> 1. Acceptance
By placing a purchase order for a subscription to SaaS, or by installing the Software on-premise, or by accessing, or using the Software, you agree to be bound by these Terms of Use.> 2. License Grant for Software (on-premise)
If you purchase a Software subscription for on-premise deployment, subject to your full payment of the subscription fees and ongoing compliance with these Terms of Use, we grant you a non-exclusive, non-sublicensable, non-transferable, license, during the fixed Subscription Period, to download, install and use the Software for your own Internal Purposes, limited to the agreed number of Data Elements and the agreed Territory. Your Authorized Users may install and use the Software on the same terms. Further, during the Subscription Period you may make one copy of the Software for internal testing, backup and archival purposes. The Software contains open source libraries, which are subject to separate license terms. We make these separate license terms available together with the Software.> 3. Web Services (SaaS)
If you purchase subscriptions for the Txture SaaS service, subject to your full payment of the subscription fees and ongoing compliance with these Terms of Use, we will provide the Web Service to you during the fixed Subscription Period. You may access and use the Web Service solely for your Internal Purposes and limited to the agreed number of Data Elements. Your Authorized Users may access and use the Web Service on the same terms. We will make the Web Service available to you consistent with the manner in which we make it generally commercially available to users with the same subscription as you. The Web Service and its specification are subject to change without prior notice.> 4. All Rights Reserved
You acknowledge and agree that we and our licensors and suppliers will have all ownership of and all rights with respect to the Software and the Web Service and any other information or material we may provide or make available to you, as well as any copies of the foregoing, or any materials or other information based on, derived from or otherwise using any of the foregoing. The structure and organization, the underlying algorithms, the protocols, data structures, the source code and the APIs constitute our proprietary and confidential information, and you will not disclose such information to third parties other than as required for the use of the Software in the ordinary course of business. Except for the specific licenses granted herein, we reserve all other rights in and to the Software and the Web Service.> 5. Feedback
You do not have any obligation to provide us with suggestions, feedback, improvement requests or recommendations. However, if you or your Authorized Users choose to do so, you hereby grant us a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate any such suggestions, feedback, improvement requests or other recommendations, relating to the Software or the Web Service.> 6. Account and Credentials
Use of the Software or the Web Service requires you to create a personal user account for you and every one of your Authorized Users. In the case of our Web Service, you will need to provide the Account Information to us in order to create these user accounts. In the case of Software, you will create these user accounts yourself in the Software. In both cases, you must ensure that the Account Information is not shared between different users. You are responsible for any actions taken by users with access to your Account Information.> 7. Tests, Demos and Trials
If we make the Software and/or Web available as a test, demo and/or trial environment, whether paid or for free, you and your Authorized Users may access and use it during the Trial Period granted by us, for your internal trial and evaluation, training, pre-production testing purposes only.> 8. Your content
You continue to own all rights to Your Content. We will not use Your Content except (a) as is necessary to provide the WebService and any related maintenance or support services; (b) on an anonymized basis for quality control, product analysis, and product improvement purposes during the term and after expiration or termination of your subscription; or (c) as may be required to comply with our legal obligations.
You are responsible for all of Your Content and for ensuring that Your Content and its use with the Web Service complies with all applicable laws and regulations and these Terms of Use. You warrant that Your Content will not infringe or misappropriate any intellectual property or proprietary rights of any person or violate any applicable laws or regulations. You acknowledge that Web Services may suffer occasional disruptions or outages, and you may not be able to retrieve Your Content as a result. We recommend that you regularly backup Your Content to your own storage. You are at all times responsible for storing and maintaining any such backup copies of Your Content.> 9. Obligations and Restrictions
The Software and/or the Web Service provides access to certain cloud market insights and provider options. It is intended solely for professional users who are experts in information technology. The Software and/or the Web Service is not intended to replace an independent technical and commercial assessment of your specific cloud transformation requirements. You must always use your own expertise, independent technical and business judgment before adopting or implementing any automated suggestions, recommendations, calculations or information provided by the Software or the Web Service. If you make a decision based on any such suggestion, recommendation, calculation, or information, we will not be responsible for any specific outcome.
You must ensure that you and your Authorized Users always comply with all laws applicable to your (and their) use of the Software or the Web Service. It is your responsibility to obtain any consents or permissions which may be required from third parties, before you upload any data to our Web Service.
You may not: (a) resell or transfer the benefit, functionality or use of the Software or Web Services, including any outputs provided or displayed by them, to any third parties; (b) send automated service requests to the Software or the Web Service, embed them in other software or web services, scrape or reverse engineer the Software or the Web Service, or participate in, or support any such activity; (c) use the Software or the Web Service outside of the Territory or in excess of the agreed number of Data Elements; or (d) use the Software on-premise or as Web Service in connection with any inherently dangerous application, including any application that could result in death, personal injury, catastrophic damage or mass destruction.> 10. Service Suspension or Interruption
We strive to keep interruptions of our Services to a minimum. However, unless agreed with you individually in writing, we do not guarantee any particular uptime for the Web Service and we will not have any responsibility for temporary service interruptions.
In any event, way may suspend or inactivate your user accounts if (1) we detect activity which we determine may be suspicious or harmful to the Web Service; (2) you or any of your Authorized Users breach these Terms of Use; or (3) you do not pay us (or the reseller from whom you purchased) the agreed subscription fees when due.> 11. Term and Termination
Your subscription will be valid during the Subscription Period, unless terminated earlier in accordance with this section 11. At the end of each Subscription Period your subscription will automatically renew for another period equal to the previous Subscription Period, unless either party terminates the Subscription by email or in writing no later than 14 days before the respective renewal date.
During any Subscription Period, either party may terminate the subscription early with immediate effect if the other party breaches these Terms, is liquidated, becomes insolvent or, in your case, fails to pay the agreed subscription fee when due.
If your subscription expires or terminates, you must download and save Your Content on your computer within 24 hours and otherwise stop using the Web Service or, in the case of Software on-premise deployment, deinstall the Software immediately.> 12. Limited Warranty
Trials (whether paid or unpaid) are made available as-is and without any warranty or liability.
Web Services are provided as described in this document. To the fullest extent permitted by law, any warranty claims in relation to the Web Service are excluded.
For Software, you acknowledge and agree that, like any computer program, our Software is not error-free and that we will have no obligations with respect to errors that do not materially impair its functionality. If you purchased this Software directly from us, we warrant that the Software will provide the general features and functions described in the specification, provided that your hardware and software environment continues to meet the minimum system requirements which we may communicate from time to time. Unless otherwise agreed in writing, our warranty period is 90 days from the date of purchase. Your only remedy for any breach of this warranty will be that we will, at our option, (a) attempt reasonably to remedy the breach or (b) refund any subscription fees you paid us during the warranty period and to terminate the subscription early.
In any case, you acknowledge and agree that any recommendation, calculation or information, including any third party pricing information, provided by the Software or the Web Service, is for informational purposes only.> 13. Limited Liability
In no event shall either party be liable to the other party for slight negligence, consequential damages, purely financial damages (bloße Vermögensschäden), loss of data or lost profits. For all other claims, each party’s aggregate liability shall be limited in amount to the subscription fees paid or payable to us during the previous 12 months preceding the claim.> 14. Privacy and Data Security
We are committed to protecting your privacy. Our Privacy Statement sets forth how we may collect, use, store and process personal information and how you may request deletion of personal information. You acknowledge that you have read and understood the Privacy Statement. Our Web Service is designed for business data only. It is not intended for uploading, storing or processing personal data within the meaning of the EU General Data Protection Regulation. If Your Content includes personal data, you must notify us in advance and sign a copy of our standard Data Processing Agreement, which describes the security measures we put in place to protect Your Content. You can find these here
on our website.> 15. Export
When you access or use the Web Service or Software in any way, you must comply with the export control and international trade laws and regulations of the United States, the Republic of Austria, and of any other country whose laws apply to you. In particular, you must not access or use the Web Service or Software from within a U.S. sanctioned location or if you appear on any U.S. government restricted parties list. You must obtain U.S. government and any other required authorization before you obtain, access, or use, or allow any third party to obtain, access, or use the Service for U.S.-restricted end-use. Restricted end uses include, but are not limited to, work on nuclear, chemical, or biological weapons or on missile systems capable of delivering them.> 16. Audit
If you have purchased a Software subscription, you agree that upon reasonable notice we or a third party duly authorized by us may inspect and audit your installation and use of that Software (software audit). Any such inspection or audit shall be conducted during regular business hours at your facilities or electronically. If such inspections or audits disclose that you have installed, used, or permitted use of the Software in a manner that is not allowed under this agreement, then (i) you are liable to pay for any unpaid license fees as well as the reasonable costs of the audit; and (ii) we may terminate this agreement with immediate effect. Nothing in this paragraph shall limit our legal or equitable remedies for violation of this agreement or applicable law. Any information we or our authorized representatives may obtain during the course of such inspection or audit will be used and disclosed solely for purposes of such inspection and audit and/or for the enforcement of our rights.> 17. Changes
We reserve the right to modify these Terms of Use. If we do so, we will give you at least 30 days prior notice by email, physical mail or through a display when you use the Web Service. Until the effective date of the change, you may object to the modification by email or physical mail. In this case, the modification will not take effect and your subscription will continue to be governed by the Terms of Use then in effect; however, your subscription will expire at the end of your then-current Subscription Period and will not be able to renew. If, on the other hand, you do not object to the modification as set out above, this modification will become effective in accordance with our notice.> 18. General
These Terms of Use are governed by Austrian laws, without reference to its rules on the international conflict of laws. The parties submit to the exclusive jurisdiction of the commercial court Vienna (Handelsgericht Wien). Notwithstanding the foregoing, we may also bring actions for infringement of our intellectual property rights in any country where such infringement is alleged to occur.
No delay or omission by any party to exercise any right under this agreement shall be construed as a waiver of such right. Any amendment, modification, or waiver of any provision under this agreement shall be valid only if made in writing.
Any notice under these Terms of Use must be given in writing. We may also give notice to you by email or through your user account.
Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, epidemic, pandemic, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
You may not assign or transfer these Terms of Use without our prior written consent. As an exception to the foregoing, you may assign these Terms of Use in their entirety (including all subscriptions) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms of Use. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) as part of a reorganization, merger, sale of assets or other transaction , without your consent or notice.
These Terms of Use and the documents referenced herein are the entire agreement between you and us and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the subject-matter hereof.
If and to the extent any provision of this agreement is held illegal, invalid or unenforceable in whole or in part, all other provisions shall continue in force, and any such illegal, invalid, or unenforceable provisions shall be deemed modified to the extent necessary to give the maximum effect to the original intent of the parties.> 19. Definitions
The following terms shall have the following meanings unless the context otherwise requires:
“Account Information” means any information or data related to you or your Authorized Users, which you provide so that we can identify you and/or your Authorized Users, including log-in names and passwords. “Authorized Users” means your employees and contingent workers.
“Data Elements” means those data elements processed or displayed in the Service, which we describe in our quote (or, if you purchased from a partner, which we describe in our service confirmation) as a basis for the calculation of the fees payable for the services.
“Internal Purposes” means your internal business purposes or, if you are a non-profit or government organization, your internal operational purposes.
“Software“ means the object code of the software known as Txture™ as On-Premise Deployment, as we currently make it available on the market, and any updates and/or upgrades which we may make available in the future.
“Subscription Period” means the fixed time period for which you purchased a paid subscription for our Software as a Service (Web Service), or the fixed time period for which you purchased a paid license for the Software, as indicated in our quote or subscription confirmation to you or the reseller chosen by you.
“Terms of Use” means the terms and conditions for the use of the Service or the Software, as set forth in this document and any other documents referenced herein.
“Territory” means the geographic territory indicated in our quote (or, if you buy from a partner, which we describe in our subscription confirmation), to which all your usage and access rights will be restricted. If the quote or subscription confirmation do not include any Territory designation, then the Territory will be worldwide. For the avoidance of doubt, the Territory does not include any countries or territories to which US, EU or other applicable export control laws or regulations prohibit export, re-export or usage. “Trial Period” means the period we designate when we agree to a trial. If we do not designate a specific period, the Trial Period will be 14 calendar days.
“we” or “us” means Txture GmbH, an Austrian limited liability company.
“Web Service“ means the software-as-a-service offering known as Txture™, which is provided by us as a software-as-a-service offering, as it may from time to time be modified or updated.
“you” means the company or individual who purchased a subscription to the Software on-premise or the Software as a Service.
“Your Content” means any information or data, which you or your Authorized Users may upload to our Web Service, except for Account Information.