BehaviorQuant Behavioral Finance Technologies GmbH (FN 485352 d)
Kolingasse 6/XI, 1090 Vienna
(hereinafter referred to as „Behaviorquant“)
Last modified: May 31, 2023
Behaviorquant is a limited liability company with its registered office in Vienna. Behaviorquant has developed several software modules (hereinafter referred to as the “Software”). The Software enables the user (hereinafter referred to as the “Customer”, Behaviorquant and the Customer collectively hereinafter referred to as “Parties”) to perform an objective behavioral analysis of decision makers in the finance and investment sector. It generates algorithmically and on the basis of an automated dialog from science-based stimuli (e.g. questions, tasks and scenarios) feature profiles and behavioral predictions of the users as well as recommendations for decision support and behavioral optimization.
All linked documents form an integral part of this Agreement.
1. Subject Matter of this Agreement
1.1 Behaviorquant is the owner of the Software and is entitled to grant the license rights under this Agreement. A description of the technical data or features and areas of use of the can be found in the signed service order form or is made by selection of the customer in the pay-as-you-go mode. The information contained therein is exclusively descriptive in nature and shall not be interpreted or construed as assured qualities. Behaviorquant is entitled to change, to complement, to update or upgrade the Software and to fix bugs at his own discretion. The Customer permits Behaviorquant to make modifications if this does not affect the use of the Software in accordance with this Agreement.
1.2 The Software is protected by copyright according to the provisions on the protection of computer programs. The Customer expressly acknowledges the foregoing protection. In particular, the copyright includes the program code, all related physical and electronic documentation, the appearance of the software, the design of the user interface and the input and output masks and expressions, the content, structure and organization of the program files, the program name, logos and other forms of representation within the Software. All copyrights and other intellectual property rights shall remain with Behaviorquant as an exclusive owner. The Customer agrees not to remove, obscure, deface or alter any information of or reference to any intellectual property rights and/or Behaviorquant’s rights and property (including, but not limited to Behaviorquant’s trademarks and company names) from any physical or digital product of Behaviorquant, whether such information or reference is digitally or physically printed or affixed on, contained in, or in any way or form associated with any of Behaviorquant’s products, materials or documentation.
1.3 The rights of the Customer are limited exclusively to the use of the Software and the related intellectual property rights within the scope of the rights granted in this Agreement. With this Agreement, Behaviorquant does not grant the Customer any further rights exceeding the aforementioned rights of use or any other intellectual property rights or company secrets. Any unauthorized use and/or unauthorized modification of the Software and related intellectual property rights of Behaviorquant is a material breach of this Terms.
2. Scope of the License
2.1 Use of the Software
By receipt of payment of the agreed fee, Behaviorquant grants the Customer the rights of use to the Software described in Point 2.2 for the duration of this Agreement.
2.2 By receipt of payment of the agreed fee, Behaviorquant grants the Customer a limited, personal, limited in time, limited in territory, non-exclusive, non-sub licensable and non-transferable license to use the Software in accordance with this Agreement.
2.3 The term of this Agreement is based on the described scope of services according to the signed service order form or according to the customer’s selection in the pay-as-you-go mode. The respective selected package, and thus the respective agreed scope of use is marked separately in accordance with the signed service order form or after selection by the customer in pay-as-you-go mode.
2.4 The Customer is not entitled to sell, assign, rent, lease, distribute, export or import the Software or parts thereof to any third party, to act as an intermediary or supplier of or grant any other rights related to the Software or parts thereof to any third party.
2.5 Installation and configuration services are not subject matter of this Agreement. Any workshops or training courses that provide the Customer with knowledge on the proper use of the Software shall be agreed separately. This shall also apply to user support (support) during the term of the Agreement.
2.6 Any use, duplication, passing on, modification or reproduction of the content of the Software not expressly authorized by Behaviorquant is prohibited. Any use, including partial use, outside of this Agreement and the usual intended purpose of the Software is expressly prohibited. The Software shall be treated like any other copyright material. Other parts of the Software, e.g. supplied designs, templates, presentations may only be used in connection with the Software and are also subject to these provisions.
3.1 With the exception of planned non-availabilities due to necessary software updates or similar changes to the Software at the instigation of Behaviorquant or instances of force majeure, Behaviorquant assures an average monthly availability of 99,9 %. Force majeure shall include, but not be limited to, fires, floods, riots, strikes, labor disputes, freight embargoes, or transportation delays, shortage of labor, inability to secure or shortages of fuel, materials, supplies, equipment, telecommunications, information systems, grids or power, or any other cause, all of which shall be beyond the reasonable control of a Party.
3.2 Updates and similar performance improvements or bug fixes that limit the availability of the Software for a defined period of time shall be communicated to the Customer with a lead time of at least 2 (two) business days.
4. Data Processing
4.1 The Software enables the Customer to analyze decision makers in the financial and investment sector. The Customer shall remain responsible for data protection within the meaning of Art 4 (7) of the General Data Protection Regulation (GDPR) even with the use of the Software. In this context, Behaviorquant does not warrant that the Customer has implemented all legal data protection requirements by using the Software. Claims against Behaviorquant due to the Customer’s breach of data protection obligations are excluded. In particular, the Customer shall be solely responsible for the use of the data, data files and results processed within the scope of the evaluation by the Customer in conformity with data protection and labor laws. In case users of the Customer, the Customer’s employees or customers or authorities make claims against Behaviorquant in this respect, the Customer shall fully indemnify and hold Behaviorquant harmless.
4.2 To the extent that Behaviorquant processes personal data under this Agreement, Behaviorquant acts as a processor for the Customer within the scope of the fulfilment of the Agreement in accordance with Art 32 GDPR. The obligations of both Parties are regulated in the Data Processing Agreement.
4.3 Insofar as this is necessary for the fulfilment of the Agreement, the Customer grants Behaviorquant the right to duplicate the data to be stored by Behaviorquant on behalf of the Customer. Furthermore, Behaviorquant shall be entitled to keep the data in a failover system or separate failover data centre. In order to eliminate malfunctions, Behaviorquant shall also be entitled to make changes to the structure of the data or the data format.
4.4 The Customer shall appoint one (or if applicable, more than one, according to the signed service order form or according to the Customer’s selection in the pay-as-you-go mode) administrator(s). Subsequently, an administrator shall be authorized to create and to view the results of the respective user created by the administrator.
4.5 In compliance with the applicable laws and regulations, in particular the General Data Protection Regulation (EU) 2016/679 (GDPR), Behaviorquant shall be entitled to process all data processed within the scope of the evaluations (whereby “process” shall be interpreted in kind referred to in Art 4 (2) GDPR) in anonymized form (also without personal reference) for future product developments and product enhancements as well as for the improvement of its algorithms and machine learning processes. In the event of further processing by Behaviorquant, all user data shall be anonymized by Behaviorquant to such an extent that it cannot be assigned to either the Customer or the users. Due to the anonymization of the data, the user data cannot be personalized by Behaviorquant, thus cannot be assigned to individual persons and is therefore not subject to the provisions of the GDPR.
4.6 Prior to using the Software for the first time, users have to consent to the transmission and processing of their data; this is done in the course of a declaration of consent integrated by Behaviorquant prior to the first-time use. Without such consent, the Software cannot be used by the user. Data processing by Behaviorquant within the fulfilment of the Agreement shall be carried out in lawful manner and in compliance with the provisions of the GDPR, if applicable.
5. Rights and Obligations of the Customer
5.1 Prohibition of passing on
Without the prior written consent of Behaviorquant, the Customer is not entitled to pass on the Software and the associated documentation to third parties, neither for consideration nor free of charge.
Without the prior written consent of Behaviorquant, the Customer is not entitled to rent, lease or leasehold the Software or make it available for ASP use (application service providing).
5.2 Decompilation and program modifications
5.2.1 Decompilation of the Software into other code forms or other types of reverse engineering of the various production stages of the Software (reverse engineering) and/or changes to the program code are expressly prohibited.
5.2.2 Translations, editing, arrangement and other reworking of the Software and parts thereof as well as the duplication of results obtained thereby are expressly prohibited.
5.2.3 The Customer is not entitled to make changes or interventions to the Software, not even by third parties or in order to eliminate possible program errors.
5.2.4 The Customer shall provide reasonable assistance to Behaviorquant in the performance of the contractual services.
5.2.5 The Customer shall be responsible for the proper and regular backup of his data.
5.2.6 The Customer shall meet system requirements for the Software in order to use the Software. The Customer shall be responsible for meeting such system requirements.
5.2.7 The Customer shall keep the data made available to him secret and ensure that any employees to whom access data is made available to do so as well. Behaviorquant’s service may not be made available to third parties unless this has been expressly agreed by the Parties.
6.1 The Parties shall keep all technical, financial and commercial information, in particular of products, process methods, process techniques and procedural processes, statistics and systems, furthermore any information about the company of the respective other Party, about customers, prices, sales conditions, financial matters, technical equipment, research, know-how as well as all other technical, financial or commercial information – irrespective of whether these have been made known or accessible in written, oral or any other form – during and, if applicable, after the cooperation confidential and may only be used in accordance with this Agreement and mandatory legal provisions.
6.2 Insofar as company secrets are disclosed to the Customer during the use of the Software, the Customer undertakes to protect these secrets for an unlimited period, hence after the end of this Agreement. In particular, the Customer shall be obliged to keep the Software and documentation secret and not to disclose or pass them on to third parties, either in whole or in part.
6.3 The obligation to maintain confidentiality shall not apply to information that has demonstrably become public without the Parties’ involvement. Furthermore, the obligation to maintain confidentiality shall not apply to confidential information that was demonstrably already known to the Parties before it was made accessible by the other Party and to confidential information that came to the knowledge of the Parties without a breach of the confidentiality obligation.
6.4 Copyright notices, serial numbers and other program identification features may not be removed or changed.
6.5 Furthermore, the Customer shall ensure that persons attributable to the Customer (e.g. employees, assistants, etc.) do not violate the provisions of 6.1. – 6.4. In case of a violation, the Customer shall also be liable for their conduct.
7. License Fee
7.1 Upon full and unconditional payment of the respective license fee according to the signed service order form or in accordance with the Customer’s selection in the pay-as-you-go mode, the Customer shall receive a non-exclusive, non-transferable right to use the Software for his own purposes for a limited period.
7.2 Payment conditions
The license fee (plus any statutory value added tax) shall be paid in accordance with the payment conditions according to the signed service order form onto the account of Behaviorquant: IBAN AT92 2011 1838 4173 8600, BIC/SWIFT GIBAATWWXXX in the name of BehaviorQuant Behavioral Finance Technologies GmbH or or is transmitted to Behaviorquant in pay-as-you-go mode by the selected payment provider.
7.3 The license fee includes the rights to use the Software.
7.4 The Customer may also agree on a direct debit agreement / EEV as payment method with Behaviorquant.
7.5 Default of payment
In case the Customer is in default of payment of the license fee by more than 2 weeks, Behaviorquant shall be entitled to block the access to the Software after prior reminder and setting of a deadline of at least 2 weeks after expiry of this deadline. The claim for remuneration of Behaviorquant shall remain unaffected by blocking the access. The access to the Software will be reactivated after payment of the arrears, unless the Agreement will be terminated.
8.1 General clause
The Customer confirms that prior to the conclusion of this Agreement he as independently convinced himself that the Software complies with his (system) requirements and that he is aware of the essential functional features of the Software. Behaviorquant warrants that he is entitled to grant licenses to the Software in accordance with the terms of this Agreement and that the use of the Software will not infringe any rights of third parties.
8.2 Material defects
8.2.1 Behaviorquant warrants that the Software can be used in accordance with this Agreement and that the functions specified in this Agreement will be fulfilled. Behaviorquant warrants that the Software conforms to the product description and has been created with due care and skill. Nevertheless, according to the current state of technology, the complete exclusion of software errors is not possible and is not agreed upon. The Customer is not entitled to a reduction or withholding of license fees due to temporary, short-term failures, within the framework of the average monthly availability granted in point 3.1. In case of longer-term failures, exceeding the average monthly availability granted in point 3.1, due to software errors, the Parties shall seek an appropriate solution after making a good effort, which shall primary consist of an extension of the term to be agreed upon without additional remuneration.
8.2.2 Behaviorquant shall correct the defect in the Software that significantly interferes with the intended use of the Software. Depending on the significance of the error, the error correction shall be carried out by Behaviorquant by providing an improved software version.
8.2.3 Behaviorquant does not warrant that the Software meets the requirements, ideas, purposes and wishes of the Customer or that it is compatible with other programs or operating systems used by the Customer.
8.2.4 Behaviorquant gives no warranty for errors, malfunctions and/or damage caused by operating system components, interfaces and/or parameters, the use of unsuitable organizational means and abnormal operating conditions of the Customer. Behaviorquant shall not be responsible for errors, malfunctions or damage resulting from improper operation conditions with respect to the Software.
8.2.5 The Customer shall be entitled to use the data, data files and results on the interactive platform as well as all results and reports submitted to the Customer for his own use. Restrictions on further processing of the data, data files, results and reports by Behaviorquant are excluded. The Customer shall be solely responsible to adhere to the legal regulations (in particular data protection and labor law regulations).
9.1 Behaviorquant assumes no liability for uninterrupted, error-free functioning of the Software. Behaviorquant shall only be liable for damages of any kind, with the exception of personal injury, if the damage is due to gross negligence or intent on the part of Behaviorquant or its vicarious agents, whereby the burden of proof for the existence of gross negligence or intent shall lie with the Customer. The liability of Behaviorquant is limited to the total amount of the license fee as defined in this Agreement. Behaviorquant shall not be liable for any further claims of the Customer, in particular claims for damages including lost profits or due to other financial losses. Behaviorquant shall not be liable for indirect or consequential damages that occur in connection with the contractual relationship, the granting of rights, the deliveries and the services to the Customer. This includes, but is not limited to, damages due to loss of goodwill, work interruptions, computer failure and malfunction, and business damages, losses or the like. Behaviorquant shall not be liable for software, data and/or databases implemented in the Software.
9.2 If the Customer uses the Software contrary to the terms of this Agreement, the liability of Behaviorquant shall be excluded. In particular, Behaviorquant shall not be liable for any damage to the Software caused by the Customer or any third party attributable to the Customer as a result of modifications, extensions or repairs on the Software, unless the modifications, extensions or repairs on the Software are based on the explicit instruction or have been made with the consent of Behaviorquant.
9.3 Behaviorquant shall not be liable for damages if and to the extent that the Customer could have prevented the occurrence by taking reasonable measures, in particular, but not limited to, program and data backup.
9.4 The provisions under this liability clause shall also apply in case the claim is asserted in competition with or instead of warranty claims.
9.5 For the avoidance of doubt, it is emphasized that the Customer is responsible for the legally compliant use and processing of the results received and that the Customer is obliged to indemnify and hold Behaviorquant harmless in this regard.
9.6 The Software is for education and information purposes only. The Software is designed to help financial professionals identify their behavioral characteristics and decision tendencies. All information provided in the report of the Software is for internal use only and must not be further distributed or duplicated in whole or in part by any means without the prior written consent of Behaviorquant. The Customer assumes sole responsibility for any actions or decisions that are made as a result of using any information provided by Behaviorquant and/or the Software. By using reports of the Software, Customer expressly waive and relinquish any and all claims of any nature against Behaviorquant, any affiliated companies, and/or their employees arising out of or in connection with the use of such reports. Behaviorquant makes no guarantees, representations or warranties and accepts no responsibility or liability as to the veracity, accuracy, or completeness of the information and under no circumstances will be liable for any loss or damage caused by reliance on any opinion, advice, or statement made in such reports.
10. Contract Term
This Agreement shall enter into force on the day on which the Software is made available to the Customer. The contract term is based on the signed service order form or on the customer’s selection in pay-as-you-go mode.
The Parties declare their willingness to negotiate an extension of the Agreement after the expiration of the term, provided that the cooperation proves to be successful and fruitful of both Parties.
After prior written and content related coordination and express written consent by the Customer, the Customer permits Behaviorquant to name the Customer as a reference customer in media. Any naming of the Customer as a reference customer of Behaviorquant – including the use of the trademarks and the company name – on Behaviorquant’s website requires the prior coordination of the content and the express written consent of the Customer.
In addition, the Customer may agree to be available as a testimonial for Behaviorquant after prior consultation and express written consent.
12. Termination for Cause
Behaviorquant shall be entitled to terminate this Agreement without notice for the following reasons:
i. a material breach or repeated slight breach of the Agreement by the Customer which is not remedied despite a warning with a reasonable period of grace;
ii. the existence of the conditions for the opening of insolvency proceeding against the Customer if the termination of this Agreement is indispensable for the prevention of serious personal or economic disadvantages of Behaviorquant;
iii. non-payment of the license fee despite a reminder and a grace period of 14 (fourteen) days.
13. Applicable Law / Jurisdiction
Any disputes arising out or in connection with this Agreement, including the question about its occurrence, shall be governed by Austrian law, this to the exclusion of the conflict of laws provisions of the private international law.
The Parties agree that any disputes arising out or in connection with this Agreement shall finally and exclusively be settled by the Commercial Court competent for Vienna.
14. Severability Clause
If provisions of this Agreement turn out to be void or a regulatory gap becomes apparent, the remaining provisions of this Agreement shall not be affected. In such cases, the Parties shall endeavour to make arrangements that come as close as possible to the economic result of the invalid provision in a permissible manner. This shall also apply to bridge any potential regulatory gasps.
15. Final Provisions
15.1 This Agreement and any documents/linked documents referred to herein, contain all agreements regarding the Software between the Parties.
15.2 This Agreement does not establish any corporate, agency, power of attorney or employment relationship. Based on this Agreement, the employees of one Party shall not be regarded as employees of the other Party.
15.3 Oral side agreements to this Agreement have not been made. Modifications, amendments or side agreements to this Agreements may only be made in writing. This also applies t o a change of this requirement (written form).