customer may be subject to copyright and/or data protection laws. The customer hereby grants Zerogap (also on behalf of the users attributable to them) the right to reproduce the data to be stored by Zerogap for the customer to the extent necessary to provide the services owed under this contract. Zerogap is also entitled to keep the data in a fallback data center. To remedy disruptions, Zerogap is also entitled to make changes to the structure of the data or the data format. The customer undertakes to compensate Zerogap for all damages resulting from the non-compliance with the obligations stipulated in this contractual provision and to indemnify Zerogap against all claims by third parties, including all attorney and court fees, arising from the non-compliance with these obligations by the customer.

9.7 The customer grants Zerogap access via remote access for the purpose of troubleshooting and bug fixing in connection with the platform.

9.8 The customer will cooperate in the investigation of attacks by third parties on the platform to the extent that such cooperation by the customer is necessary. The customer will also impose this obligation on the users attributable to them.

9.9 The customer is obligated to provide and keep up-to-date a payment method accepted by the platform or the necessary data for charging within 30 days of the platform's activation at the latest. Zerogap is entitled to request updated payment information from the customer's payment service provider or receive it, including the credit card number, expiration date, and security code (or a comparable feature) if the customer's payment information changes or is about to expire. The customer authorizes Zerogap to continue charging the credit card using the updated information. If a due payment cannot be processed successfully because the payment method has expired, due to insufficient funds, or for other reasons attributable to the customer, Zerogap may suspend or terminate the contract.

10. Data Backup

10.1 Zerogap will perform a daily backup of the customer's or users' data on the servers. The backup is performed in a rolling manner, so the data backed up for one weekday is overwritten during the backup for the following same weekday. Similarly, a weekly backup is performed, where the data is also overwritten in a rolling manner after 4 (four) weeks.

11. Warranty

11.1 Zerogap provides a warranty for the platform in accordance with the statutory provisions and the conditions stipulated in this contract. The functionality of the platform is solely determined by the service description in its current version. Furthermore, Zerogap warrants that the contractual use of the platform by the customer does not infringe any third-party rights.

11.2 Zerogap will provide the platform in a condition suitable for contractual use and maintain it in such a condition. The obligation to maintain does not include adapting the platform to changed usage conditions and technical and functional developments, such as changes in the IT environment, particularly changes in hardware or the operating system, adapting to the functionality of competing products, or ensuring compatibility with new data formats.

11.3 The assertion of warranty claims by the customer depends on defects being reported in writing within 2 (two) weeks of their first discovery and being reproducible. The customer must prove the existence of a defect and that it was already present at the time of transfer; the statutory presumption under § 924 ABGB does not apply. The customer will support Zerogap in identifying and rectifying defects and grant Zerogap immediate access to all relevant documents.

11.4 In the event of material defects, Zerogap always has the option to remedy the defect by improvement (rectification or completion of the missing part) or replacement. For this purpose, Zerogap will provide the customer with a new, defect-free access to the platform at its discretion. Rectification also includes showing the customer reasonable ways to prevent the effects of the defect (reasonable workaround).

11.5 In the event of legal defects, Zerogap always has the option to remedy the defect by improvement. Zerogap will, at its discretion, provide the customer with a legally compliant usage option of the platform in accordance with these Terms of Use and any individually agreed contractual terms or with an equivalent version (reasonable workaround).

11.6 The customer must accept a new or modified version within the scope of the warranty if the contractual scope of functions is maintained and the acceptance does not result in significant disadvantages for the customer that the customer must prove (reasonable workaround).

11.7 As long as the customer has not yet paid the agreed remuneration in full and has no justified interest in withholding the outstanding remuneration, Zerogap is entitled to refuse subsequent performance.

11.8 If third parties assert claims that hinder or prevent the customer from using the platform in accordance with the contract, the customer must inform Zerogap immediately (at the latest within one week) in writing and comprehensively. If the customer is sued by third parties due to the use of the platform, the customer must coordinate all steps in this regard with Zerogap and must not take any legal actions, particularly acknowledgments or settlements, without Zerogap's consent. In this context, Zerogap is obligated to indemnify the customer unless the third-party claims are based on the customer's breach of duty. In the latter case, the customer must indemnify Zerogap.

11.9 The limitation period for all warranty claims is 6 (six) months and begins with the activation of the platform according to Section 7.

11.10 If Zerogap provides services, e.g., in connection with the search for defects claimed by the customer, without an actual defect being present, Zerogap may charge a fee for the time spent based on Zerogap's current hourly rates. This applies particularly if a defect claimed by the customer cannot be proven/reproduced or if costs are incurred because the customer has not fulfilled their obligations, particularly according to Section 9.

12. Liability

12.1 Zerogap is only liable for intent and gross negligence. In the case of slight negligence of a material contractual obligation in a manner that endangers the purpose of the contract, Zerogap is liable up to the amount of the foreseeable damage, but at most up to the amount of the usage fee due to Zerogap for one contract year according to the contractual agreements. In any case, Zerogap is not liable for indirect damages, consequential damages resulting from defects, or lost profits.

12.2 When determining whether Zerogap is at fault, it must be considered that software solutions like the SaaS solution in question generally cannot be created entirely free of technical errors.

12.3 The liability limitations according to Section 12.1 do not apply to liability for personal injury, fraudulent concealment of defects, and liability under the Product Liability Act.

12.4 The aforementioned provisions also apply in favor of Zerogap's vicarious agents and representatives.

12.5 If services provided by Zerogap are used by unauthorized third parties using the customer's access data, the customer is liable for the resulting fees within the scope of civil liability until Zerogap receives the customer's request to change the access data or the notification of the loss or theft.

12.6 Zerogap is entitled to immediately block the storage space if there is reasonable suspicion that the stored data is unlawful and/or infringes the rights of third parties. Reasonable suspicion of unlawfulness and/or infringement exists, in particular, if courts, authorities, and/or other third parties inform Zerogap of such circumstances. Zerogap will inform the customer in writing about the blocking and the reason for it. Zerogap is only obligated to lift the blocking if the customer proves that the reasonable suspicion of unlawfulness and/or infringement is unfounded.

13. Support / Functional Disruptions / Maintenance

13.1 Zerogap will respond to the customer's inquiries regarding the application of the platform and/or other services as quickly as possible after receipt of the respective inquiry, either via a service ticket system or email, but no later than within 2 business days.

13.2 The monitoring of the platform's basic functions is performed daily. In the event of severe errors or disruptions that prevent or significantly impair the use of the platform, maintenance/rectification will be carried out on weekdays within 4 hours. Zerogap will inform the customer about the maintenance work immediately and carry it out as quickly as possible according to the technical conditions.

13.3 Zerogap strives to ensure that adjustments, changes, and additions to the platform, as well as measures to identify and rectify functional disruptions, only result in temporary interruptions or impairments if technically necessary.

14. Confidentiality and Data Protection

14.1 The customer is responsible for obtaining the necessary consent declarations from their users and contractual partners in accordance with the provisions of the GDPR and all national data protection regulations (particularly the Data Protection Act - DSG, Federal Law Gazette I 165/1999 in its current version). The data protection and data security provisions are regulated in a separate contract between the customer and Zerogap.

14.2 Zerogap undertakes to maintain confidentiality regarding all confidential matters, particularly business and trade secrets of the customer, that come to its knowledge in the course of preparing, executing, and fulfilling this contract. This applies to any unauthorized third party, particularly also to unauthorized employees of both Zerogap and the customer, unless the disclosure of information is necessary for the proper fulfillment of Zerogap's contractual obligations. In case of doubt, Zerogap will obtain the customer's consent before disclosing such information.

14.3 The customer undertakes to treat all business, technical, and scientific know-how obtained in connection with the fulfillment of the contract by Zerogap as strictly confidential and to only make it available to third parties with Zerogap's express written consent. Furthermore, the customer undertakes not to file any intellectual property rights applications based on the know-how obtained in connection with the fulfillment of the contract by Zerogap. The customer will only grant access to the platform to employees and other third parties if it is absolutely necessary for the contractual use. The customer guarantees to impose the obligations of this contract, particularly this contractual provision, on these persons and to indemnify Zerogap in this context.

14.4 The obligation to maintain confidentiality does not apply if the matters and know-how according to Sections 14.2 and 14.3

a) were demonstrably known to the contractual partner before the disclosure,

b) were known to the public or generally accessible before the disclosure,

c) become known to the public or generally accessible after the disclosure without the involvement or fault of the informed contractual partner,

d) essentially correspond to information that the informed contractual partner is provided with or made accessible by an authorized third party at any time.

14.5 The obligation to maintain confidentiality ends 3 years after the termination of this contract, unless statutory provisions stipulate a longer confidentiality period.

15. Term and Termination

15.1 The contract between Zerogap and the customer is concluded for a term of 1 month from the activation of the platform for the customer, during which the customer is entitled to terminate the contract without giving reasons ("trial phase"). If the contract is not terminated, it is deemed to be concluded for an indefinite period and can be terminated in writing with a notice period of one month to the end of any month.

15.2 The right to extraordinary termination of the contract for good cause remains unaffected. Good cause for Zerogap includes, in particular, if

a) the customer fails to make due payments despite a reminder or violates essential provisions of this contract and does not remedy the violation within a grace period of 14 days after receipt of a written notice regarding this violation;

b) the customer misuses the platform, particularly by violating the obligations stipulated in Section 9;

c) the customer does not accept the changes to these Terms of Use notified to them according to Section 2.3.

16. Consequences of Termination

16.1 Upon termination of this contract, Zerogap will block access to the platform. All contractually agreed fees for the use of the platform and the provision of storage space become due immediately, if applicable on a pro-rata basis.

16.2 For up to 30 days after the termination of the contract, the customer has the option to export their data via download. For this purpose, Zerogap will provide the customer with their data in a readable format and support them with the data export if necessary. The customer has no right to also receive the platform suitable for using the data.

16.3 After the expiration of the period according to Section 16.2, Zerogap will irreversibly delete the content.

17. Final Provisions

17.1 The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is the competent regional court in 1190 Vienna.

17.2 This contract is governed exclusively by Austrian law, excluding all conflict-of-law rules and the UN Convention on Contracts for the International Sale of Goods (CISG).

17.3 All annexes are an integral part of this contract. This contract is conclusive, and there are no side agreements, particularly no verbal ones. Any amendments and/or additions to this contract must be in writing; this also applies to any deviation from this written form requirement.

17.4 If any provision of this contract is or becomes invalid, the validity of the remaining provisions shall not be affected. The parties will agree on a valid provision that comes as close as possible to the intended economic purpose. The same applies if this contract unintentionally contains any gaps.

17.5 The customer grants Zerogap the revocable right to publish the customer's company logo and name on Zerogap's website and promotional materials for advertising purposes and to set hyperlinks to the customer's company website for the duration of this contract.