IDS Imaging Development Systems GmbH ("Provider") offers its customers ("Customers") the "IDS NXT lighthouse" software in the form of Software-as-a-Service ("SaaS"). Use of the software is subject to the following conditions.
Object of the contract and granting of rights
- The Provider makes the software available in the form of SaaS. Accordingly, all Customers have access to the same instance, but the databases with each individual Customer's data are stored logically separated. The Customer is aware that only a certain capacity is available at the same time for training sessions. If all instances are occupied when the Customer submits a request, the Customer may have to wait until sufficient computing capacity is available again. Use of the software for military purposes is forbidden.
- The Provider grants the Customer the non-exclusive, non-transferable, worldwide right to access the software and use it in the manner for which it is intended for the Customer's purposes and for the lifetime of this contract. The Customer shall receive no further rights regarding the software. In particular, the Customer is not entitled to download the software or otherwise duplicate or edit it. The usage fee covers approximately 50 training sessions per month, a maximum of about 5,000 images may be uploaded.
- The Provider does not enter into contracts with consumers as defined in Section 13 BGB (German Civil Code).
Access to the software
- Under the conditions set forth herein, the Provider makes the latest version of the software in each case available to the Customer for the duration of this contract via the Internet. The software is available at the router output point of the server location where the software is hosted ("handover point").
- The Provider is entitled to limit or restrict access to the software for technical reasons at any time; such restriction or limitation shall not constitute a breach of contract. The Provider reserves the right to deny a Customer use of the software at any time for good reason. Such good reasons include for example any attempt to hack the service, manipulate the code or otherwise gain access to the code.
- The software is hosted on third party servers located within the European Union. The Provider makes every effort to offer availability of 99.7% as measured over a calendar year. The Provider will implement all reasonable measures to guarantee high availability of these servers and the software, but is obliged to rely on third parties to this end. Consequently, the Provider cannot be held liable for losses caused by server downtime that (a) was not caused by the Provider, which is essential to (b) maintain the functionality of the software or to (c) install upgrades and updates either by the Provider or by the operator of the servers. The Provider will inform the Customer of such outages at the earliest possible time in each case.
- Access to the software may also be restricted or prevented for reasons other than those governed by Clause 2.3 which are beyond the Provider's control, including for example actions by persons outside the Provider's area of influence, or technical conditions, and force majeure. The Customer's hardware and software may also affect the functionality of the software. If the prerequisites for this Clause 2.4 are satisfied, the Provider shall be deemed to have fulfilled the contract in due form.
- The Customer will inform the Provider immediately at any time of all malfunctions and circumstances preventing use of the software. If it does not, Section 536c BGB shall be applied.
The Provider offers support via a hotline and by e-mail. The hotline can be used by Customers during the Provider's business hours. If necessary to enable troubleshooting and for rendering technical assistance, the Customer may enable the Support department to view and edit the Customer's data by remote control.
Content, data backup, data protection
- The Customer warrants that it has the right to use all of the data and content used and processed with the software in the respective manner, and that the data and content do not infringe the rights of third parties or other rights or legal regulations. The Customer will indemnify the Provider upon first request against all costs and payments arising from claims by third parties in respect of culpable violation of rights associated with the aforementioned data and content. This includes prosecution costs up to the amount of the statutory charges. The Provider will give the Customer the opportunity to defend itself against the claims.
- The Customer may use created network models freely for its own purposes if these have been downloaded. An option to download the fully trained network is available.
- All data assigned to the Customer (e.g., projects, images or trained networks) will be automatically deleted completely and irrevocably not later than four weeks after the expiration of the contract for use. The Provider has no access thereto. The Customer is personally and individually responsible for ensuring the creation of corresponding backups.
- The Provider will only process personal data in accordance with the prevailing data protection law.
Usage fees and method of payment
- The amount of the usage fees is calculated on the basis of the price list that is current when the contract is signed and/or the agreement between the parties.
- Billing will take place monthly in arrears. Unless otherwise agreed, all charges are due for payment immediately upon receipt of the invoice. In the event of late payment, the Provider will calculate interest on arrears at the statutory rate (nine percentage points above the basic rate of interest, Section 288 BGB).
The statutory warranty regulations shall apply. Application of Section 536a Para. 2 BGB is excluded, as is the application of Section 536a Para. 1 to the extent that this regulation stipulates liability without fault.
- The Provider shall be liable according to the statutory regulations (a) in the case of breach of contract by the Provider, its employees of other representatives or vicarious agents, (b) for the absence of an assured property, (c) in the event of culpable injury to life, limb or health, and (d) according to the provisions of the Product Liability Law.
- In the case of simple or ordinary negligence, the Provider shall only be liable for damage arising from breach of an essential contractual obligation. Essential contractual obligations are those which are vital to the proper performance of the contract, the absence of which jeopardizes the achievement of the object of the contract, and the fulfillment of which the contracting partner is entitled to expect ("cardinal obligations"). The abovementioned limitation of liability does not apply in the case of culpable injury to life, limb or health, or if an assured property is not delivered.
- The Provider's liability is further limited to damages which are typically to be anticipated in the context of contracts such as this present. The limitation of liability described in this Clause 7.3. applies in all cases.
- The Provider shall not be liable for indirect damages or consequential damages.
- The Provider shall not be liable for loss of profits.
- The liability of the Provider is limited to the amount of total usage fees for three months' use as set forth in Clause 5.1.
- The Provider shall not be held liable under any other circumstances.
- The Customer is individually responsible for data backup. The Provider shall not be liable for losses arising from a loss of data if the loss would not have occurred had the Customer performed data backup in good order.
- All liability claims against the Provider are time-barred after one year.
Term and termination
- This contract shall enter into force as soon as the Provider releases the IDS NXT lighthouse offering for use by the Customer and the Customer uses the software.
- If the Customer is already a customer of the Provider before signing the contract for use of the software, the contract will run for the agreed term upon signing and will automatically expire at the end of the agreed term. The Customer may then enter into a new contract.
- New customers may purchase a design-in kit with camera and accessories, which ends automatically after a period of six months.
- The right of cancellation for good cause remains unaffected thereby. Good cause is justified in particular if
- The respective other party violates essential obligations in respect of this contract, and such violation is not remedied within 14 days despite a written warning;
- The respective other party has financial difficulties, insolvency proceedings are instituted in respect of its assets, or the insolvency proceedings are denied due to lack of assets;
- For the Provider, if the Customer undergoes a change of control within the meaning of Section 37 Para. 1 No. 2 Competitions Act (GWB).
- Cancellation notifications may be delivered by e-mail.
- If a provision of this contract should be or become invalid, the validity of the other contractual provisions shall be unaffected thereby. The invalid provision will be replaced with the lawful provision which most closely reflects the financial intentions of the parties.
- This contract is governed by German law. The exclusive legal venue for disputes arising from this contract is Stuttgart.