General Terms of Use of Ideabay GmbH (T&C)

Version 1.4, status November 11, 2017

 

These General Terms of Use are provided in English for your convenience. Please note that in case of a dispute or discrepancy between the German Terms of Use and the English translation, the German version shall prevail.

  1. Validity of the T&C | Subject Matter of the Agreement
    • The Ideabay GmbH, Agnes-Pockels-Bogen 1, 80992 Munich, Germany, (hereinafter referred to as “Provider“) operates with ZelaFlow a B2B-online-service, by way of which commercially acting Customers may provide Voice Applications (as defined below) for voice assistant services such as Alexa by Amazon. The online service enables Customers, inter alia, to independently adapt the content of their own Voice Applications.
    • These general terms and conditions (hereinafter referred to as “T&C“) apply to all Contractual Services, e.g. web-based functionalities, applications, and services, provided to the Customer on the Platform by the Provider.
    • All arrangements made between the Provider and the Customer are reflected only in the written agreements, in particular (i) the Order Form, (ii) these T&C and (iii) performance specification, whereby a document with a lower number takes precedence over a document with a higher number (any and all written agreements as well as these T&C hereinafter jointly referred to as “Contract“).
    • These T&C apply exclusively. Terms of the Customer that are contrary or deviating from these T&C do not become a component of this Contract even if the Provider has knowledge of such, unless the Provider has expressly consented in writing to their applicability.
    • The Provider is authorized to modify and adjust these T&C during the term of the Contract with effect for the future if this should be required for compelling reasons, e.g. compelling operational reasons, amendments to laws or legislature, or if exclusively new Services of the Provider are introduced (e.g. the expansion of the offer by the provision of other Services). The Provider shall transmit the modified terms to the Customer in written form prior to the planned coming into force with special emphasis on the revisions as well as the date of coming into force. Simultaneously, the Provider shall grant to the Customer a reasonable deadline of at least four (4) weeks to declare whether it accepts the modified terms of use for the further availment of Services. If a declaration is not issued within this deadline, which commences as of receipt of the message in written form, the modified terms are deemed to be agreed upon. The Provider shall inform the Customer, at the beginning of the grace period, separately of this legal consequence, i.e. the right to object, the objection period, and the significance of a failure to respond. This modification mechanism does not apply to modifications of principal contractual obligations of the parties (with the exception of pure expansions of the Provider’s Contractual Services).
    • The subject matter of the Contract is the permission to use the Services via a remote data connection against payment of the contractual remuneration. When selecting the service packages Basic, Professional or Enterprise, these Services also include the provision of storage space on servers controlled by the Provider and limited to the volume stated in the Order Form, on which the Customer’s data created and processed within the scope of the Software applications shall be stored for the duration of the term specified in the Order Form.
    • Use of the Services does not include provision of the Software for local installation on the Customer’s IT systems. Any and all rights to the parts of the Platform used on the Provider’s side (in particular hardware, source code, etc.) remain solely with the Provider. The Contractual Services may contain components that are subject to open source software licenses. Separate provisions may possibly apply in this regard.

 

  1. Definitions
    • Work Products” shall mean all Voice Applications, works, creations, developments and other performances and results provided, developed and/or created by the Customer during the term of the Contract, provided that they have been developed, created and/or provided in the context of the contractual use of the Platform and/or Services.
    • Force majeure” is an event which is not foreseeable for either party. Force Majeure exists in this context in particular in case of (i) fire, explosions, or other accidents; (ii) storm, earthquake, tornadoes, flood, volcanic eruptions, or other natural catastrophes; (iii) war, threat of war, terrorism, uprisings, and other unrest; (iv) epidemics, pandemics, quarantine restrictions, or other restrictions based on public health measures; (v) strike or other industrial actions of the parties or their suppliers or respectively their employees, or (vi) sanctions or embargoes.
    • Customer” is the company listed in the online order form (hereinafter referred to as “Order Form“).
    • Platform” is the totality of the systems, infrastructure, contents and information of the Provider or the Customer, including the standard Platform product, consisting of the access to the websites and Software of the Provider, the possibilities to provide Voice Applications by the Customer, the provision of Voice Applications, the hosting of Voice Applications and websites, the assistance and support for the release and distribution of Voice Applications, the technical support and related services as set out in the Order Form, these T&C and the respective performance specification.
    • Industrial Property Rights” by means of this Contract are all rights to the Work Products, including any copyrights and usage rights, designs, utility models, trademarks and other marks, databases, know-how and any other intellectual and industrial property rights.
    • Voice Application” shall mean each by or for the Provider or by the Customer created application for the distribution in voice assistant services such as Alexa by Amazon or Google Home.
    • Software” shall mean the voice management system ZelaFlow and the underlying software.
    • Contractual Services” or “Services” are the service packages Basic, Professional or Enterprise with the components respectively contained therein and/or the hosting and/or the content management services for Voice Applications. The precise service content of the respective packages is conclusively stipulated in the respective applicable version of the performance specification and SLAs available on the Provider’s website at https://www.zelaflow.com/pricing.

 

  1. Conclusion of contract
    • All offers of the Provider are nonbinding and subject to change.
    • By filling out and sending the registration page and the selection of the respective service package (except for beta versions that do not allow a selection of service packages), the Customer bindingly declares its contractual offer vis-à-vis the Provider.
    • The Contract is concluded upon receipt of the Provider’s order confirmation, at the latest upon provision of the Contractual Services by the Provider.
  2. Provision of Contractual Services
    • The Provider shall provide to the Customer the use of the Services to the extent described in the performance specification as well as the availabilities listed there. Measurement point for availability is the Service transfer point (as defined in the performance specification). The Customer recognizes that a completely interruption-free availability of the Platform and Services is not technically possible, in particular as this depends on factors that are not within the scope of influence of the Provider.
    • To the extent that Provider – according to the Order Form – shall publish Voice Applications via its own account of the respective store of a voice assistant service for the Customer, the Customer acknowledges and agrees that the respective provider of voice assistant services reserve the right to decline the release of Voice Applications, so that Provider is only obligated in this respect to use commercially reasonable efforts under compliance of the respective terms and conditions of the respective store.
    • The Provider reserves the right, while ensuring the legitimate interests of the Customer and in compliance with an announcement period of three (3) weeks, to modify, expand, or discontinue individual Services, in particular if such is required in order to prevent misuse or if the Provider is obligated to do so based on statutory provisions. If the contractual use of the Contractual Services by the Customer is restricted not merely insignificantly based on this, then the Customer is authorized to request price adjustment or to terminate the Contract. The Provider is authorized to improve, expand, or adjust the Contractual Services to state of technology without compliance with an announcement period insofar as the identity of the Service is preserved.
  3. Granting of utilization rights
    • Subject to complete and unconditional payment of the due and payable remuneration, the Customer reserves the nonexclusive, global, limited in terms of time to the term of the Contract, not sublicensable, nontransferable right to use the Platform, Voice Applications and Services of the Provider via the Internet to the extent granted in the Contract solely for business purposes of the Customer. The Provider expressly does not grant to the Customer any rights in excess of such, in particular rights to the Software.
    • The Customer is not authorized to use the Platform, Voice Applications or Services of the Provider beyond the measures of this Contract or to make such accessible to third parties. In particular, the Customer is not authorized to reproduce and/or dispose of the Software or parts thereof free of charge or against remuneration or to transmit such to third parties in any other form, to allow use or perusal to third parties, or to use the Software for a third party, in particular to not lease or rent such. The utilization right is void upon cancellation of the Contract for any reason whatsoever.
    • In the event of an unauthorized surrender of use, the Customer, at the Provider’s request, must immediately inform the Provider of all information concerning assertion of claims against the unauthorized using third party, in particular name and address of such.
    • The Customer hereby transfers and assigns to the Provider all Industrial Property Rights to any Work Products. The Provider accepts the transfer of rights.
    • To the extent that a full transfer of the Industrial Property Rights is not valid due to copyright reasons, the Customer hereby grants to the Provider the exclusive, temporally and spatially unlimited, sub-licensable and transferable rights of use for the purpose of a comprehensive exploitation of the Work Products. The Provider hereby accepts the granting of the rights to use.
    • The above assignment of rights and/or granting of the rights of use includes in particular but not limited to the right of the Provider to make edits, to reproduce, distribute, rent, make publicly available, to broadcast as well as to reproduce non-publicly and publicly the Work Products in original or edited on any medium or other technical device in a digital or analogue manner. The assignment of rights and/or granting of the rights of use also includes the right to use the Work Products interactively by electronic means (Internet, proprietary online services, etc.) and in all currently known transmission paths such as cable, satellite, radio transmission systems of all kinds and in all standards. It also includes the right to use the Work Products for internal testing purposes of the Platform.
    • The above assignment of rights and/or granting of the rights of use relates to the Work Products at all stages of development, including any design and documentation material. To the extent that the Customer provides software developments, the above assignment of rights and/or granting of the rights relates to the respective versions of the object and the source code as well as the documentation and description of both codes in all forms.
    • The complete or partial exercise of the rights transferred and/or granted above requires no further approval by the Customer. An obligation of the Provider to exercise, register or exploit the aforementioned rights shall not exist.
    • The Customer undertakes to carry out all actions required for the assignment and/or granting of the above mentioned rights and to make all necessary declarations therefore.
    • The assignment of rights and/or granting of the rights of use in Sections 5.4 to 5.9 shall be deemed free of charge. Any compensation in accordance with mandatory statutory provisions remains unaffected.
  4. Customer’s utilization requirements
    • The use of the Platform and Services requires the existence of the system requirements listed in the performance specification as well as Internet access with a bandwidth of at least one (1) Mbit/s at the Customer.
    • The Provider does not provide access software to the Customer. Suitable access software are the following Internet browsers in the respective current version: Firefox, Safari, Google Chrome. The Customer is itself responsible for installation and procurement of the access software.
    • The provision of these requirements as well as Internet access to include transmission services as of the Service transfer point (as defined in the performance specification) to the devices used by the Customer are not a subject matter of this Contract but are incumbent upon the Customer.
    • In so far as access data is required for use of the Software and Services (username, password, etc.), the Provider shall inform the Customer of such upon conclusion of the Contract, however, no later than one week after conclusion of the Contract pursuant to the specifications of the performance specification.
  5. Customer’s participation

The parties agree that the provision of Contractual Services depends to a significant extent on the efficient and successful cooperation of the parties. In light of this, the Customer shall, among other things, fulfill the following obligations to cooperate at no cost for the Provider. In particular, the Customer shall

  • keep the access data as well as possibly other specified identification and authentication protections allocated to the Customer secret, protect such against access by third parties, and not transmit such to unauthorized third parties. This data must be protected by suitable and common measures. The Customer shall immediately inform the Provider if there is suspicion that the access data and/or passwords may have become known to unauthorized persons;
  • create the utilization requirements listed in Section 6 as well as others possibly listed in the performance specification;
  • comply with the restrictions and obligations concerning utilization rights pursuant to Section 5;
  • ensure that all intellectual property rights and all terms and conditions of the respective voice assistant service are observed within the scope of the utilization of the Platform (e.g. in the transmission of Voice Applications, other content, text and data of third parties to the Provider’s servers) even in the event of a release via an account owned or controlled by Customer;
  • not improperly use the Services or have such used improperly, in particular not transmit Voice Applications or other information containing immoral or illegal content or make reference to such information that promotes sedition, induces criminal offenses, glorifies or trivializes violence, is sexually offensive or pornographic, or suitable to morally endanger children or young adults or interfere with their well-being, or may harm the reputation of the Provider or third parties.
  • refrain from attempting to itself retrieve, without authorization, Voice Applications, information or other data or have such attempted by unauthorized third parties, or refrain from interfering with the Platform or to have such attempted, or refrain from entering the Provider’s data networks without authorization;
  • indemnify the Provider and its vicarious agents from any third-party claims (including costs of necessary legal defense) that are based on an unlawful use of the Services by the Customer or occurred with its consent or that arise in particular from disputes under data protection laws, copyright laws, or other legal disputes associated with the use of Services. If the Customer recognizes or should recognize that such a violation is imminent, the Customer is obligated to immediately inform the Provider.
  • In the event of violations against the Customer’s contractual obligation as well as justified suspicion of a corresponding breach of duty that are not ceased despite warning, the Provider is authorized to block the Customer’s access to these Services for the duration of the breach of obligations, without hereby waiving the Provider’s claim to compensation.
  1. Remuneration and payment terms
    • Remuneration for availment of the Contractual Services follows from the Provider’s pricelist applicable at the time of conclusion of the Contract. This is published at the Provider’s website in the respective most updated version. Remuneration upon conclusion of the Contract simultaneously arises from the information in the Customer’s Order Form, whereby information in the Order Form shall prevail.
    • The Provider is authorized to send invoices to the Customer by email or respectively to make such available to the Customer online. In the event that the Customer requests a dispatch of the invoice by postal mail, the Provider is authorized to charge processing fees and postage costs pursuant to the respective valid pricelist.
    • Remuneration shall be due and payable by the Customer in advance upon conclusive confirmation of the order and can be paid by the Customer through the payment service provider Stripe utilized by the Provider (which terms and conditions are available at https://stripe.com/payment-terms/legal ). Objections against invoices vis-à-vis the Provider must be in writing. The invoices are deemed to be approved by the Customer if an objection is not submitted within three (3) weeks after receipt of the invoice.
    • The Customer is not entitled to availment of specific payment options not already offered by the Provider. In the event that, due to later cancellation of debit entries or credit card debits, the Provider incurs reverse debits and/or cancellation fees for which the Customer is at fault or due to a lack of funds that is within the scope of responsibility of the Customer, the Customer shall bear the costs incurred in this regard.
    • In case of default, the Provider is authorized to block access to the Platform and the Services until all receivables from the business relationship with the Customer, regardless of the legal grounds, have been settled by the Customer.
    • The Customer is authorized to offset or retain only undisputed, legally ascertained claims of the Provider or claims in a synallagmatic relationship specifically with the respective affected claim of the Provider.
  2. Claims in case of defects
    • The Provider assures that the Contractual Services are free from defects that would nullify or reduce the value or suitability for ordinary use or use assumed in the respective applicable version of the performance specification. An insignificant reduction of the value or suitability shall not be taken into consideration.
    • The Customer is aware that pursuant to state of technology it is not possible to provide software programs that are completely free of errors.
    • The Customer is obligated to immediately inform the Provider in writing of defects and report such no later than within seven (7) days.
    • The Customer is obligated to provide to the Provider all necessary information, documents, or data for the analysis and removal of defects and in exceptional cases to allow and permit access to the Customer’s servers, if required.
    • The Provider shall rectify defects by way of repair or subsequent delivery. If such is ultimately unsuccessful or impossible, the Customer is authorized to demand reduction or to withdraw from the Contract. Rectification of defects by the Customer or third parties commissioned by it is excluded. The Customer is authorized to assert compensation for damages only within the scope of Section 10.
    • The guarantee is void insofar as the Customer itself or by third parties modifies software programs without the Provider’s approval unless the Customer verifies that the respective defects were not caused by the program modification performed by it or the third party.
    • The Provider shall not assume any warranty for the Customer free of charge test and/or beta versions of the Platform and/or other applications.
  3. Provider’s liability

The Provider is exclusively liable as follows:

  • The Provider shall be liable without limitation for damages based on willful or grossly negligent actions, culpable violation of body, life, and/or health, the violation of an assurance expressly designated as “warranty”, and in the event of compulsory statutory liability pursuant to the German Product Liability Act (“Produkhaftungsgesetz”).
  • In cases other than the ones described in Section 10.1, the Provider’s liability for the slightly negligent violation of a material contractual obligation, the fulfillment of which is necessary to achieve the contractual purpose and on the fulfillment of which the Customer can generally rely on (“major obligation”) is limited to the damages that are foreseeable and typical for such contracts at the time of conclusion of the Contract. The same applies for lost profits and lost savings.
  • Liability of the Provider for foreseeable damages typical for such Contracts is limited per damage event to the remuneration paid by the Customer during the Contract term and to a maximum amount of EUR 5.000.000,- which equals the sum insured by Provider’s business liability insurance.
  • In all other cases, the Provider is not liable for slight negligence.
  • The Provider’s liability for compensation for damages regardless of fault (Sec. 536 a German Civil Code [BGB]) for defects existing upon conclusion of the Contract is excluded. Sections 10.1 through 10.4 remain unaffected.
  • The Provider does not accept any guarantee as regards for Voice Applications or other content available through the Platform, insofar as such Voice Applications or other content was uploaded by Customer, other Users, or other third parties, in particular because advance monitoring of content is not possible and can naturally not be offered by the Provider. The Provider is not liable for the accuracy, topicality, or respectively completeness of such, or for the fact that they are free from third party rights and/or the Customer has legally acquired such.
  • The Customer is responsible for periodic backup of its data at reasonable intervals. In the event that the Provider is liable for data loss, this liability is limited to the amount that would be required to recover the data if such reasonable, periodic backup had occurred.
  • The Provider’s liability for data losses, interrupted data transmissions, or other problems arising in this regard that are caused by technical failures and are not within the scope of influence of the Provider (e.g. malfunctions of the transmission pathways of the telecommunication service providers or the Internet) is excluded.
  • The Provider is not liable for malfunctions of quality and/or interruptions of access based on Force Majeure or based on events that are not within the scope of responsibility of the Provider, in particular the loss of communication networks and gateways. Unless stipulated otherwise in the respective applicable version of performance specification, the Provider does not accept any responsibility for an uninterrupted and error-free functionality of the offer.
  • The above liability regulations of Sections 10.1 through 10.9 also apply to the benefit of all bodies, employees, representatives, and/or vicarious agents of the Provider.
  1. Customer’s liability
    • The Customer indemnifies the Provider upon first request from all claims asserted by other Users or other third parties against the Provider for violation of their rights based on Voice Applications, offers, other content, or links placed by the Customer or for any other use of the Platform by the Customer, unless the Customer is not responsible for the violation. This indemnity applies in particular to the violation of protective rights under competition, copyright, trademark, labeling, patent, name and/or other rights.
    • This indemnification obligation applies in particular in cases in which the Customer violates its obligations stipulated in Section 7 of these T&C. The indemnification obligation stipulated above also applies if the Provider is held liable by official authorities, prosecution authorities, and other public entities based on Voice Applications or other contents placed on the Platform by the Customer in violation of the regulations of these T&C or in violation of the terms and conditions of the respective voice assistant service (for example Alexa Voice Service Terms and Agreements by Amazon). The Customer is furthermore obligated to reimburse to the Provider all expenditures necessary and incurred by the Provider in connection with third parties’ proceeding against the Provider based on the violation of their rights by Voice Applications or other contents placed by the Customer. This includes in particular the necessary cost of reasonable legal defense.
    • If the Provider is held liable by third parties based on a possible violation of their rights by the Voice Applications or other contents placed by the Customer, the Customer shall support the Provider to the best of its abilities in the defense against the claims asserted by the third parties. This includes in particular that the Customer provides to the Provider, upon corresponding written request by the Provider, copies of all documents available to the Customer with regard to the allegedly violating contents.
  2. Data protection and data safety
    • The parties shall observe the respective applicable provisions under data protection law, specifically the provisions applicable in Germany.
    • In the event that the Customer collects, processes, or utilizes personal data, the Customer is liable for the fact that it is authorized to do so pursuant to the applicable provisions, in particular provisions under data protection law and, in the event of a violation, shall indemnify the Provider from third party claims. Insofar and to the extent that the Provider owes collection, processing or utilization of personal data on behalf of the Customer based on the Contract, or – e.g by way of remote access to Customer systems – is able to access the Customer’s personal data, the parties shall conclude an agreement for contract data processing (“Vereinbarung zur Auftragsdatenverarbeitung”) pursuant to Sec. 11 German Data Protection Act (BDSG), on the basis of a template of which is to be supplied by the Provider.

 

  1. Confidentiality
    • The parties are obligated to keep all documents, knowledge, experience and information regarding products, Services, know-how and technology which become known or are transferred to the respective other party within the scope of execution of this Contract (hereinafter referred to as “Confidential Information”) confidential vis-à-vis third parties.
    • The obligation to maintain confidentiality pursuant to above Section 13.1 does not apply to information if and insofar as (i) such were already legally in their possession prior to disclosure and without obligation to maintain confidentiality, (ii) such were published without their assistance or otherwise became publicly known without their fault, (iii) such were legally transmitted to it after conclusion of the Contract by one or several third parties not subject to confidentiality obligations, i.e. without a breach of this Contract by the receiving party; (iv) such are released in writing by the disclosing part, (v) such were made accessible to a third party without corresponding obligations and restrictions of the disclosing party, or (vi) such must be disclosed pursuant to statutory or official requirements if such requirement is immediately reported to the disclosing contractual party and the scope of the disclosure is restricted insofar as possible, or must be disclosed based on a court order if the disclosing contractual party is immediately informed of this ruling and if an opportunity for contesting the ruling does not exist.
    • The parties shall utilize this information exclusively for the purpose of fulfilling the obligations pursuant to this Contract. The parties are obligated to suitably obligate their employees and other persons participating in this Contract and its processing to comply with this confidentiality obligation.
    • The Customer is authorized to use the name, logo, and trademarks of the Provider for its own marketing purposes only after prior written release by the Provider.
    • The confidentiality regulations pursuant to this Section 13 shall continue to apply for a term of two (2) years after cancellation of the Contract.

 

  1. Engagement of subcontractors

The Provider is authorized to have individual or the totality of its service obligations provided with the assistance of third parties (e.g. subcontractors). The Provider shall be liable for the provision of services of subcontractors as for its own actions.

  1. Contract term and termination
    • Insofar as not expressly agreed upon otherwise, the Contract term commences on the date listed in the order confirmation of the Provider as contract start date. The minimum term of the Contract is one (1) month. The existing Contract automatically extends by another one (1) month insofar as it is not terminated with a notice period of two (2) weeks prior to expiration of the basic term or the respective extension period.
    • The right to extraordinary termination for good cause remains unaffected. The statutory provisions apply in this regard. A sale of individual business areas of the Provider or a change of shareholders does not give rise to a special termination right of the Customer. Good cause exists for the Provider in particular if (i) the Customer defaults in payment of invoices for two consecutive months or a not insignificant part of the remuneration or (ii) for a period that extends over more than two months with payment of the remuneration with an amount that equals remuneration for two (2) months and/or (iii) if the Customer violates its obligations arising from Section 6 even after warning.
    • Any termination must at a minimum be in text form („Textform“).
  2. Obligations upon and after cancellation of the Contract.
    • The Provider shall, at the Customer’s requests, make all data stored by the Customer available to the Customer by way of data remote transfer or for download.
    • The Customer’s data shall be immediately blocked after coming into force of the termination and full payment of all outstanding payment obligations, and shall be deleted after expiration of the common statutory retention periods. The Provider does not accept responsibility for deleting the Customer’s data immediately at the end of the Contract. The Customer is authorized to request deletion (or respectively blocking if statutory retention rights exist) of the data within a reasonable deadline.
  3. Force Majeure

In the event that provision of contractual obligations is obstructed based on a Force Majeure event, the affected party is released from the duty to fulfill the affected obligations for the duration of the Force Majeure event. The affected party must immediately inform the other party in writing of the circumstances that resulted in the occurrence of Force Majeure. The Customer is exempt from its payment obligations for as long as the Provider is obstructed from providing the Contractual Services due to Force Majeure.

  1. Statute of limitations

The Customer’s claims for defects expire within twelve months after provision of the Contractual Service, unless the Provider has fraudulently concealed the defect in title; the statutory statute of limitations for claims for compensation for damages of the Customer remains unaffected.

  1. Choice of law, venue, closing provisions
    • The law of the Federal Republic of Germany applies, to the exclusion of the UN Convention on the International Sale of Goods (CISG) and the provisions of private international law.
    • Venue for any and all disputes arising from or in connection with this contractual relationship is Munich (Regional Court or District Court), Germany, subject to other compulsory statutory venues. The Provider reserves the right to file actions before other statutory competent courts. Arbitration proceedings are not stipulated.
    • Ancillary provisions outside of this Contract and its appendixes do not exist. Amendments or modifications of this Contract require the written form to be valid. The same applies for a waiver of the requirement of written form.
    • In the event that individual provisions of these T&C should be invalid, this does not affect the validity of the remaining provisions of this Contract.

Munich, November 11, 2017

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