Introduction
The following General Software Rental Terms (hereinafter "GSRT") of smart2i Industry Intelligence GmbH, Theodor-Hymmen-Straße 3, D-33613 Bielefeld (hereinafter "smart2i" or "Contractor") apply to all contracts concluded between the Contractor and its clients (hereinafter "Client") concerning the provision and use of software as a service (Software-as-a-Service, hereinafter "SaaS").
Deviating, conflicting, or supplementary general terms and conditions of the Client shall not become part of the contract unless smart2i expressly agrees to their validity in writing. These GSRT shall also apply if smart2i, knowing of the Client's conflicting or differing terms, provides services without reservation.
§ 1 Subject of the contract
1.1 smart2i provides the Client with the software designated in the respective contract (hereinafter the "Software") for use via the internet as a SaaS solution. The Software is operated on servers provided by smart2i or by a hosting provider commissioned by smart2i.
1.2 The specific scope of services arises from the respective service description, the offer, and the order confirmation. The service description and the specifications contained therein are decisive for the contractually owed quality of the Software.
1.3 smart2i may further develop and adapt the Software at any time insofar as this serves technical progress, appears necessary, or is required to remedy malfunctions, and provided that the contractually owed functionality is not significantly restricted.
§ 2 Services
2.1 SaaS provision
smart2i provides the Client with the Software for use via an encrypted internet connection (HTTPS). Access is via a common web browser. smart2i owes the provision of the Software in its current version.
2.2 Hosting and operation
The Software is hosted in a professional data centre within the European Union. smart2i guarantees the availability of the Software agreed in Annex 1 (SLA).
2.3 Data backup
smart2i carries out regular backups of the data stored in the course of using the Software. Backups are encrypted and kept at a location separate from the production system. The backup intervals and retention period are defined in Annex 1 (SLA).
2.4 Support
smart2i offers the Client technical support by email and phone during regular business hours (Monday to Friday, 9:00 to 17:00, except public holidays at the registered office of smart2i). Response times follow the disruption category defined in Annex 1 (SLA).
2.5 Training and induction
smart2i offers the Client an induction into the Software. The type and scope of training are agreed in the respective contract. Additional training can be commissioned separately.
§ 3 Software
3.1 Rights of use
smart2i grants the Client, for the duration of the contract, the non-exclusive, non-transferable, non-sublicensable right to use the Software within the agreed scope of use. Use is limited to the number of users specified in the contract.
3.2 Restrictions on use
The Client is not entitled to copy, decompile, reverse engineer, disassemble, or otherwise determine the source code of the Software, unless this is expressly permitted under applicable law. Granting sub-licences or transferring the Software to third parties is not permitted without prior written consent of smart2i.
3.3 Intellectual property
All rights to the Software, including all copyrights, patents, trademarks, and other industrial property rights, remain with smart2i or its licensors. Through the contract, the Client does not acquire any rights to the Software beyond the rights of use stated in § 3.1.
§ 4 Client obligations
4.1 The Client ensures that on its side the technical conditions for the use of the Software are met, in particular a sufficient internet connection and a suitable web browser.
4.2 The Client is responsible for the security of its access credentials. Access credentials may not be passed on to unauthorised third parties. The Client must inform smart2i without undue delay if there is reason to suspect that access credentials have become known to third parties.
4.3 The Client undertakes to use the Software only within the scope of the contractual agreements and the applicable legal provisions. In particular, the Client may not store or distribute any unlawful content via the Software.
4.4 The Client provides smart2i with the information and data required for the provision of services in a timely and complete manner and designates a responsible point of contact.
§ 5 Disruptions
5.1 smart2i will resolve disruptions of the Software in accordance with the service levels agreed in Annex 1 (SLA). The Client must report disruptions without undue delay, describing the fault as precisely as possible.
5.2 In the case of disruptions caused by circumstances outside smart2i's area of responsibility (e.g. force majeure, fault of the Client, disruptions of third-party telecommunication networks), there is no claim to remedy or reduction.
5.3 Planned maintenance work is carried out outside regular business hours where possible and is announced with reasonable notice. Maintenance windows do not count as outages for the purpose of availability calculation.
§ 6 Liability
6.1 smart2i is liable without limitation for intent and gross negligence. For slight negligence, smart2i is only liable for breach of a material contractual obligation (cardinal obligation) and only up to the amount of the foreseeable damage typical for the contract.
6.2 The above limitations of liability do not apply to damages resulting from injury to life, body, or health, or to claims under the German Product Liability Act.
6.3 smart2i's liability for data loss is limited to the typical restoration effort that would have arisen had regular and appropriate backup copies been made.
6.4 Unless intent is involved, smart2i's liability is limited in amount to the total remuneration paid by the Client in the 12 months prior to the occurrence of the damage event.
§ 7 Remuneration
7.1 The Client pays smart2i the remuneration agreed in the contract. Unless otherwise agreed, billing takes place monthly in advance.
7.2 All prices are exclusive of the applicable statutory VAT.
7.3 Invoices are due within 14 days of the invoice date without deduction. In the event of default in payment, smart2i is entitled to charge default interest at the statutory rate.
7.4 smart2i is entitled to adjust the remuneration once per year at the beginning of the year. A price adjustment is communicated to the Client in text form at least three months before it takes effect. In the event of a price increase of more than 5 %, the Client has a special right of termination at the time the price increase takes effect.
§ 8 Confidentiality
8.1 Both parties undertake to treat all confidential information of the other party obtained in the course of the contract confidentially and to use it only for the purposes of the contract.
8.2 Confidential information is any information that is designated as confidential or whose confidentiality arises from the circumstances. This includes in particular trade secrets, technical data, prices, and conditions.
8.3 The confidentiality obligation does not apply to information that (a) is or becomes publicly known, (b) was already known to the recipient prior to disclosure, (c) is lawfully disclosed to the recipient by third parties without confidentiality restriction, or (d) must be disclosed due to legal obligation.
8.4 The confidentiality obligation continues beyond the duration of the contract for a period of three years.
§ 9 Data protection
9.1 Insofar as smart2i processes personal data on behalf of the Client in the course of contract performance, the parties shall conclude a data processing agreement in accordance with Annex 2 (DPA).
9.2 smart2i will comply with the legal provisions applicable to the protection of personal data, in particular the GDPR and the BDSG, and will bind the persons employed in its area to data secrecy.
9.3 After termination of the contract, smart2i will delete or return the personal data processed on behalf of the Client at the Client's discretion, unless there is a legal retention obligation.
§ 10 Term and termination
10.1 The contract term arises from the respective contract. Unless otherwise agreed, the minimum contract term is 12 months from the provision of the Software.
10.2 The contract is automatically extended by a further 12 months unless it is terminated in writing with a notice period of three months to the end of the respective contract term.
10.3 The right of both parties to extraordinary termination for cause remains unaffected. Cause for smart2i exists in particular if the Client, despite reminder, is in default with payment of the remuneration for two consecutive months.
10.4 Terminations require text form (email is sufficient).
§ 11 Set-off and retention
11.1 The Client is only entitled to set-off with undisputed or legally established counterclaims.
11.2 The Client may exercise a right of retention only on the basis of counterclaims arising from the respective contractual relationship.
§ 12 Amendments to the GSRT
12.1 smart2i reserves the right to amend these GSRT with effect for the future, insofar as this is necessary and does not unreasonably disadvantage the Client. This applies in particular in the case of changes in law, changes in jurisprudence, or changes in economic conditions.
12.2 Amendments are communicated to the Client in text form at least six weeks before the planned entry into force. If the Client does not object to the amendment within four weeks after receiving the amendment notice, the amendment is deemed approved.
§ 13 Final provisions
13.1 The law of the Federal Republic of Germany applies, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
13.2 The place of jurisdiction for all disputes arising from or in connection with the contract is Bielefeld, provided the Client is a merchant, a legal entity under public law, or a special fund under public law.
13.3 Should individual provisions of these GSRT be or become invalid, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a valid provision that comes closest to the economic purpose of the invalid provision.
13.4 No verbal side agreements exist. Amendments and supplements to the contract require text form. This also applies to the cancellation of this text-form requirement.
Annex 1 – Service Level Agreement (SLA)
1. Availability
smart2i guarantees an availability of the Software of 99.5 % on monthly average. Availability is calculated based on the total hours of the respective calendar month minus the scheduled maintenance windows.
2. Maintenance window
Scheduled maintenance work typically takes place on Saturdays between 22:00 and Sundays 06:00 (CET/CEST). smart2i informs the Client at least 5 working days in advance of scheduled maintenance work.
3. Disruption categories and response times
- Critical: Total outage of the Software, Response time: 4 hours (during business hours)
- High: Significant functional limitation, Response time: 8 hours (during business hours)
- Normal: Individual functions restricted, Response time: 2 working days
- Low: Minor deviations, requests, Response time: 5 working days
4. Data backup
Daily incremental backup, weekly full backup. Backups are kept for at least 30 days. Backups are stored geo-redundantly at a separate location within the EU.
Annex 2 – Data Processing Agreement (DPA)
1. Subject and duration
This Data Processing Agreement concretises the data protection obligations of the contracting parties pursuant to Art. 28 GDPR. It applies for the duration of the main contract.
2. Type and purpose of processing
The type of processing includes the collection, storage, modification, use, and deletion of personal data in the course of providing the SaaS solution. The purpose of processing arises from the main contract.
3. Type of personal data
The subject of processing is the data entered and uploaded by the Client into the Software, in particular master and contact data, usage data, and machine data, insofar as these have a personal reference.
4. Technical and organisational measures
smart2i undertakes to take the technical and organisational measures described in Art. 32 GDPR. These include in particular the pseudonymisation and encryption of personal data, ensuring the confidentiality, integrity, availability, and resilience of the systems, as well as procedures for the regular review and evaluation of the effectiveness of these measures.
5. Sub-processors
The sub-processors currently in use are known to and approved by the Client. smart2i informs the Client of any intended change regarding the addition or replacement of sub-processors. The Client may object to the change within four weeks of notification.