1. Provider

The VZUAL Services are provided by:

VZUAL GmbH
Lieblgasse 20
1220 Vienna
Austria

Austrian Company Register Number: FN 677829 h
VAT Identification Number: ATU83263727

General and legal enquiries: info@vzual.com
Support enquiries: support@vzual.com

Hereinafter referred to as “VZUAL”.

3. Additional Definitions

“Activation Date” means the date on which the Customer is first granted access to the applicable Subscription.

“Annual Customer Fees” means all net Fees paid or payable by the Customer to VZUAL under the Agreement during the relevant Contract Year, excluding VAT, other taxes, reimbursed expenses, travel expenses, third-party charges and other pass-through costs.

“Contract Year” means each consecutive period of twelve months beginning on the Activation Date or an anniversary of the Activation Date.

“Initial Subscription Term” means the initial binding Subscription period of twelve consecutive months beginning on the Activation Date, unless a longer minimum period is expressly agreed in an Enterprise Order Form.

“Renewal Term” means each subsequent period of twelve months for which a Subscription is automatically renewed.

“Support Day” means Monday through Friday, excluding any day on which an official public or bank holiday is observed at national, federal, state, regional, provincial, territorial, constituent-country or union-territory level in any part of Austria, the United Kingdom, the United States of America or India.

“Support Hours” means 09:00 to 16:00 Vienna local time on Support Days.

13. Support

13.1 Standard email support is included with all paid Subscriptions unless a different support arrangement is expressly stated in an Enterprise Order Form or Service Level Agreement.

13.2 Support requests must be submitted by email to support@vzual.com.

13.3 Standard support is provided during Support Hours.

13.4 VZUAL shall provide an initial substantive response to a valid support request no later than 16:00 Vienna local time on the second Support Day following the day on which the support request is deemed received.

13.5 A support request received during Support Hours shall be deemed received on that Support Day.

13.6 A support request received outside Support Hours shall be deemed received at 09:00 Vienna local time on the next Support Day.

13.7 The response time constitutes a target for an initial qualified acknowledgement, assessment or request for additional information only. It does not constitute:

a. a guaranteed resolution time;

b. a guaranteed restoration time;

c. a guarantee that an error can be reproduced or corrected;

d. a service availability commitment; or

e. an obligation to provide a workaround within the response period.

13.8 Resolution times depend on the severity, complexity, reproducibility and cause of the reported issue, the availability of a technically reasonable solution and the Customer’s timely cooperation.

13.9 The Customer shall provide all information and access reasonably required to investigate the support request, including where applicable:

a. a sufficiently detailed description of the issue;

b. affected users, accounts and functionality;

c. reproduction steps;

d. screenshots, screen recordings or log files;

e. relevant Customer Content;

f. browser, device and operating-system information; and

g. information concerning connected third-party systems.

13.10 Any applicable response or processing period shall be suspended while VZUAL is awaiting information, access, files, decisions, approvals or other cooperation reasonably required from the Customer.

13.11 Standard support does not include:

a. custom development;

b. integrations;

c. data preparation or correction;

d. design services;

e. training;

f. support for third-party systems not controlled by VZUAL;

g. correction of Customer Content; or

h. services resulting from improper use of the Services.

Such services may be charged separately as Professional Services.

14. Fees, Billing and Proration

Enterprise Subscriptions

14.1 Enterprise Subscriptions:

a. are concluded exclusively through a separately accepted written Order Form;

b. have an Initial Subscription Term of at least twelve months;

c. are invoiced monthly in advance unless expressly stated otherwise in the applicable Order Form;

d. may include separate setup, onboarding, implementation, integration, development, training and Professional Services Fees; and

e. automatically renew in accordance with Section 25.

14.2 Monthly invoicing constitutes a payment arrangement only and does not create a monthly right of termination.

Single-Seat Subscriptions

14.3 Single-Seat Subscriptions may be purchased online and paid by credit card.

14.4 Every Single-Seat Subscription has an Initial Subscription Term of twelve months, irrespective of whether monthly or annual payment is selected.

14.5 The monthly payment option relates solely to billing frequency. It does not create a monthly cancellable Subscription or reduce the Customer’s payment commitment for the full twelve-month Subscription Term.

14.6 Where monthly calendar-based billing applies and a Subscription begins on a date other than the first day of a calendar month:

a. the first partial calendar month shall be charged pro rata from and including the Activation Date through the final day of that calendar month;

b. subsequent full calendar months shall be charged monthly in advance; and

c. any partial calendar month required at the end of the Subscription Term shall also be charged pro rata.

14.7 Pro-rata Fees shall be calculated using the actual number of calendar days in the relevant calendar month.

14.8 Where a Single-Seat Subscription is paid annually in advance, the annual Fee covers twelve consecutive months beginning on the Activation Date.

14.9 Except where expressly provided in the Agreement, Fees paid for an ongoing fixed Subscription Term are non-refundable.

16. Annual Price Adjustments

16.1 VZUAL may adjust recurring Subscription Fees once in connection with the beginning of each Renewal Term.

16.2 The Customer expressly agrees that VZUAL may increase recurring Subscription Fees by up to and including five percent compared with the recurring Fees applicable immediately before the relevant Renewal Term.

16.3 VZUAL shall notify the Customer of any price increase at least 60 calendar days before the beginning of the relevant Renewal Term.

16.4 A price increase shall not:

a. take effect during an already commenced fixed Subscription Term;

b. apply retroactively; or

c. occur more than once in respect of the same Renewal Term.

16.5 A price increase of up to and including five percent shall not provide the Customer with an extraordinary termination right. The Customer may prevent renewal by exercising its ordinary termination right under Section 25.

16.6 If VZUAL proposes an increase exceeding five percent:

a. the Customer may exercise an extraordinary right of termination immediately after receiving the price-increase notice;

b. the termination notice must be received by VZUAL within 30 calendar days after the Customer receives the price-increase notice;

c. termination shall take effect at the end of the current Subscription Term, immediately before the increased price would otherwise become effective; and

d. no increased Fee shall be charged if the Customer validly exercises this termination right.

16.7 If the Customer does not exercise the extraordinary termination right within the period specified in Section 16.6, the notified price shall apply from the beginning of the relevant Renewal Term.

16.8 Changes to VAT, taxes, public charges, legally mandated costs and separately invoiced third-party or pass-through costs do not count towards the five-percent limit.

16.9 Fees resulting from additional users, modules, storage, usage capacity, environments, integrations, services or other Customer-requested changes are not price adjustments within the meaning of this Section.

16.10 An Enterprise Order Form may contain a lower maximum price increase, a fixed price period or another individually negotiated pricing arrangement. The Enterprise Order Form shall prevail where it expressly deviates from this Section.

25. Subscription Term, Automatic Renewal and Termination

25.1 Every Subscription has an Initial Subscription Term of twelve consecutive months unless a longer minimum term is expressly stated in an Enterprise Order Form.

25.2 Following the Initial Subscription Term, each Subscription shall automatically renew for successive Renewal Terms of twelve months each.

25.3 Either party may prevent an automatic renewal by giving notice of ordinary termination at least 30 calendar days before the end of the then-current Initial Subscription Term or Renewal Term.

25.4 Ordinary termination shall take effect only at the end of the applicable fixed Subscription Term.

25.5 A notice of ordinary termination received fewer than 30 calendar days before the end of the current Subscription Term shall not prevent the immediately following automatic renewal and shall take effect at the end of that following Renewal Term.

25.6 Single-Seat Customers may give notice of termination:

a. through any cancellation function made available in their VZUAL account; or

b. by email to info@vzual.com.

25.7 Enterprise Customers shall give notice of termination in the manner specified in the applicable Order Form or, where no specific method is stated, by email to info@vzual.com.

25.8 Monthly invoicing or monthly credit-card charging does not create a monthly termination right.

25.9 Termination does not release the Customer from its obligation to pay all Fees attributable to the applicable fixed Subscription Term.

25.10 Fees already paid for the current fixed Subscription Term shall not be refunded except:

a. where expressly provided in the Agreement;

b. where VZUAL validly agrees otherwise in writing; or

c. to the extent required by mandatory law.

25.11 The parties’ respective rights to terminate for material breach, an increase exceeding five percent under Section 16.6 or another contractually agreed or mandatory legal reason remain unaffected.

31. Liability

31.1 The provisions of this Section apply to all contractual and non-contractual claims arising from or relating to the Agreement, the Services, Professional Services, Customer Outputs or any Order Form, irrespective of the legal basis of the claim.

Mandatory Liability

31.2 Nothing in the Agreement excludes or limits VZUAL’s liability:

a. for damage caused intentionally by VZUAL;

b. for death, personal injury or damage to health;

c. under mandatory product-liability law; or

d. to the extent that liability cannot lawfully be excluded or limited.

Slight Negligence

31.3 To the maximum extent permitted by applicable law, VZUAL shall not be liable for damage caused by slight negligence.

Gross Negligence

31.4 Subject to Section 31.2, where damage is caused by gross negligence, VZUAL shall only be liable for direct damage that:

a. is the immediate consequence of the relevant breach;

b. was reasonably foreseeable as a typical consequence of that breach when the Agreement was concluded; and

c. could not reasonably have been avoided or reduced by the Customer.

31.5 Liability for gross negligence is subject to the Annual Liability Cap set out below.

Annual Liability Cap

31.6 Subject to Section 31.2, VZUAL’s total aggregate liability for all claims, losses, damages, costs and other amounts arising in or attributable to any Contract Year shall not exceed the Annual Customer Fees for that Contract Year.

31.7 Where the event giving rise to liability occurs during the first Contract Year before twelve months have elapsed, the liability cap shall equal the total net Fees paid or payable by the Customer for the affected Services during the entire first twelve-month Subscription Term.

31.8 Where an Agreement covers more than one Service or Order Form, the liability cap shall be calculated solely by reference to the Fees paid or payable for the Service or Order Form directly affected by the event giving rise to the claim.

31.9 The liability cap applies in aggregate and not separately:

a. to each individual incident;

b. to each claim;

c. to each legal basis;

d. to each Authorised User;

e. to each affected file, design, rendering or item of Customer Content; or

f. to each person making a claim through or on behalf of the Customer.

31.10 Multiple claims, events, breaches or losses arising from the same, similar or substantially connected facts, circumstances, defect, failure, omission or root cause shall be treated as a single claim.

31.11 Unless expressly stated otherwise in an Enterprise Order Form, the Annual Liability Cap also applies to claims relating to:

a. confidentiality;

b. data protection;

c. information security;

d. intellectual property;

e. indemnification obligations;

f. Professional Services;

g. subcontractors; and

h. acts or omissions of VZUAL’s employees, representatives and agents.

Excluded Losses

31.12 Subject to Section 31.2 and to the maximum extent permitted by applicable law, VZUAL shall not be liable for:

a. indirect, incidental, special or consequential damage;

b. loss of profit, turnover, revenue, margin or anticipated savings;

c. loss of contracts, orders, customers, business opportunities or expected benefits;

d. loss of goodwill, reputation or brand value;

e. production stoppages, production delays or reduced production capacity;

f. material waste, scrapped products or increased manufacturing costs;

g. costs of reproducing, correcting, replacing, withdrawing, recalling or destroying physical products;

h. costs arising from missed production, delivery, launch or market deadlines;

i. deviations between a digital visualisation, simulation, rendering or prototype and a physical product;

j. differences in colours, metallic effects, gloss, texture, transparency, holographic effects, lighting or other visual or material properties;

k. loss resulting from inaccurate, incomplete, defective or unlawful Customer Content;

l. loss resulting from instructions, specifications, approvals or decisions provided by the Customer;

m. loss resulting from the Customer’s failure to conduct appropriate physical proofs, production tests, colour checks, technical validation or quality assurance;

n. loss caused by third-party software, services, hosting, storage, APIs, networks, equipment or infrastructure not controlled by VZUAL;

o. unauthorised access resulting from the Customer’s systems, devices, credentials, integrations or management of user permissions;

p. loss, corruption or unavailability of data to the extent that the Customer failed to maintain reasonable and current independent backups; or

q. claims made against the Customer by its own customers, business partners, manufacturers, suppliers or other third parties, except where VZUAL has expressly accepted responsibility for such claims in writing.

Data Restoration

31.13 Where VZUAL is liable for loss or corruption of data, its liability shall be limited to the reasonable cost of restoring the affected data from the most recent appropriate backup that the Customer was contractually or reasonably expected to maintain.

Customer Obligations

31.14 The Customer shall take all reasonable steps to prevent, minimise and mitigate any damage.

31.15 VZUAL shall not be liable to the extent that damage was caused or increased by:

a. an act or omission of the Customer;

b. the Customer’s failure to follow Documentation or reasonable instructions;

c. delayed reporting of an issue;

d. unauthorised modifications;

e. continued use after the Customer became or reasonably should have become aware of a material issue; or

f. the Customer’s failure to take reasonable mitigation measures.

Enterprise Agreements

31.16 An Enterprise Order Form may expressly provide for:

a. a different liability cap;

b. separate liability caps for particular risks;

c. a higher cap in return for an additional Fee; or

d. expressly agreed liability exclusions.

Any such provision shall prevail only to the extent that it expressly deviates from this Section.