The Order Form together with the Infrastructure Terms and the documents referred to therein set out the agreement between the customer designated in the Order Form (“Customer”) and LiveEO relating to the Infrastructure Solution and related Services provided by LiveEO (“Agreement”).  The documents referred to therein set out the 

LiveEO and the Customer are hereinafter each referred to as “Party” and together as the “Parties”

1 Definitions

“Admin Account” means an administrator account provided by the LiveEO for the use of the Infrastructure Solution and the Services that is specific to the Customer and is protected by a password.

“Affiliate” means any affiliate pursuant to Section 15 of the German Stock Corporation Act 

“Agreement” shall have the meaning as given in the Header of these Infrastructure Terms.

“Business Day” shall mean any day – other than a day which is a Saturday, Sunday or legal or bank holiday in Germany – on which retail banks are open to the public for business in Germany.

“Business Hours” shall mean 9am to 5pm CET on a Business Day.

“Customer” shall have the meaning as given in the Header of these Infrastructure Terms.

“Confidential Information” shall mean all information disclosed by one Party to the other, irrespective in which form, which is either marked as confidential or can reasonably be considered confidential taking into account its nature and the circumstances of its disclosure. Confidential Information comprises in particular the existence and all contractual details of this Agreement and any details about the Infrastructure Solution and the Services as well as all information provided by the Parties with regards to the Infrastructure Solution and Services including all software code, inventions, algorithms, know-how, ideas, data and all business, or other technical and financial information.

“DPA” means the Agreement on the Processing of Personal Data pursuant to Article 28 General Data Protection Regulation (GDPR) that is attached to these Infrastructure Terms and forms part of these Infrastructure Terms.  

“Deliverables” means any deliverables to be provided by LiveEO as a result of the provision of the Services.   

“Header” shall mean the preamble of these Infrastructure Terms.

“Mobile Application” means the application for User’s devices provided by LiveEO to access the Software Services where applicable.  

“Order Form” means a binding order form executed by the Customer and LiveEO and incorporating the Agreement. 

“Services” means the Services provided by LiveEO to setup and develop the AI-based asset analysis and monitoring via remote sensing data and issue management system according to the Customer’s requirements.  

“Infrastructure Solution” means the software and technology provided as cloud services for AI-based asset analysis and monitoring via remote sensing data and issue management system for the management of inspections and the assignment of projects related to the results of the analysis and all parts related to this software including updates and upgrades and adjustments to the Infrastructure Solution as a result of the Services provided to the Customer and the underlying algorithms.

“Start Date” shall mean the commencement date of the Agreement as provided in the Order Form.

“Term” means the term of this Agreement.

“User” means the end user with an individual account to access the Infrastructure Solution via Web application or Application or to access the Services or the Infrastructure Solution any other way.

“Web Application” means the user interface available via the internet for the access to the Infrastructure Solution. 

“Work Results” means all discoveries, inventions, designs, developments, improvements, works of authorship, information or data fixed in any tangible medium of expression, know-how, ideas, mask works, trademarks, service marks, trade names, trade dress or other technology, intellectual property or results conceived, created, generated, made, derived, developed or reduced to practice during the performance of the Services. 

2 Conclusion of the Agreement and Order Forms

2.1 The Agreement (including its recitals and any appendixes, attachments, exhibits, annexes and schedules hereto, all of which are incorporated herein by reference) sets forth the entire agreement between the Parties and concerning the subject matter hereof, and supersedes all prior agreements, negotiations, representations, and discussions, written or oral, express or implied, between the Parties in relation thereto. Addenda and amendments to this Agreement must be made in writing. This shall also apply to waiving the requirement to use the written form. Without limiting the generality of the foregoing, general terms and conditions of the Customer do not apply and are hereby expressly excluded.

2.2 These Infrastructure Terms shall serve as a framework agreement for all Services provided by LiveEO to the Customer relating to the Infrastructure Solution and shall, unless otherwise agreed between the Parties in writing, apply to all orders made by the Customer or the Customer’s Affiliates relating to the Infrastructure Solution.

2.3 If there is a conflict between the terms of these Infrastructure Terms and the individual agreement (including individual provisions stated in an Order Form), the individual agreement prevails. If there is a conflict between the terms of the main body of this Agreement and its annexes or appendixes, the provisions in the main body of the Agreement shall prevail. If there is a conflict between the Oder Form and the annex or appendixes the Order form shall prevail. In the event of any conflict or inconsistency between the DPA and the Agreement the DPA shall prevail. 

3 Provision of the Infrastructure Solution

3.1 LiveEO will make the Infrastructure Solution available to the Customer by providing the access to the Infrastructure Solution via internet for the use via Web Application and Mobile Application.

3.2 LiveEO will ensure the availability of the Infrastructure Solution to the Customer on a best-efforts basis, i.e., efforts which are commercially reasonable and may be reasonably expected by the Customer in accordance with industry standards. Unless otherwise agreed in the Order Form, LiveEO does neither guarantee 24/7/365 availability nor a specific availability but will use commercially reasonable efforts to ensure continuing availability of the Infrastructure Solution. 

3.3 The LiveEO uses third parties to host the Infrastructure Solution or parts thereof and uses data and information in the form of remote sensing images from third parties to provide the analysis via Infrastructure Solution. The availability of the Infrastructure Solution and up to date material and information provided via the Infrastructure Solution may thus depend on such third parties. The Customer acknowledges such third-party dependency and will not hold LiveEO liable for damages due to unavailability of the Infrastructure Solution and the data caused by such third-party. The analysis, information and data provided through the Infrastructure Solution is based on AI algorithms and therefore only provides a calculation and approximation based on the data provided. The Customer acknowledges that the LiveEO may only provide such calculation by means of the AI based algorithms and will not hold LiveEO liable for wrong predictions or calculations or any damages caused by such results, information or analysis. 

3.4 LiveEO will notify the Customer at least 48 hours prior of any planned maintenance that might impact the availability of the Infrastructure Solution.

3.5 LiveEO will use commercially reasonable efforts to provide appropriate support for the Infrastructure Solution and Services during Business Hours. 

3.6 The number of Users for the Infrastructure Solution available to the Customer depends on the Customer’s subscription as stated in the Order Form. The Customer will have the option to purchase additional usage rights or upgrade the Customer’s subscription. Without limiting the forgoing, to the extent the Customer sets up more Users than agreed upon or otherwise exceeds the number of Users agreed upon in the Order Form, the Customer shall pay additional fees for the number of Users exceeding the contractual limit pro rata in the amount agreed upon in the Order Form.

3.7 LiveEO will provide the Customer with a primary Admin Account for using the LiveEO Software. The Customer may create additional Admin Accounts for additional administrators within the Customer’s organization.

3.8 LiveEO reserves the right to suspend the Customer’s Admin Account(s) temporarily or permanently if the Customer is in breach of contract, i.e., violate any of the terms of this Agreement. 

3.9 The Customer shall notify LiveEO of any defects or irregularities of the Infrastructure Solution. LiveEO will confirm receipt of the notice and analyze it. The Customer shall provide all facts to enable LiveEO to analyze the issue. LiveEO may refuse to provide a solution for the underlying issue if LiveEO concludes that the issue does not relate to the Infrastructure Solution but to the Customer’s IT system, use of the Services not covered by the Agreement, or may be caused by an end-user device. 

3.10 The Customer is responsible for making all arrangements necessary to have access to the Infrastructure Solution and for procuring and maintaining all necessary equipment and network connections in order to access and use the Infrastructure Solution.

3.11 The Customer may use and access the Services to the extent described in the Order Form.

3.12 The Customer is responsible for safeguarding any password the Customer has set and used to access the Services and must prevent any unauthorized use of these details. The Customer agrees not to disclose the Customer’s or the User’s password to any other person. If the Customer believes an unauthorized person has access to the Services, the Customer must notify LiveEO as soon as possible. The Customer is responsible for all activities occurring under the Customer’s Admin Account(s).

3.13 The Customer is responsible for supporting Users. If the Customer cannot fully support their Users, the dedicated administrator of the Customer may request support Services from LiveEO. 

4 Setup and Development Services; Acceptance

4.1 LiveEO shall provide the Services set out in the Order Form in the agreed or generally accepted industry-standard quality and according to the current state of the art as well as professional quality standards. 

4.2 LiveEO shall only provide Deliverables if the provision of such Deliverables is by nature of the Services the result of the Services, or the provision of the Deliverables is expressly set out in the Order Form.   

4.3 To the extent expressly set out in the Order Form as delivery date, LiveEO shall provide the Services and the Deliverables at the delivery date. 

4.4 LiveEO shall inform the Customer immediately about all difficulties arising during the Provision of the Services or about all foreseeable delays. Upon request, LiveEO shall at any time provide the Customer with an insight into the respective work results and any other project-related information requested. 

4.5 If the acceptance of the Services or Deliverable is explicitly set out in the Order Form LiveEO shall provide such Services or Deliverables for acceptance by the Customer.

4.6 The Customer may at any time request changes to the Services and the Deliverables and issue instructions relating to the Services and Deliverables. Unless otherwise agreed LiveEO may accept such changes at its own discretion, unless such changes do not increase time and effort for the provision of the Services, or the Customer offers to compensate for the additional time and effort in the changes requested.

5 Provision of the Mobile Application

5.1 In addition to the Web Application LiveEO can provide to the Customer and Users the Mobile Application for the access of the Infrastructure Solution and the Services via mobile device. Unless otherwise agreed upon, such Mobile Applications will be available for Android from version 8 and IOS from version 11. LiveEO will provide the Customer and the Users with continuously updated versions of the Mobile Application. 

5.2 The use of the Mobile Application may be subject to the consent by the User to LiveEO’s end user license terms for such Mobile Application.    

5.3 To the extent agreed upon in the Order Form, LiveEO will provide the Customer with a modified version of the Web Application and the Mobile Application for Users with the Customer’s own branding.

6 Customer’s Rights and Obligations; License and Use rights; Restrictions

6.1 Unless otherwise agreed upon , the Customer shall provide all material and information and assist in any way reasonably required for the setup and development Services and to enable the analysis of remote sensing data and implementation of the entire management solution. Unless otherwise agreed, this may upon request by LiveEO include: 

• Geo-referenced network data of assets (as a Shape-File, GeoJSON delivered with details about projection).
• If available further information which specify the exact position of the asset or parts of the asset.
• Completed customer onboarding questionnaire provided at least two weeks before the onboarding meeting.
• Onboarding and evaluation calls throughout the project. 
• (If available) On-site training data.

6.2 Subject to this Agreement and payment of all applicable fees, LiveEO grants, during the Term, the Customer a personal, non-exclusive, limited, revocable license to use the Infrastructure Solution for the purposes set out in this Agreements.

6.3 The Customer must not sell, transfer or sub-license the Customer’s access to the Services. The Customer may temporarily grant Users access to LiveEO’s Services and the Infrastructure Solution provided under this Agreement for the purpose to provide services to the Customers and to enable the Customer to fully use the Services and the Infrastructure Solution as set out in this Agreement. The Customer must not sell, transfer or sub-license the Customer’s access to the Infrastructure Solution.

6.4 The Customer will not and shall oblige the Users not to allow anyone else to:

• use the Infrastructure Solution for any purpose that is unlawful or prohibited by this Agreement;
• use the Infrastructure Solution for any purpose not expressly permitted under this Agreement;
• attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the Infrastructure Solution, as applicable, in any form of media or by any means;
• use any robot, spider, site search or retrieval application, or any other device to copy, retrieve, archive or index any portion of the Infrastructure Solution that requires authentication;
• attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services, the Infrastructure Solution or any data including geolocation files;
• access all or any part of the Infrastructure Solution in order to build a product or service which competes with the Infrastructure Solution or LiveEO’s Services or use or attempt to use the Infrastructure Solution to directly compete with us (including by reselling access to the Services);
• use the Infrastructure Solution or the Services in any manner that could interfere with any other party’s use of LiveEO Services;
• remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Infrastructure Solution, features that prevent or restrict the use or copying of any content accessible through the Infrastructure Solution, or features that enforce limitations on the use of the Infrastructure Solution;
• attempt to gain unauthorized access to the Infrastructure Solution, or any part of the Services, other accounts, computer systems or networks connected to the Infrastructure Solution, or any part thereof, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Infrastructure Solution or any activities conducted on the Infrastructure Solution;
• obtain or attempt to obtain any materials, information, software code, algorithm, through any means not intentionally made available through the Infrastructure Solution or Services;
• either modify the Infrastructure Solution in any manner or form, or use modified versions of the Infrastructure Solution, including (without limitation) for the purpose of obtaining unauthorized access to the Infrastructure Solution; or
• deep-link to the Infrastructure Solution or use any of LiveEO logos, graphics, or trademarks as part of the link without LiveEO’s express written consent.

6.5 At all times while using the Services, the Customer:

• must comply with all applicable laws, rules and regulations in connection with the Customer’s use of the Services;
• is responsible for any actions and omissions relating to the use of the Services by the Customer, and Customer is responsible for any actions and omissions relating to the use of the Services by their employees and Users;
• is responsible for procuring and maintaining the Customer’s network connections in order to access the Infrastructure Solution and the Service and ensuring that the Customer’s network and systems comply with the relevant specifications provided by LiveEO from time to time.

7 Fees and Payment Terms

7.1 The Customer is responsible for paying all fees applicable to the Customer as agreed in the Order Form. Unless otherwise specified in the Order Form the fees for the Services are due and payable at the beginning of the Services and within 14 days upon receipt of an invoice. Unless otherwise specified in the Order Form, the fee for the Infrastructure Solution shall be due and payable for from the provision of the access to the Infrastructure Solution each month in advance within 14 days upon receipt of an invoice. 

7.2 All fees are exclusive of applicable sales tax, VAT, and any other applicable taxes, unless otherwise stated. The Customer may be charged, and is solely responsible for, all applicable taxes. 

8 Intellectual Property Rights

8.1 The Infrastructure Solution and all Work Results resulting from the provision of the Services are and shall remain the sole and exclusive property of LiveEO. Any and all rights in and to the Infrastructure Solution and the Work Results (including derivative works, updates, upgrades, and improvements), in particular, all intellectual and other property rights, are solely owned by LiveEO.

8.2 The Infrastructure Solution or parts of the Infrastructure Solution shall not be copied, reproduced or distributed in any manner or medium, in whole or in part, without prior written consent from LiveEO. Any person copying, reproducing or distributing all or any portion of the Infrastructure Solution in any manner or medium, is willfully violating copyright laws and may be subject to civil and criminal penalties.  

8.3 Subject to this Agreement, LiveEO hereby grants the Customer the nonexclusive, non-transferable, non-sublicensable, limited right and license to the extent such right to use is required for the use of the Infrastructure Solution and any work results. The license does not include the right to download, copy or modify the Infrastructure Solution or parts thereof. The grant of the license is subject to the Customer’s compliance with this Agreement. The term of the license under this Agreement shall commence on the date LiveEO provides the Customer access to the Infrastructure Solution and ends with the termination of this Agreement. The license granted to the Customer terminates immediately if the Customer attempts to circumvent any technical protection measures used in connection with the Infrastructure Solution, the Services or any Work Results provided. The Infrastructure Solution, all Services, software and Work Results provided are licensed to the Customer and the Customer hereby acknowledges that no title or ownership is being transferred or assigned to the Customer. All rights not specifically granted hereunder are reserved by LiveEO.

8.4 LiveEO owns or has the right to grant licenses to the remote-sensing-generated data, images, analysis, and other data provided in connection with the Services and the Infrastructure Solution. LiveEO grants the Customer the right to download and export such data as explicitly provided for download and export and to use transferred information in accordance with this Agreement.

8.5 Without limiting the foregoing, any data entered into the Services by the Customer may be stored and used by LiveEO and the third-party providers engaged by LiveEO to provide Infrastructure Solutions and the Services to the Customer.

8.6 The names, trademarks, logos and other distinctive signs of LiveEO for the Infrastructure Solution are owned and/or licensed by LiveEO and legally protected by registered and unregistered rights. LiveEO shall have the sole and exclusive right to protect and defend such trademarks and other rights, at its own cost and expense.

9 Representations and Warranties

9.1 Each party represents and warrants to the other party that: (i) it has full power and authority to enter into the Agreement and to perform its respective obligations under the Agreement; and (ii) it has complied and will continue to comply with all applicable laws, rules and regulations in connection with the execution, delivery and performance of the Agreement.

9.2 LiveEO warrants that the Infrastructure Solution, when used as intended and in accordance with LiveEO's instructions, will substantially conform to the specifications published or made available to the Customer by LiveEO for the Term from the date the Customer is first permitted to access and use the Services. In the event of a breach of this warranty, LiveEO may, at its sole discretion, either remedy the defect or (partially) refund the fees paid by the Customer for the Infrastructure Solution. The above provision does not apply to the extent that the Infrastructure Solution: (i) does not conform with this warranty due to Customer's use of third-party software; and/or (ii) is used for an unintended purpose, is not used in accordance with published documentation or specifications or is otherwise used in violation of this Agreement. Other statutory warranty rights of Customer (e.g., rescission of the Agreement or reduction of the fees due and/or claims for damages, if any) shall remain unaffected. Strict liability for defects that already exist at the time of delivery of the Infrastructure Solution is expressly excluded, subject to the provisions on liability under Section 11 below. The above warranty is LiveEO’s sole warranty. There are no other explicit or implied representations or warranties, and no guarantees. LiveEO does in particular not give any warranties relating to the data, information, analysis or results of the analysis though the Infrastructure Solution and the Services.

10 Limitation of Liability

LiveEO shall only be liable for damages caused by intent or gross negligence. In the event of a slightly negligent breach of a major obligation or an accessory obligation, whose breach puts the achievement of the contractual purpose at risk or whose fulfilment is essential to the due and proper implementation of the Agreement and on whose fulfilment the Customer can reasonably rely (“Essential Obligation”), the liability of LiveEO is limited to the damage foreseeable at the time of conclusion of the Agreement and characteristic for the Agreement. LiveEO is not liable for slightly negligent breaches of accessory obligations that are not Essential Obligations. The limitation of liability under this Section applies accordingly to LiveEO’s liability (i) for reliance damages and (ii) in the event of initial impossibility if LiveEO was unaware of the impediment to performance due to slight negligence. The above exclusions and limitations of liability shall not apply in the event of malicious concealment of defects or a guarantee as to quality, to the liability for claims under the Product Liability Act, and to claims based on personal injuries (life, limb, or health). This shall not entail a reversal of the burden of proof to the Customer’s disadvantage. To the extent the liability of LiveEO is excluded or limited, this shall also apply to the personal liability of LiveEO’s employees, members of staff, representatives, and vicarious agents. To the extent LiveEO is liable to the Customer for damages caused by slight negligence which are related to or in connection with this Agreement, the liability of LiveEO will be limited to the total amount payable by Customer to LiveEO hereunder for the twelve (12) month period prior to the date the cause of action first arose. LiveEO’s liability under compulsory statutory law remains unaffected by this maximum liability and is unlimited.

11 Indemnification

11.1 The Customer shall indemnify, defend and hold LiveEO and its suppliers, partners, agents and contractors harmless from and against any and all losses, damages, claims, liabilities or expenses (including reasonable lawyer’s fees and disbursements) arising out of a claim brought by a third party relating to: (i) Customer’s use of the Infrastructure Solution (except to the extent caused by gross negligence or willful misconduct) including, without limitation, any employment decisions, financial business, and commercial judgements, and acts or omissions made based on use of the Infrastructure Solution; (ii) any breach of this Agreement or any representations, warranties or covenants herein; or (iii) any violation of any applicable law, rule or regulation by Customer or its personnel or Users in connection with the Infrastructure Solution.

11.2 LiveEO shall indemnify, defend (or settle), and hold harmless the Customer from and against all claims, suits, liabilities losses, costs, damages, and expenses, including without limitation reasonable attorneys’ fees or expenses (“Losses”), arising out of or related to any third party claim that alleges that the Infrastructure Solution or Services infringe any copyright, trade secret, patent or trademark, or any other intellectual property right (“Intellectual Property”) of any third party brought against the Customer. The Customer shall provide LiveEO with: (i) prompt written notice of such claim; (ii) control over the defense and settlement of such claim; and (iii) proper and full information and assistance to settle and/or defend any such claim. The foregoing provisions states the entire liability of LiveEO, and the sole remedy of the Customer, with respect to any actual or alleged claim of infringement or misappropriation of the intellectual property of any third-party.

12 Confidentiality

12.1 LiveEO will process any personal data provided by the Customer which is used within the Infrastructure Solution and Services in accordance with the Data Processing Agreement (DPA) which is attached to these Infrastructure Terms and forms part of these Infrastructure Terms. The Data Processing Agreement sets forth the rights and obligations of the Parties with respect to the processing of personal data. To the extent that LiveEO processes any personal data that is subject to Data Protection Regulation on the Customer’s behalf in the provision of the Services hereunder, the terms of the Data Processing Agreement shall apply. 

12.2 The Customer is solely responsible towards users to fulfil the obligations as a controller set out under the General Data Protection Regulation (GDPR) and must ensure that there is a legal basis for the processing of any personal data processed on behalf of the Customer under the Data Processing Agreement.  

12.3 LiveEO will not be liable for the deletion, correction, alteration, destruction, damage, loss, disclosure, or failure to store any of the Customer’s data using the Infrastructure Solution.

12.4 Subject to the Data Protection Regulations and the Data Processing Agreement LiveEO may disclose any data provided by the Customer to law enforcement authorities as required by law or as LiveEO reasonably feel is necessary to prevent or enforce misconduct.

13 Confidentiality

13.1 The Parties shall treat all Confidential Information received from the other Party as strictly confidential and must not disclose it to third parties. Confidential Information must not be used by the receiving Party for any purpose other than in connection with the purposes of this Agreement. For the avoidance of doubt, LiveEO may disclose Confidential Information to Supplier Affiliates and its subcontractors to the extent reasonably necessary to provide the Infrastructure Solution and the Services.

13.2 The foregoing obligations under Section 14.1 do not apply to any Confidential Information which: (i) is in the public domain at the time of disclosure or later becomes part of the public domain through no fault of the receiving Party; (ii) was known to the receiving Party prior to disclosure by the disclosing Party or is disclosed to the receiving Party by a third party who is not subject to confidentiality obligation (iii) is at any time independently developed by the receiving Party as proven by its contemporaneous written records; (iv) is expressly authorized in writing by the disclosing Party; or (v) is ordered by court order or a governmental or administrative order to be disclosed. In case the Parties receive a court order or a governmental or administrative order the Parties shall immediately inform the disclosing Party of such order and will assist the disclosing Party with the objection of such an order.   

13.3 The Parties shall undertake to return or dispose of the Confidential Information and documentation to the respective disclosing Party upon request and without undue delay, when asked to do so, as soon as it no longer requires this information for the execution of the contract. 

14 Term and Termination

14.1 The Term of the Agreement starts on the Start Date stated on the Order Form or, if no Start Date is provided, upon signature to the Order Form by the legal representatives of both Parties. The Term shall remain in force for the initial Term of 12 months unless otherwise set out in the Order Form. The Term including the subscription to the Infrastructure Solution shall automatically renew for one year indefinitely, unless either Party terminates the Agreement in writing upon a three (3) months’ notice period before the end of the Term. The right to immediately terminate the Agreement for cause remains unaffected.

14.2 Unless otherwise set out in the Order Form or the Customer may terminate all setup and development Services at any time. 

14.3 Upon termination of the Agreement for any reason, the Customer shall pay all fees due at the time of termination, and all licenses granted by LiveEO under this Agreement shall immediately terminate and the Customer’s right to access and use the Services will end. The Customer shall pay all fees for Services provided by LiveEO until the date of termination and shall compensate Supplier for all costs arising in connection with the provision of the Services.

14.4 Any provisions which by their nature are intended to be valid indefinitely shall survive any termination of this Agreement, and shall all continue in full force, including the following provisions: Section 1 (Definitions), Section 8 (Fees and Payment Terms), Section 9 (Intellectual Property Rights), Section 11 (Limitation of Liability), Section 12 (Indemnification), Section 13 (Privacy and Data Security), Section 14 (Confidentiality) and Section 16 (Miscellaneous) of this Agreement.

14.5 Any notice of termination must be in writing. 

15 Miscellaneous

15.1 Notices to the Parties under the Agreement must be sent to the address set out in the Order Form. The Parties may give notice at the e-mail address stated in the Order Form. The Parties agree that all agreements, notices, disclosures, and other communications that the Parties provide to each other electronically to the e-mail address stated in the Order Form satisfy any legal requirement that such communications be in writing. Notice will be deemed served and received immediately (i) 24 hours after an e-mail is sent; or (ii) three days after posting a letter.

15.2 Neither Party may assign its rights or delegate its duties under the Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, except that a Party shall have the right to assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets on notice to the other Party, provided that such assignee is not a competitor of the non-assigning Party and has the ability to assume the rights and obligations of the assigning Party hereunder. Any attempted assignment or delegation in violation of this section shall be void. The Agreement shall be binding on, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns.

15.3 The Customer grants LiveEO the right to use the Customer’s company name, logo and other identifying information as a reference for marketing or promotional purposes on LiveEO’s website and in other public or private communications, subject to the Customer’s standard trademark usage guidelines as provided to LiveEO from time to time.

15.4 The Customer grants LiveEO the right to use the Customer’s company name and logo as a reference for marketing or promotional purposes on LiveEO’s website and in other public or private communications, subject to the Customer’s standard trademark usage guidelines as provided to LiveEO from time to time.

15.5 Subject to prior approval of all material by the Customer and all employees of the Customer participating in marketing or reference activities, the Customer grants LiveEO the right to use the Customer’s name, logo, video/images and final content associated with the name, logo and statements, video/images of Customer’s employees for publication on Supplier’s website live-eo.com and social media sites (e.g. Twitter, Facebook, Instagram, LinkedIn), the distribution within LiveEOs affiliates and distribution or play at trade shows, or publication in other marketing collateral or mediums. The Customer agrees that LiveEO may obtain such consent from Customer’s employees participating in marketing activities. The Customer and its employees may each revoke their consent to the release by notice to LiveEO at any time. In case of a revocation, LiveEO will remove the respective content as soon as is practicable. Customer and the Customer’s employees will not receive compensation for the participation in the marketing or reference activities.

15.6 The failure of the Parties to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor the right to enforce such provision. Furthermore, any waiver of any provision of this Agreement by any Party will be effective only if in writing and signed by a Party.

15.7 The Customer shall have a right to offset against claims only if their counterclaim has been established by a final and binding decision or is undisputed. The same shall apply to the right of retention, the valid exercise of which shall further require that the counterclaim of the Customer must arise under the same contractual relationship.

15.8 Amendments to the Agreement require the unanimous consent of both LiveEO and the Customer in written form.

15.9 This Agreement is governed by and construed in accordance with German law without giving effect to conflict of laws principles.

15.10 The sole venue place for all disputes arising directly or indirectly from the Agreement is LiveEO’s registered office if the Customer is a business, a legal entity under public law or a special fund under public law. However, LiveEO is also entitled to take legal action at the general place of jurisdiction of the Customer.

15.11 If one or more provisions of this Agreement are invalid, the Parties shall agree on a replacement provision that comes as close as possible to the invalid provision. The invalidity of one or more provisions of this Agreement shall not affect the validity of the remaining provisions.

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Agreement on the Processing of Personal Data (DPA)

For the purpose of this DPA the Customer is hereinafter referred to as “Controller” and LiveEO as “Processor”.

 Processor and Controller are hereinafter each referred to as “Party” and jointly as “Parties”. 

The parties agree that this Data Processing Agreement (DPA) sets forth their obligations with respect to the processing and security of personal data in connection with the services provided by the Processor under the Agreement between Parties relating to the provision of the Infrastructure Solution by LiveEO.                    

1 Subject matter of the Data Processing Agreement

1.1 The Processor provides services based on the Agreement. The Processor processes personal data within the meaning of Article 4 No. 4 GDPR for the Controller (hereinafter referred to as "controller data") exclusively on behalf of and in accordance with the instructions of the Controller. The scope and extent of data processing shall be determined by the Agreement. The Controller shall be solely responsible for assessing the lawfulness of the data processing.

1.2 This DPA specifies the rights and obligations of the Parties in connection with the Processor’s handling of the controller data in fulfillment of the Agreement.

2 Term and termination of the DPA

The term and termination of this DPA shall be determined by the terms and conditions governing the term and termination of the Agreement. Termination of the Agreement automatically leads to the termination of this DPA. An isolated termination of this DPA is excluded.

3 Nature and purpose of the processing, type of personal data, categories of data subjects

3.1 The Processor processes the Controller data exclusively on behalf of and in accordance with documented instructions from the Controller. 

3.2 Nature and purpose of the processing is to provide to the Controller the AI- infrastructure analysis and monitoring via satellite data and access to the workforce management system including the web application provided via cloud and the support services. The type of personal data which is transmitted when using the services to the extent that such data allows identification includes IP-address used for access to the services via web app or mobile app, account data, geolocation, usage data and user feedback data. Data subjects may be employees or other contractors using the application.

3.3 The processing of the controller data by default takes place in the territory of the European Union. At the Controller's request and expense, if the Controller is located in North America or South America the data can be processed in the United States of America or if the Controller is located in the Asian-Pacific region the data can be processed in Australia. Any relocation to a third country may only take place if the special requirements of Article 44 et seq. of the GDPR are met.

4 Rights and obligations as well as authority of the Controller to issue instructions

4.1 The processing of controller data by the Processor within the scope of this DPA shall be carried out exclusively in accordance with the instructions of the Controller pursuant to Article 28 para. 3 sentence 2 lit. a of the GDPR, unless the Processor is obliged to carry out further processing in accordance with the law of the European Union or the law of the Member State to which it is subject. In such a case, the Processor shall notify the Controller of these legal requirements, unless the relevant law prohibits such notification because of an important public interest.

4.2 The Controller reserves the right to give comprehensive instructions on the type and purpose of data processing within the framework of the order description agreed in this DPA, which he can specify in detail by means of individual instructions.

4.3 Individual instructions after conclusion of this DPA require text form and must be documented by both the Controller and the Processor.

4.4 If the Controller issues individual instructions regarding the processing of controller data that exceed the scope of services agreed in the Agreement, the costs justified thereby shall be borne by the Controller.

4.5 The Processor shall not be under any obligation to legally examine the instructions of the Controller. If, however, the Processor is of the opinion that an instruction of the Controller violates data protection provisions, he shall inform the Controller accordingly. The Processor shall be entitled to suspend the execution of the relevant instruction until the instruction has been confirmed or amended. If the Controller does not dispel the doubts of the Processor upon being informed of an instruction which, in the opinion of the Processor, is unlawful, the Processor may refuse to implement the instruction in question insofar as it concerns his sphere of responsibility.

4.6 The Controller shall inform the Processor immediately and completely if he discovers errors or irregularities in connection with the processing of controller data by the Processor or his instructions.

5 The Processor's rights and obligations

5.1 The Processor shall ensure that the processing within the framework of the performance of the Agreement in his sphere of responsibility, which includes the subcontractors pursuant to Section 9 of this DPA, is carried out in accordance with the provisions of this DPA.

5.2 The Processor shall be obliged to provide the Controller, upon request, with the necessary information, including certifications as well as inspection- and assessment results, which serve as proof of compliance with the obligations laid down in this DPA.

5.3 The Processor shall obligate in writing the persons authorized to process controller data pursuant to Article 28 para. 3 lit. b GDPR to maintain confidentiality unless they are already subject to an appropriate legal obligation of confidentiality.

5.4 The Processor is obliged to designate an expert and reliable data protection officer who can perform his duties in accordance with Article 37, 38 and 39 GDPR as well as § 38 German Federal Data Protection Act (BDSG) if and as long as the legal requirements for an order obligation are met. The Processor shall store the current contact details of the data protection officer on his website in an easily accessible form (Article 37 para. 7 GDPR).

5.5 The Processor and, if applicable, his representative shall keep a record of processing activities carried out on behalf of the Controller which contains all information pursuant to Article 30 para. 2 GDPR. This obligation does not apply if the requirements of Article 30 para. 5 GDPR are fulfilled.

5.6 The Processor is obliged to support the Controller, within the reasonable and necessary limits and against reimbursement of the expenses and costs incurred as a result, in fulfilling his obligations under Article 12 to 22 and Article32 to 36 GDPR. Support shall be provided taking into account the type of processing and the information available to the Processor as well as, where possible, appropriate technical and organisational measures, in particular in response to requests to exercise the rights of the data subject specified in Articles 12 to 22 GDPR.

6 Technical and organisational measures

6.1 The Processor shall implement all necessary technical and organisational measures to adequately protect the data of the Controller pursuant to Article 32 GDPR. The Processor provides the Controller with a description of the technical and organisational measures implemented. The technical and organizational measures currently implemented are attached to this Document.

6.2 As the technical and organisational measures are subject to technical progress and technological development, the Processor shall be permitted to implement alternative and adequate measures, provided that they do not fall below the security level of the measures initially provided to the Controller. The Processor shall document such changes. Material changes to the measures shall require the prior consent of the Controller.

7 The Processor's reporting duties and conduct in the case of infringements

7.1 The Processor shall inform the Controller without delay if he determines that he or an employee has violated data protection regulations or provisions of this DPA when processing controller data, insofar as there is a risk of a violation of the protection of personal data of the Controller within the meaning of Article 4 No. 12 GDPR.

7.2 Insofar as the Controller is subject to statutory notification obligations due to an incident pursuant to paragraph (1), the Processor shall support the Controller in fulfilling his obligations at the latter's request within the scope of what is reasonable and necessary against reimbursement of the expenses and costs incurred as a result thereof.

7.3 The Processor shall immediately take the necessary measures to secure the data and to reduce possible adverse consequences for the data subjects, inform the Controller thereof and request further instructions.

7.4 Notifications and information pursuant to Article 33 or 34 GDPR for the Controller may only be made by the Processor following prior instructions from the Controller.

8 The Controller's control and inspection rights 

8.1 The Controller shall, at his own expense, convince himself of the technical and organisational measures taken by the Processor prior and after the commencement of data processing and shall document the results. The control shall be carried out by obtaining a self-assessment from the Processor, which the Processor may also fulfil by submitting a suitable certificate from an expert.

8.2 The Processor undertakes to provide the Controller, upon written request, with all necessary information regarding its obligations under this DPA and, in particular, to prove the implementation of the technical and organisational measures. Proof of such measures, that do not only concern the specific assignment, can be provided by compliance with approved codes of conduct in accordance with Article 40 or certifications in accordance with Article 42 GDPR; current certificates, reports or report extracts from independent instances (e.g. auditors, revision, data protection officer, IT security department, data protection auditors, quality auditors); suitable certification by an IT security or data protection audit.

9 Subprocessor relationships

9.1 The Processor is entitled to assign further subprocessors under the condition of a contractual agreement in accordance with Article 28 para. 1 to 4 GDPR. Subprocessors within the meaning of this provision are those service providers who have been directly engaged to render the principal contractual performance. The principal contractual performance does not include ancillary contractual services which the Processor may use such as telecommunication services, mail or haulage services or for the disposal of data carriers or for other measures to ensure the confidentiality, availability, integrity and resilience of hardware and software systems used for data processing. The Processor is however obligated to put appropriate and law-compliant contractual agreements in place and to take appropriate control measures, ensuring data protection and data security for the controller data also with regard to contracted-out ancillary services.

9.2 The Controller expressly consents to the assignment of the subprocessors named in the list of subprocessors provided by the Processor prior to the conclusion of the Order Form.

9.3 The Processor shall immediately inform the Controller of any intended change with regard to the involvement or replacement of other subprocessors. The Controller may object to such changes for important reasons to be proven to the Processor. The objection must be made in writing within a period of one week from the date of receipt of a corresponding notification from the Processor.

9.4 When a subprocessor is engaged, the Processor shall impose on that subprocessor, by way of a contractual agreement or other legal instrument in accordance with European Union law or the law of the Member State concerned, the same data protection obligations as those laid down in this DPA. The contractual agreement must be drafted in such a way that, should the need arise, the Controller can – if necessary – carry out appropriate audits and inspection measures at the subprocessor's premises, also on-site or to have them carried out by third parties acting on his behalf.

9.5 Where subprocessors in a third country are to be assigned, the Processor shall ensure that the subprocessor offers guarantees for an adequate level of data protection (e.g. by concluding an agreement based on EU standard data protection clauses).

10 Rights of data subjects 

10.1 The rights of the data subjects affected by the data processing are to be asserted against the Controller.‍

10.2 In so far as a data subject concerned should directly approach the Processor in order to exercise their rights pursuant to Article 12 to 22 GDPR relating to their personal data, the Processor shall refer the data subject to the Controller.

11 Liability

11.1 The Controller and the Processor shall be jointly and severally liable for the compensation of damages incurred by a data subject due to an inadmissible or incorrect processing of personal data within the scope of the contractual relationship. 

11.2 The Processor shall only be liable for damage caused as a result of the processing if it has failed to comply with its specific obligations under the GDPR under this DPA or has acted in disregard of or contrary to a lawfully given instruction of the Controller.

12 Returning and deleting transferred Controller data

12.1 The Processor shall return or delete all controller data and destroy existing copies at the discretion of the Controller after termination of the DPA (in particular in the event of termination or other termination of the Agreement), unless an obligation to store the data exists under Union law or the law of the Member States.

12.2 The Processor shall document the deletion or destruction of data relating to the Controller and furnish proof of such deletion or destruction to the Controller upon request.

12.3 Documentations which serve as proof of the proper data processing in accordance with the instructions or legal retention periods shall be retained by the Processor beyond the end of the contract in accordance with the respective retention periods.

13 Miscellaneous

13.1 The Controller and the Processor, and where appropriate, their representatives, shall cooperate in the fulfillment of their duties and requirements, if requests are made by the supervisory authority.

13.2 In so far as there are no special provisions in this DPA, the provisions contained in the Agreement shall apply. In the case of discrepancies between this DPA and the provisions contained in other agreements, in particular the Agreement, the provisions of this DPA shall take precedence.

13.3 Agreements on the technical and organisational measures and the control and assessment documents (also relating to subprocessors) shall be kept by both Parties for the period of their validity and then for another full three calendar years. 

13.4 The right to plead the right of retention within the meaning of Section 273 BGB (German Civil Code) shall hereby be excluded with regard to the data processed for the Controller and the pertinent data storage media.

13.5 Unless the Parties to this DPA agreed to a choice of law in the Order Form, this DPA is governed by and construed in accordance with German law without giving effect to conflict of laws principles.

13.6 The sole venue place for all disputes arising directly or indirectly from this DPA is the Processors registered office if the Controller is a business, a legal entity under public law or a special fund under public law. However, the Processor is also entitled to take legal action at the general place of jurisdiction of the Controller.

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