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  • Terms of Use

Terms of Use

Acceptance

Welcome to the TrafficAssist App. Please read these Terms of Use carefully.

Your use of Our TrafficAssist App is governed by these Terms of Use and You are entering into a binding agreement with Kapsch and agree to be bound by these Terms of Use. As prerequisite for the use of Our TrafficAssist App You must accept the Terms of Use. Acceptance is considered when

  1. You click on “accept” or “agree” or similar where this option is made available to You, or when
  2. You download and use the TrafficAssist App.
     

By accepting these Terms of Use You represent and warrant that

  1. you are of legal age to form a binding contract with Us;
  2. in case of acting on behalf of an entity you have authority to bind that entity to the Terms of Use, if You are not authorized You yourself are the contracting party under this Terms of Use;
  3. You and/or the entity You are representing is not barred from using or receiving the TrafficAssist App under the laws of the United States, the European Union, the European Union member states or any other applicable legislation including the country in which You are resident or from which You use the TrafficAssist App;
  4. You have complied and You will comply with all applicable government procurement laws and regulations if applicable;
  5. You will not use the TrafficAssist App in any illegal manner for any illegal activities or for any purposes that are forbidden or sanctioned under the laws of the United States, the European Union, the European Union member states or any other applicable legislation including the country in which You are resident or from which You use the TrafficAssist App;
  6. You will strictly follow any instructions provided to You directly by Us, via Our website trafficassist.kapsch.net and/or via the TrafficAssist App and/or otherwise;
  7. You will use the TrafficAssist App only as explicitly permitted by Us by strictly observing these Terms of Use.
  8. If a register process is required to register with the TrafficAssist App. You will provide truthful and complete information when registering or contracting. You will keep that information updated and You will not forward, pass on, disclose or similar any Unique Identifier to any third party other than you or the entity you are representing including any family members or in case you are representing an entity any affiliated company, branch or the like of this entity.
  9. You will not breach any security measures established by Us and you will notify Us promptly about any breach or potential breach about such security measure.
  10. You will not copy, reproduce, change, amend or in any other way alter the TrafficAssist App.

We reserve the right to amend, change or alter the Terms of Use at any time in Our absolute discretion by providing notice that these Terms of Use have been modified. Such notice may be provided by posting a notice or the revised Terms of Use on the TrafficAssist App and revising the date at the top of these Terms of Use or by such other form of notice as Kapsch may determine. Your continued use of the TrafficAssist App is deemed Your acceptance of changed Terms of Use. If a change is unacceptable to You. You may as Your sole remedy cease to use the TrafficAssist App.

Definitions of capitalized words

“Agreement” – means the agreement between You and Us based on the Terms of Use You have accepted.

“TrafficAssist App” – means Kapsch mobile application, which is owned and operated by Kapsch, made available to You.

“End User” – means any user of the TrafficAssist App.

“Intellectual Property Rights” – means patent rights, rights in design, trademarks, service marks, applications of all the foregoing, copyright, database rights, topography rights, utility models, trade or business names, domain names, rights of an author, trade secrets, concepts, ideas, methods, methodologies, procedures, processes, know-how, techniques, models, templates, utilities, routines, schemes and software or the like and all of it whether registered or unregistered under any applicable legislation.

“Kapsch Confidential Information” – means  any and all information disclosed to You by Us or on Our behalf via whatever medium, whether furnished before or after accepting these Terms of Use, whether in tangible or intangible form, in particular but not limited to analyses, data, studies, business opportunities and plans, ideas, know-how, Intellectual Property Rights, products and product samples, designs, research and developments, commercial and technical information, pricing offers and all other information that a reasonable person should understand is confidential as well as information of commercial value for Us, especially as this information is not in the public domain, and We take reasonable precautions to prevent such Confidential Information from being disclosed to and released into the public domain (“Trade Secrets”). Confidential Information does not include (i) information We make available to the public, (ii) You can demonstrate is in Your rightful possession without confidentiality obligations, (iii) information You can demonstrate is independently developed by You without use of any Confidential Information.

“Kapsch Marks” – means any Kapsch trademarks, logos, service marks, trade names or similar whether registered or unregistered.

“Kapsch Materials” – TrafficAssist App related documentation, information, materials and the like provided to You (i) directly by Us, (ii) via Our website trafficassist.kapsch.net  and/or (iii) via the TrafficAssist App and/or (iv) otherwise.

“Terms of Use” – means these terms and conditions governing the relation between You and Us (the Agreement) for the use of the TrafficAssist App, Kapsch Marks, Kapsch Materials as amended, changed or altered from time to time in Our absolute discretion.

“Unique Identifier” – means any unique identifier such as a weblink, a password or any similar or other authentication method that enables You to use the TrafficAssist App.

“We” or “Kapsch“ – refers to Kapsch TrafficCom AG, Am Europlatz 2, 1120 Vienna, Austria, P +43 50811 0, F +43 50811 2109, registered at Commercial Court Vienna FN 223805a, registered office Vienna, DVR 3000832, VAT: ATU54300000.

“You” – means you if you are a person using our TrafficAssist App or an entity you represent which is using our TrafficAssist App.

Use of TrafficAssist App / Restrictions

Unless otherwise permitted by Us or in these Terms of Use the use of the TrafficAssist App, the Kapsch Marks or Kapsch materials is explicitly prohibited for

  1. the use in or with high risk systems, devices or products that are critical for health or security of people and property;
  2. the use of any military purposes;
  3. the use of any purposes that are forbidden or sanctioned under the laws of the United States, the European Union, the European Union member states or any other applicable legislation including the country in which You are resident or from which You use the TrafficAssist App
     

You represent and warrant that

  1. You will comply with applicable laws, these Terms of Use, the Kapsch Materials or any documentation, technical guidelines and other requirements as set out by Us or provided to You from time to time;
  2. You will not infringe, violate or misappropriate any intellectual property rights, rights of privacy, or rights of personality or any other right of any third party or of Us;
  3. You will not redistribute or sell any part of the TrafficAssist App or create a new product or service based on the TrafficAssist App;
  4. You will not copy the content (unless you are otherwise permitted to do so)
  5. You will not mass download or create bulk feeds of the content (or let anyone else do so);
  6. You will not use any part of the TrafficAssist App with other people's products or services except its explicitly allowed.

Ownership rights and license grant

For the avoidance of doubt We herewith explicitly inform You and You agree that any and all Intellectual Property Rights related to the TrafficAssist App, the Kapsch Marks, the Kapsch Materials and any Kapsch products, developments, materials, documentation or the like provided to You or made accessible to You by Us stay with Us and that by accepting these Terms of Use no ownership in Intellectual Property Rights of any kind is transferred to You.

Subject to Your compliance with Our Terms of Use and we grant to You a personal, non-exclusive, non-transferable, non-sublicensable, revocable, limited right to use the TrafficAssist App as End Users for the sole purpose of enabling You to use and enjoy the TrafficAssist App.

You always must attribute and reference Kapsch as the creator and source of origin of the TrafficAssist App. You must not in any way imply that You or any third party are creator or source of origin of the TrafficAssist App.

Trademarks

TrafficAssist App´s name, logos and any other TrafficAssist App product or service name or slogan included in TrafficAssist App are trademarks of Kapsch and my not be copied, imitated or used, in whole or in part, without the prior written permission of Kapsch or the applicable trademark holder. In addition, the look and feel of the TrafficAssist App including all page headers, custom graphics, button icons and scripts may not be copied, imitated or used, in whole or in part, without Our prior written permission.

Indemnification

You agree, at Your sole expense, to defend, indemnify and hold Us, our affiliates and subsidiaries, all employees, directors, legal representatives, suppliers, licensors or any third party having a business relationship to Us, harmless from and against any and actual or threatened suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgements, settlements, liabilities, losses, costs and expenses (including but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) caused by, arising out of, resulting from, attributable to or in any way incidental to: (i) Your conduct; (ii) Your violation of these Terms of Use or the rights of any third party; or (iii) any content You upload transmit, distribute, store, create or otherwise publish.

Third party rights

TrafficAssist App may contain or use components (software or content) from third parties. The information and terms and conditions for third parties take precedence. Insofar as rights to these external contents are granted directly by third parties, You will conclude a contract with the respective third party in accordance with the corresponding conditions, when these Terms of Use are agreed-upon. In the event of a violation, the third party may assert claims against You.

Warranty

EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS OF USE, ALL TRAFFICASSIST APP, KAPSCH MARKS AND/OR KAPSCH MATERIALS ARE PROVIDED “AS IS” AND AS “AVAILABLE”. WE, OUR AFFILIATES AND SUBSIDIARIES, SUPPLIERS AND LICENSORS EXPLICITLY DISCLAIM TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE TRAFFICASSIST APP, KAPSCH MARKS AND KAPSCH MATERIALS INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY SPECIFIC PURPOSE, NON-INFRINGEMENT, TITLE OR ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE.

WE EXPRESSLY INFORM YOU AND YOU AGREE THAT YOU USE THE TRAFFICASSIST APP KAPSCH MARKS AND THE KAPSCH MATERIALS AT YOUR SOLE RISK. WE DO NOT REPRESENT OR WARRANT THAT THE TRAFFICASSIST APP, KAPSCH MARKS AND KAPSCH MATERIALS WILL BE PROVIDED UNINTERRUPTED, SECURE OR ERROR FREE OR THAT DEFECTS IN THE TRAFFICASSIST APP, KAPSCH MARKS OR KAPSCH MATERIALS WILL BE CORRECTED UNLESS EXPLICITLY PROVIDED FOR IN THIS AGREEMENT.

Liability

TO THE MAXIMUM EXTENT POSSIBLE AND NOT PROHIBITED BY APPLICABLE LAW WE, OUR AFFILIATES AND SUBSIDIARIES, ALL EMPLOYEES, DIRECTORS, LEGAL REPRESENTATIVES, SUPPLIERS, LICENSORS OR ANY THIRD PARTIES HAVING A BUSINESS RELATION TO US, SHALL IN NO EVENT BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INDICENTAL, ECONOMIC, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES, OR FOR LOST PROFITS, REVENUES, SALES, DATA OR COST FOR PROCUREMENT OF SUBSTITUTE GOODS, SOFTWARE OR SERVICES, PROPERTY DAMAGE, PERSONAL INJURY, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS OR BUSINESS INFORMATION, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATED TO (i) THESE TERMS OF USE, (ii) THE USE OR INABILITY TO USE THE TRAFFICASSIST APP, THE KAPSCH MARKS OR KAPSCH MATERIALS EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.

AS SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF LIABILITY BUT MAY ALLOW LIABILITY TO BE LIMITED IN SUCH CASES OUR LIABILITY, THE LIABILITY OF OUR AFFILIATES AND SUBSIDIARIES, ALL EMPLOYEES, DIRECTORS, LEGAL REPRESENTATIVES, SUPPLIERS, LICENSORS OR ANY THIRD PARTIES SHALL BE LIMITED TO EURO FIVEHUNDRED (€ 500,--).

Support

Unless and only to the extent otherwise explicitly stated in these Terms of Use We do not have any obligation to provide You, with any support or maintenance services. We may correct, improve or change the TrafficAssist App from time to time.

Error reporting

You may provide Us with information and feedback concerning suggestions for improvements, ideas as well as about errors, problems, complaints or any other matter related to the TrafficAssist App (together “Feedback”).

You acknowledge and agree that We are under no obligation of confidentiality with respect to the Feedback. It is under our full and sole discretion to respond to Your Feedback, to take into consideration Your Feedback or to rectify any reported errors, problems or complaints. You further acknowledge and agree that You shall not retain, acquire or assert any intellectual property right or other right, title or interest in or to the Feedback and you acknowledge that We also may have developed ideas similar to Your Feedback. In the event the transfer of ownership to the Feedback is not possible due to applicable mandatory laws, You grant Us and Our affiliates an exclusive, transferrable, irrevocable, free-of-charge, sub-licensable, unlimited and perpetual right to use (including copy, modify, create derivative works, publish, translate, distribute and commercialize) Feedback in any manner and for any purpose.

Confidentiality 

You will take reasonable steps to protect Kapsch Confidential Information and You will use the Confidential Information only for purposes of our business relationship. You must not disclose our Confidential Information to third parties.

Data privacy 

You acknowledge and agree that by using Our TrafficAssist App, communicating with You or any other process related to the fulfillment of the Agreement personal data of You and/or End Users may be processed by Us. You acknowledge and accept that we process personal data according to and to the extent described in our data privacy statement issued on www.kapsch.net/en/traffic-assist-app-privacy-statement.

Term and termination 

The Agreement comes into force upon acceptance of the Terms of Use and automatically ends if

  1. We terminate this Agreement according to the Terms of Use or under applicable law.
  2. You are in breach of any of Your obligations and duties, representations or warranties under this Agreement or any law applicable to this Agreement.
  3. We decide not to provide the TrafficAssist App any longer.
  4. You terminate this Agreement by uninstalling TrafficAssist App.
     

Notwithstanding any of these Terms of Use, Kapsch reserves the right, without notice and in its sole discretion, to terminate Your license to use the TrafficAssist App and to block or prevent future Your access to and use of the TrafficAssist App.

Immediately upon expiry or termination Your license according to this Agreement and the right to use the TrafficAssist App, Kapsch Marks and Kapsch Materials ceases and you will no longer have access to the TrafficAssist App.

You must immediately stop using the TrafficAssist App, Kapsch Marks and Kapsch Materials and uninstall, delete and destroy at Your own expense any of these as well as related software, all backup copies, and all other related materials provided by Us.

Those provisions of the Agreement that naturally survive termination shall survive the automatically ending of the Agreement.

Governing law and dipuste resolution 

This Agreement shall be governed by and construed under the substantive law of Austria without giving effect to the conflict of laws provisions of any jurisdiction. The United Nations Convention of Contracts for the International Sale of Goods is explicitly excluded and shall not apply to this Agreement.

In any case of dispute between You and Kapsch arising out or related to the Agreement, or the validity, enforceability or interpretation of the Agreement and/or these Terms of Use You and Kapsch submit to the exclusive jurisdiction of the competent court in Vienna, Austria.

The foregoing provisions do not prevent either You or Kapsch from seeking immediate or injunctive relief in any court of competent jurisdiction.

Miscellaneous

(a) Entire Agreement

These Terms of Use constitute the entire agreement between You and Kapsch regarding the subject matter hereof. The Agreement supersedes all prior oral or written undertakings or agreements, communications and representations of You and Kapsch in connection with the subject matter of this Agreement.
 

(b) Severability

If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby. In this event, the parties may start negotiations without undue delay with a view to amend this Agreement so that the invalid or unenforceable provision is replaced by a provision which in its essential purpose comes as close as possible to the invalid or unenforceable provision, or Kapsch may at its sole discretion terminate the Agreement.
 

(c) Relationship

In connection with the Agreement each You and We are independent contractors and as such having no authority to bind or commit the other. Nothing contained in the Agreement shall be construed as creating a partnership, joint venture, employment or agency relationship between You and Kapsch. This Agreement is between You and Kapsch and no third-party beneficiaries are intended except if expressly provided in the Terms of Use.
 

(d) Assignment

You will not transfer or assign any rights and obligations out of this Agreement without prior written agreement from Kapsch.
 

(e) Waiver

Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.
 

(f) Force Majeure

Neither party shall be liable to the other for a failure to perform any of it obligations under this Agreement due to force majeure circumstances beyond its reasonable control, provided such party notifies the other of the delay.
 

(g) Publicity

Unless and to the extent otherwise provided in these Terms of Use all written press or similar media release relating to the terms or existence of this Agreement must be approved in writing by Us prior of their release unless the disclosure is required by applicable law in which case You must provide Us with a notice of such requirement without undue delay to enable Us to object to such disclosure.
 

(h) Notices

You agree to do business electronically with Kapsch, and to receive electronically all current and future notices, disclosures, communications, and information, and that the aforementioned provided electronically satisfies any legal required that such communications be in writing.
 

Last updated: July 1, 2023