Terms and Conditions
General Terms and Conditions for Platform-as-a-service (PaaS) of Oculyze GmbH
Definitions
“Agreement” means this Platform as a Service Agreement.
“Platform and Services” means the cloud-based platform and services.
“PaaS Provider” means the provider of the Platform and Services.
“Client” means the entity signing an order which refers to this Agreement with the intention of using the Platform and Services of the PaaS Provider (incl. its employees, subcontractors, agents, consultants and customers).
“Client Data” means all personal information of the Client which the Client submits to the PaaS Provider in any way (incl. name, contact details, payment details, date of birth, demographic data).
“Client Content” means any content or data that the Client uploads or uses on the Platform or Services
“Trademarks” means the PaaS Provider’s trademarks and logos
“Feedback” means any feedback, suggestions, or ideas provided by the Client to the PaaS Provider regarding the Platform or Services
1. Subject of the Agreement
(1) The subject of the Agreement is according to the Client’s order: (i) for the Client to use the Platform and Services of the PaaS Provider via internet; (ii) for the Client to carry out image analyses using the Platform and Services with a compatible device; (iii) for the PaaS Provider the storage of the Client’s data.
(2) The Client acknowledges that the Platform and Services may only be used for the agreed upon purpose as described in the order signed by the Client and shall not be used for any other purpose.
(3) The Platform and Services are operated by the PaaS Provider as a cloud solution. It enables the Client to use the Platform and Services stored and operated on the servers of the PaaS Provider or of a service provider authorized by the PaaS Provider via internet access during the term of this agreement for its own purposes, store and process its data therewith.
(4) The PaaS Provider will make the Platform and Services available for use to the Client at the router output of the computer center where the server with the Platform and Services software is located (“Transfer Point”). The PaaS Provider is not responsible for the creation or maintenance of the data connection between the Client’s IT systems and the transfer point.
(5) The PaaS Provider will take reasonable measures to provide access to Platform and Services twenty-four (24) hours a day and seven (7) days a week, throughout the year. With the aim of providing the accessibility of the Platform and Services for at least 90% of the time, the PaaS Provider may suspend the provided Platform and Services at its sole discretion, where maintenance work is to be conducted, or it is legally necessary, or the Client has violated essential obligations under this Agreement.
(6) The Client shall not, and shall not permit any third party to, use the Platform and Services to upload any illegal, harmful, or offensive content or data.
(7) The PaaS Provider reserves the right to modify, update, or discontinue the Platform and Services at any time, with or without notice.
(8) The Provider reserves the right to assign any or all of the obligations of the Provider under these Terms and conditions to a third party to perform.
2. Access and Use
(1) Subject to the terms and conditions of this Agreement, the PaaS Provider grants the Client a non-exclusive, non-transferable, limited right to access and use the Platform and Services for the Client’s business purposes.
(2) The Client shall not, and shall not permit any third party to: (i) copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code or sell, assign, sublicense, or otherwise transfer any right in the Platform or Services; (ii) use the Platform or Services for any illegal or unauthorized purpose or in any manner that could damage, disable, overburden, or impair the Platform or Services; (iii) use the Platform or Services to access, store, distribute, or transmit any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (iv) attempt to gain unauthorized access to the Platform or Services, other accounts, computer systems or networks connected to the Platform or Services, through hacking, password mining or any other means; (v) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “scrape,” “data mine” or in any way gather the Platform or Services or reproduce or circumvent the navigational structure or presentation of the Platform or Services; or (vi) use the Platform or Services in any manner that could interfere with or disrupt the integrity or performance of the Platform or Services or any data contained therein.
(3) The PaaS Provider reserves the right to discontinue or modify any aspect of the Platform or Services at any time, in its sole discretion.
(4) The Client shall be responsible for all fees associated with access to and use of the Platform and Services, as well as any applicable taxes.
(5) The Client shall provide the PaaS Provider with accurate and complete billing and contact information, and shall update this information as necessary to keep it current, complete and accurate.
3. Data Protection and Security
(1) The PaaS Provider shall implement and maintain appropriate technical and organizational measures to protect the Client Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons.
(2). The PaaS Provider shall promptly notify the Client in writing of any unauthorized access or disclosure of Client Data that it becomes aware of, and shall take such steps as are reasonably necessary to prevent any further unauthorized access or disclosure.
(3) The PaaS Provider shall not access, use, process or disclose any Client Data, except: (i) as necessary to provide the Platform and Services; (ii) as required by law; or (iii) as directed by the Client in writing.
(4) The PaaS Provider shall assist the Client in ensuring compliance with its obligations under any applicable data protection laws, including but not limited to the General Data Protection Regulation (GDPR).
(5) The PaaS Provider shall provide the Client with all information necessary to demonstrate compliance with the obligations laid down in this section and shall allow for and contribute to audits, including inspections, conducted by the Client or an auditor mandated by the Client.
4. Intellectual Property
4.1 Ownership
(1) The PaaS Provider shall retain all rights, title, and interest in and to the Platform, Services and any and all proprietary software, technology, and other materials used in connection with the Platform and Services, including all intellectual property rights.
(2) The Client shall not, and shall not permit any third party to, copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code or sell, assign, sublicense, or otherwise transfer any right in the Platform or Services.
(3) The Client shall have no rights in the Platform or Services other than the limited right to use the Platform or Services in accordance with this Agreement.
(4) The Client shall not remove or alter any proprietary or intellectual property rights notices on the Platform or Services.
4.2 Licenses
(1) Subject to the terms and conditions of this Agreement, the PaaS Provider grants the Client a non-exclusive, non-transferable, limited license to access and use the Platform and Services for the Client’s business purposes during the term of this Agreement.
(2) The Client shall not, and shall not permit any third party to, reproduce, distribute, sell, transfer, sublicense, or otherwise make the Platform or Services available to any third party, except as specifically permitted by this Agreement.
(3) The Client shall not, and shall not permit any third party to, use the Platform or Services for any illegal or unauthorized purpose or in any manner that could damage, disable, overburden, or impair the Platform or Services.
(4) The license granted under this section shall automatically terminate upon termination or expiration of this Agreement.
4.3 Client Content
(1) The Client shall retain all right, title, and interest in and to any content or data that the Client uploads or uses on the Platform or Services, including all intellectual property rights.
(2) The Client grants the PaaS Provider a non-exclusive, worldwide, royalty-free, fully paid-up, and sublicensable license to access, use, process, copy, distribute, transmit, display, and perform the Client Content for the purpose of providing the Platform and Services to the Client.
(3) The PaaS Provider is entitled to use, in particular to reproduce, process and make available to a third party, the Client Content associated with the analyses and results in anonymous form to improve the Platform or Services, as well as for the purpose of research and development.
(4) The Client represents and warrants that it has all necessary rights to upload or use the Client Content on the Platform or Services, and that such use does not infringe any third party rights.
(5) The Client shall be solely responsible for the accuracy, completeness, and legality of the Client Content.
(6) The PaaS Provider shall not be responsible or liable for any loss or damage to the Client Content or for any loss or damage of any kind incurred as a result of the use or access of the Client Content.
4.4 Infringement
(1) The PaaS Provider shall promptly notify the Client in writing of any claim or action that alleges that the Platform or Services infringe the intellectual property rights of any third party.
(2) The PaaS Provider shall cooperate with the Client in the defense of any such claim or action and shall allow the Client to control the defense and settlement thereof, at the Client’s expense.
(3) If the Platform or Services, or any part thereof, are held by a court of competent jurisdiction to infringe any third party’s intellectual property rights, or if the PaaS Provider receives notice of such claim, or if the PaaS Provider believes that the Platform or Services may infringe any third party’s intellectual property rights, the PaaS Provider may, at its option and expense: (i) obtain for the Client the right to continue using the Platform or Services; (ii) modify the Platform or Services to make them non-infringing; or (iii) terminate the Client’s right to use the Platform or Services and provide the Client with a pro-rata refund of any prepaid fees, based on the remaining term of this Agreement.
(4) The Client shall promptly notify the PaaS Provider of any actual, suspected, or alleged infringement of the intellectual property rights of any third party related to the Client Content.
(5) The Client shall cooperate with the PaaS Provider in the defense of any such claim or action and shall allow the PaaS Provider to control the defense and settlement thereof, at the PaaS Provider’s expense.
4.5 Trademarks
(1) The PaaS Provider grants the Client a non-exclusive, non-transferable license to use the PaaS Provider’s trademarks and logos (the “Trademarks”) for the sole purpose of identifying the Platform and Services in the Client’s marketing and promotional materials and on the Client’s website.
(2) The Client shall use the Trademarks only in accordance with the PaaS Provider’s guidelines and instructions and shall not use the Trademarks in any way that is likely to cause confusion or dilute the PaaS Provider’s rights in the Trademarks.
(3) The Client shall not, and shall not permit any third party to, use the Trademarks or any confusingly similar marks as part of the Client’s corporate or product names or in any manner that creates the impression that the Client and the PaaS Provider are the same or related entities.
(4) The Client shall not, and shall not permit any third party to, register or use any domain name, social media account, or any other online presence that includes any of the Trademarks or any confusingly similar marks.
(5) The license granted under this section shall automatically terminate upon termination or expiration of this Agreement.
(6) The Client acknowledges that the PaaS Provider is the sole owner of the Trademarks and that the Client acquires no rights in the Trademarks except as set forth in this Agreement.
4.6 Feedback
(1) The Client may provide feedback, suggestions, or ideas (“Feedback”) to the PaaS Provider regarding the Platform or Services.
(2) The Client grants the PaaS Provider a perpetual, non-exclusive, worldwide, royalty-free, fully paid-up, and sublicensable license to use, reproduce, distribute, display, perform, and incorporate the Feedback into the Platform or Services or any other products or services of the PaaS Provider.
(3) The Client acknowledges that the PaaS Provider may have similar feedback, suggestions, or ideas under development or consideration, and that the PaaS Provider shall not be liable for any similarities between the Feedback and any other products or services of the PaaS Provider.
(4) The Client shall not provide feedback, suggestions, or ideas that are confidential or proprietary to the Client or any third party without the express written consent of the Client or the third party.
5. Warranty and Disclaimers
(1) The PaaS Provider represents and warrants that it has the right and authority to enter into this Agreement and to perform its obligations hereunder.
(2) The PaaS Provider represents and warrants that the Platform and Services will be provided in a professional and workmanlike manner, in accordance with industry standards.
(3) The PaaS Provider does not warrant that the Platform or Services will be uninterrupted or error-free, and shall not be liable for any interruptions or errors.
(4) The PaaS Provider does not warrant that the Platform or Services will meet the Client’s requirements or that the operation of the Platform or Services will be completely secure or free from errors or viruses.
(5) The PaaS Provider shall not be liable for any loss or damage arising from any unauthorized access to or use of the Client’s account or data.
(6) The Client acknowledges and agrees that the Platform and Services are provided on an “AS IS” and “AS AVAILABLE” basis, and that the PaaS Provider makes no representations or warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose, non-infringement, or that the Platform or Services will meet the Client’s requirements.
(7) The Client assumes the entire risk as to the quality and performance of the Platform and Services.
6. Limitation of Liability
(1) The PaaS Provider shall not be liable for any indirect, incidental, consequential, special, or exemplary damages, including but not limited to, damages for loss of profits, revenue, business, or data, arising out of or in connection with this Agreement or the use of the Platform and Services, even if the PaaS Provider has been advised of the possibility of such damages.
(2) The PaaS Provider’s total liability to the Client arising out of or in connection with this Agreement or the use of the Platform and Services, whether in contract, tort, or otherwise, shall not exceed the amount of any fees paid by the Client to the PaaS Provider in the 12 months preceding the claim.
(3) The PaaS Provider shall not be liable for any failure or delay in performance of its obligations under this Agreement caused by any act of God, war, strikes, or other labor disputes, embargoes, government orders or any other force majeure event.
(4) The Client shall be liable for any damages caused by its misuse of the Platform and Services and shall indemnify the PaaS Provider against any claims, losses, costs, expenses, or damages that may be incurred as a result.
(5) The PaaS Provider shall not be liable for any failure to perform its obligations hereunder if such failure is caused by the Client’s failure to make payment when due.
7. Indemnification
(1) The Client shall indemnify, defend and hold harmless the PaaS Provider, its affiliates, and their respective directors, officers, employees and agents from and against any and all claims, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising out of or in connection with: (i) the Client’s use of the Platform or Services; (ii) the Client’s violation of this Agreement; (iii) the Client’s violation of any rights of another; (iv) the Client’s failure to comply with any applicable laws or regulations; or (v) the Client’s negligence or wilful misconduct.
(2) The PaaS Provider shall promptly notify the Client in writing of any claim for which the PaaS Provider intends to seek indemnification under this section and shall provide the Client with reasonable assistance in defending such claim, at the Client’s expense.
(3) The Client shall have the right to participate in the defense of any such claim with counsel of its own choosing at its own expense.
(4) The PaaS Provider shall not settle any such claim without the Client’s prior written consent, which shall not be unreasonably withheld or delayed.
(5) This indemnification shall survive the termination of this Agreement for a period of 12 months after the date of termination.
8. Fees and Payment
(1) Payment term and amount of fees, as well as the method of payment, are set forth in the Client’s order. Unless otherwise stipulated in an individual case, prices do not include any sales, use, consumptions, value-added, or any other tax (including applicable withholding tax) and the Client is responsible for the payment of any and all such taxes. Bank fees shall be borne by the Client.
(2) The PaaS Provider may increase its prices on an annual basis, provided that the PaaS Provider gives the Client 30 days prior written notice of any such increase. Should the fees be increased more than 5%, the User is entitled to terminate the contract at the end of the current contract month.
(3) The Client has to check immediately the invoices of the PaaS Provider, as well as credits, refunds, chargebacks and all other transactions, which were credited or charged to the Client’s bank account. Any objections must be raised within twenty-five (25) Business Days (“Business Day” means every day from Monday to Friday except statutory holidays) after receipt of the respective invoice or charge. Without a timely objection, the invoice or charge shall be regarded as approved.
(4) If the Client fails to make any payment when due, the PaaS Provider may suspend the Client’s access to the Platform and Services until such payment is made.
(5) Any amount not paid when due shall bear interest at the rate of 1,5% above the key interest rate set by the ECB, from the date such amount was due until the date of payment.
9. Term and Termination
(1) The minimum term of this Agreement is 12 months (“Initial Term”), unless otherwise agreed in writing. Upon expiration of the Initial Term, the Agreement will subsequently be renewed automatically by another 12 months (“Subsequent Term”) if not terminated by the Client in writing twenty-five (25) Business Days (“Business Day” means every day from Monday to Friday except statutory holidays) prior to the end of each term. In case of a termination the Agreement will cease at the end of the term.
(2) The PaaS Provider may terminate this Agreement immediately upon written notice to the Client if the Client breaches any of its obligations under this Agreement, including but not limited to failure to make payment when due.
(3) Upon termination of this Agreement for any reason, the Client shall immediately cease all use of the Platform and Services and shall pay all outstanding fees and charges up to the date of termination.
(4) Upon termination of this Agreement, the Client’s right to access and use the Platform and Services shall terminate, and the PaaS Provider shall have no further obligation to provide the Platform and Services to the Client.
(5) The Client has to pay to the PaaS Provider all due amounts according to the terms of this Agreement immediately after the effective termination of this Agreement.
(6) Any provisions of this Agreement that by their nature should survive termination or expiration shall survive termination or expiration.
10. General Terms
(1) The terms of this Agreement shall apply exclusively. Terms and conditions of the Client do not apply. Counter confirmation of the Client with reference to its own terms and conditions are expressly excluded.
(2) This Agreement may not be amended or modified except in writing signed by both parties.
(3) No failure or delay by either party in exercising any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or remedy.
(4) Neither party shall be liable for any failure to perform its obligations hereunder (other than payment obligations) if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of such party, including, without limitation, acts of God, war, strikes, or other labor disputes, embargoes, government orders or any other force majeure event. The party affected by such occurrence shall give prompt written notice thereof to the other party and shall use its reasonable efforts to avoid or remove such causes of non-performance and shall continue performance hereunder with reasonable dispatch whenever such causes are removed.
(5) The PaaS Provider has the right to change, in its discretion, the terms of this Agreement at any time and to revise, remove, delete or add certain conditions to the provisions on the Platform and Services, if it is required due to change of law, the jurisdiction or market conditions.
(6) The PaaS Provider will inform the Client about proposed changes to the terms of this Agreement by email to the primary email address the Client provided.
(7) The proposed changes shall take effect two (2) months after the date of the change notification, provided that the Client has not raised objection to the changes by notification to the PaaS Provider prior to the effective date. Changes to the benefit of the Client shall take effect immediately, provided that it has been so communicated in the change notification.
(8) The current version of the terms of this Agreement is available on the website of the PaaS Provider.
11. Applicable Law; Place of Jurisdiction
(1) For the terms of this Agreement as well as the entire contractual relationship between the PaaS Provider and the Client, the law of the Federal Republic of Germany (not including the UN Convention on Contracts for the Sale of Goods) shall apply.
(2) For the Client with its principal place of business in Germany, Austria or Switzerland, the following jurisdiction shall apply: Place of jurisdiction is the principal place of business of the PaaS Provider. The court has jurisdiction over all disputes arising from or in connection with the terms of this Agreement and contract(s) between the parties. Before raising the claim in legal proceedings, the parties shall endeavor to resolve the dispute through negotiation.
(3) For the Client with its principal place of business outside Germany, Austria and Switzerland, the following arbitration agreement shall apply: All disputes arising out of or in connection with the terms of this Agreement and contract(s) between the parties or the validity thereof shall be finally settled in accordance with the Arbitration Rules of the German Arbitration Institute (DIS) without recourse to the ordinary courts of law. The place of arbitration is the principal place of business of the PaaS Provider. Language of the arbitration shall be English.
12. Severability
Should any provision of the terms of this Agreement be or become, totally or partially, invalid or ineffective, the validity of the remaining provisions shall not be affected. Where the legislative rules (sec. 306 German Commercial Code) are not available or not sufficient to close the gap, the parties shall strive to substitute the invalid provision with a valid one which as closely as possible achieves the economic purpose of the invalid provision.