1. Scope and Application
1.1 The following provisions (hereinafter referred to as "TERMS AND CONDITIONS") set forth the general conditions pursuant to which NAIX GmbH (hereinafter referred to as "NAIX") provides goods and services to its contractual partner, which is not a consumer (hereinafter referred to as "CUSTOMER", together with NAIX the "PARTIES"), named in the individual order, order confirmation, order form, web order, statement of work and/or any other document (each an "ORDER") which refer to these TERMS AND CONDITIONS (together the "AGREEMENT").
1.2 The TERMS AND CONDITIONS shall apply exclusively. Any terms and conditions of the CUSTOMER that conflict with, differ from or supplement these terms and conditions will not become an integral part of the contract unless NAIX has expressly consented in writing to their application. For example, consent shall not be deemed to be given even if, in the knowledge of the CUSTOMER'S terms and conditions, NAIX accepts - without any reservations - orders, performs services or directly or indirectly refers to letters, etc., which contain the CUSTOMER'S or third-party terms and conditions.
1.3 Any ORDER shall take precedence over these TERMS AND CONDITIONS.
2. DEFINITIONS
2.1 "AFFILIATES" are any and all companies affiliated with the respective PARTY within the meaning of §§ 15 et seqq. German Stock Corporation Act (AktG).
2.2 "SERVICES" shall mean all services provided by NAIX to CUSTOMER, in particular access via the internet to the SOFTWARE.
2.3 "SUBSCRIPTION PERIOD" shall mean the maximum period for which the CUSTOMER shall be entitled to use the SOFTWARE, and shall be 18 months by default.
3. Software
3.1 The SOFTWARE supports CUSTOMER in anonymizing documents by blackening sections as selected or defined by CUSTOMER (hereinafter "SECRET DATA"). CUSTOMER is aware that the results of the anonymization features of SOFTWARE depend on the quality of the SECRET DATA which CUSTOMER provides to the SOFTWARE. SOFTWARE suggests some additional SECRET DATA, but cannot replace or work without CUSTOMER'S SECRET DATA. Therefore, CUSTOMER acknowledges that CUSTOMER is obliged to review any blackened document produced by SOFTWARE to ensure that CUSTOMER has entered all and any SECRET DATA which CUSTOMER considers necessary, and to ensure that the blackened document is sufficiently anonymized.
3.2 Documents to be blackened are loaded into the SOFTWARE by CUSTOMER. If those documents do not consist of recognized text but of images, the SOFTWARE will undertake to recognize the text (OCR). Since automatic text recognition depends on the quality of the documents, CUSTOMER acknowledges that CUSTOMER shall only load documents into the SOFTWARE which are very well readable and shall verify that the recognized texts correspond to the texts shown in the images. CUSTOMER acknowledges that the SOFTWARE cannot recognize text which is not very well readable, and that the SOFTWARE does not provide any information on the readability of the documents. Text recognition is done on CUSTOMER's own risk.
3.3 The SOFTWARE can be accessed and used via the latest versions of the web browser Google Chrome and Mozilla Firefox.
3.4 The SOFTWARE runs on NAIX' premises and is provided as a software-as-a-service solution via the internet. CUSTOMER needs an own internet connection.
3.5 NAIX may modify the SOFTWARE at any time as long as the modification of the SOFTWARE is reasonable for the CUSTOMER taking into account the interests of NAIX. NAIX shall notify CUSTOMER of any material changes to the SOFTWARE duly in advance.
3.6 The CUSTOMER may not make the SOFTWARE accessible to third parties outside of its organization.
4. Usage rights
4.1 The SOFTWARE is not delivered to CUSTOMER and no rights are granted to receive or use such SOFTWARE, be it as source code or object code. NAIX grants to CUSTOMER a non-transferrable, non-sublicensable right to access the SOFTWARE via internet, limited in time to the SUBSCRIPTION PERIOD and limited in place and manner subject to the following subsection.
4.2 The right to use the SOFTWARE:
(a) is limited to the internal business purposes of the CUSTOMER excluding CUSTOMER'S AFFILIATES, and is determined in detail by the following provisions and the circumstances of the agreement as expressed in the respective ORDER;
(b) may further be limited to a maximum number of documents to be anonymized (hereinafter "MAX DOCUMENT COUNT").
5. Cooperation obligations of CUSTOMER
5.1 The CUSTOMER is obliged not to store or allow to run any illegal content that violates the laws or the rights of third parties on the storage space that may be made available within the SOFTWARE and not to store any programs, scripts, etc. that endanger the operation of the server or the communication network of NAIX or the security and integrity of other data stored on the servers of NAIX.
5.2 The CUSTOMER grants to NAIX all necessary rights to perform the SERVICES, in particular in the documents to be blackened.
5.3 CUSTOMER will not share the access data to access the SOFTWARE with third parties and will use utmost care to securely store such access data. CUSTOMER is aware that NAIX cannot be held liable for any access of a third party related to CUSTOMER having lost the access data.
6. Quality and Warranty
6.1 During the term of the AGREEMENT, NAIX warrants (gewährleistet) that the SOFTWARE substantially has the agreed quality, and that use of the SOFTWARE by the CUSTOMER in the contractually agreed scope does not infringe any third-party rights.
6.2 The quality of the SOFTWARE is determined by the AGREEMENT only. Representations of the SOFTWARE in public statements (particularly advertising) or statements by NAIX employees do not involve indications as to quality, unless explicitly confirmed in writing by the management of NAIX. The same applies for any guarantees given by employees of NAIX before conclusion of the AGREEMENT.
6.3 Minor discrepancies between the SOFTWARE and the agreed quality or any minor impairment of its usefulness do not represent defects. Those shall include minor malfunctions which only have minimal effect on the SOFTWARE and do not or only negligibly disturb the functionality of the SOFTWARE.
6.4 If a defect is caused by or is included in a defective third-party software, including open source software of third parties, CUSTOMER'S rights in case of defects shall be limited to the assignment of its rights - if any - in case of defects against that third party. This shall not apply in case the defect is caused by improper handling of the third party's product for which NAIX is responsible.
6.5 Warranty rights shall be considered waived in case CUSTOMER did not report a defect within one week together with information on its appearance and information on the possibility to reproduce the defect.
6.6 The warranty does not apply in case CUSTOMER exceeds its right of use.
6.7 Claims due to defects are further precluded if the CUSTOMER:
(c) violates its examination and reporting obligations;
(d) makes changes to the SOFTWARE itself or causes or permits changes to be made by third parties that are not permitted according to current standards, unless it can be proven that they are not the cause of the defect; or
(e) otherwise uses or operates the SOFTWARE in an improper or inappropriate manner.
6.8 NAIX provides access to the SOFTWARE with an availability of 98.5% per calendar month. The availability shall be calculated as follows: the time the SOFTWARE is materially available in a calendar month, divided by the time in the respective calendar month from which the actual maintenance periods shall be subtracted. NAIX shall be entitled to conduct maintenance work a) on Tuesdays and Thursdays between 3:00 and 6:00 a.m. in case of regular maintenance work as well as b) at any time in case of emergency maintenance work which is necessary to protect NAIX's or the CUSTOMER's data.
6.9 To the extent not otherwise stipulated in these TERMS AND CONDITIONS, the statutory warranty provisions stated in §§ 535 et seqq. German Civil Code apply to the access to the SOFTWARE.
6.10 Irrespective of anything else stated in this AGREEMENT, in case NAIX provides the SERVICES free of charge, only statutory warranty and liability provisions shall apply to the SERVICES and shall take precedence (§§ 599, 600 German Civil Code). Nothing in the AGREEMENT shall extend NAIX's statutory liability and warranty provisions in that case. In particular, NAIX does not give any express warranty.
7. Term and Termination
7.1 The term of the AGREEMENT is the SUBSCRIPTION PERIOD. It automatically ends once the SOFTWARE has processed MAX DOCUMENT COUNT documents, whatever is earlier.
7.2 The Agreement may only be terminated as a whole.
7.3 The AGREEMENT can be terminated by either PARTY for convenience with a notice period of three months.
7.4 Only in case of a termination for convenience by NAIX, NAIX will proportionally refund the paid compensation to CUSTOMER.
7.5 If the CUSTOMER exceeds the agreed scope of use or otherwise breaches the AGREEMENT, and continues doing so after a reminder by NAIX, NAIX has the right to terminate the agreement for cause without any notice period.
7.6 The right to terminate for cause remains unaffected for the PARTIES.
8. Compensation
8.1 NAIX shall invoice to CUSTOMER the compensation for the respective SERVICES in accordance with the ORDER. Unless otherwise agreed, NAIX will invoice the SERVICES upon agreement of the ORDER.
8.2 All prices are net without applicable value-added tax.
8.3 The compensation is due and payable within 30 days after the date shown on the invoice.
8.4 In the case of default in payment by the CUSTOMER, NAIX may charge interest at a rate of 9 percentage points per annum above the applicable base interest rate, unless NAIX shows greater damage. NAIX's further rights shall remain unaffected thereby.
8.5 While the CUSTOMER is in default with payment, NAIX's obligation to provide SERVICES shall be suspended unless this would be unreasonable, for instance if the outstanding amount is relatively small. 8.6 (a) In the case of default in payment and expiration of a reasonable additional grace period as well as (b) in the event of other justified doubts as to the CUSTOMER'S solvency or creditworthiness, NAIX is entitled to immediately call in all claims arising from the business relationship, without prejudice to other rights of NAIX.
8.7 CUSTOMER is (a) only entitled to set-off if its counterclaim is (aa) undisputed or (bb) legally established or (cc) is reciprocal (synallagmatic) to the claim against which CUSTOMER sets off; (b) only entitled to exercise a right of retention if and to the extent that its counterclaim is either (aa) undisputed, (bb) legally established or (cc) based on the same contractual relationship as the claim CUSTOMER exercises a right of retention against.
9. CUSTOMER cooperation and notification requirements
9.1 CUSTOMER shall provide NAIX with reasonable support in the provision of SERVICES.
9.2 CUSTOMER must take all necessary and reasonable steps to prevent or limit damage caused through use of the SERVICES. This includes regularly backing up data and software that would be at risk in case the SOFTWARE is not functioning correctly or the SERVICES were not provided properly. In particular, documents to be blackened shall be stored securely in a backup before being submitted to SOFTWARE.
9.3 CUSTOMER acknowledges and agrees that the SOFTWARE is a SOFTWARE based on machine learning (artificial intelligence) which means that the SOFTWARE uses any data provided to it, in particular the documents uploaded by CUSTOMER, for training purposes and to improve its performance. The knowledge gained from such training is stored in so-called machine learning models. Typically, no confidential information on individual CUSTOMERS (or, as the case may be, their clients) can be derived from such models.
9.4 CUSTOMER grants to NAIX all necessary rights for NAIX to provide the SERVICES and train the SOFTWARE, in particular all necessary usage and modification rights to anonymize the documents uploaded by CUSTOMER, even if they belong to third-parties (e.g., clients of CUSTOMER).
10. Liability
10.1 In any case of simple negligence NAIX is liable for the breach of a contractual obligation which gives distinction to the AGREEMENT and on which CUSTOMER may rely on (essential obligation) and limited to the typical and foreseeable damage only; this exception does not apply to culpable damage to life, body or health nor in cases of mandatory liability including without limitation liability for cases in which a procurement risk or a guarantee for damages has been assumed, liability under the Product Liability Act, liability under the GDPR, fraudulent concealment of a defect or in the event of default.
10.2 In particular, NAIX shall not be liable for lost profit, lost production, interruption of operations, contractual claims by third parties, loss of use, financing expenses or other financial loss and consequential damages.
10.3 The liability for simple negligence according to section 10.1 shall be further limited to the remuneration under the respective ORDER paid and payable for the respective calendar year in which the damaging event takes place (the cap applies to all damages together which occur in this year or which are based on this damaging event).
10.4 Damage compensation claims against NAIX, its employees or agents fundamentally become time-barred two years after they arise. This shall not apply to damage compensation claims which fall under the second half of section 10.1, sentence 1.
10.5 NAIX cannot be held strictly liable (verschuldensunabhängige Haftung) for a defect which exists when the AGREEMENT is entered into.
10.6 The provisions of this section also apply for the benefit of NAIX's employees, agents and subcontractors to whom duties were transferred.
10.7 To the extent a third party asserts claims against NAIX due to violation of the AGREEMENT by the CUSTOMER, the CUSTOMER will indemnify NAIX and hold it harmless from any and all damages, expenses and costs, including reasonable legal defense costs.
10.8 Irrespective of anything else stated in this AGREEMENT, in case NAIX provides the SERVICES free of charge, section 6.9 applies and NAIX will not be liable for simple negligence.
11. Non-disclosure
11.1 The PARTIES shall keep all sensitive information of the respective other Party and its AFFILIATES received in connection with the ORDER, also precontractually, in oral, written or any other form ("CONFIDENTIAL INFORMATION") confidential and use it only for the agreed purpose.
11.2 The confidentiality obligations under this AGREEMENT include, in particular, the following CONFIDENTIAL INFORMATION: pricing information, login data and passwords, as well as all other information which have been or are designated as confidential by a Party in oral or written form and all documents uploaded into the SOFTWARE by CUSTOMER as well as SECRET DATA.
11.3 The PARTIES are obliged to take all necessary and appropriate measures to avoid the disclosure of CONFIDENTIAL INFORMATION vis-à-vis third parties and/or the perusal of CONFIDENTIAL INFORMATION by third parties. It is only permitted to disclose CONFIDENTIAL INFORMATION to such staff, employees and external advisors of the PARTIES who are directly concerned with the execution of the respective ORDER ("need to know"). In case they are not bound by law to a professional obligation to maintain confidentiality, they have to be obliged in written form to fulfil the confidentiality obligation pursuant to this AGREEMENT - as far as legally permitted also for the time after their resignation. The disclosure of CONFIDENTIAL INFORMATION is further permitted, if and to the extent the Party burdened with the confidentiality obligation ("BURDENED PARTY") is bound by law or administrative order to disclose such CONFIDENTIAL INFORMATION, has informed the other Party in text form about the planned disclosure and has taken measures provided for by law or appropriate to keep the extent of the disclosure to a minimum. Otherwise any disclosure is only permitted with the prior consent in text form of the other Party.
11.4 The confidentiality obligations pursuant to this AGREEMENT are not applicable, if and to the extent the otherwise BURDENED PARTY proves that the information in question:
(a) has been publicly known and made generally available in the public domain prior to the time it came to its knowledge or becomes publicly known at a later point in time and without violation of the obligations resulting from this AGREEMENT,
(b) has already been known to the BURDENED PARTY without violation of any confidentiality obligations,
(c) has been independently developed by the BURDENED PARTY without use or reference to the CONFIDENTIAL INFORMATION,
(d) has been made available to the BURDENED PARTY by a third party who has legally obtained such CONFIDENTIAL INFORMATION and was entitled to disclose it, or
(e) relate to the PARTIES'/AFFILIATES' identities or the material subject matter of the ORDER.
11.5 Upon termination of this AGREEMENT and request of the other Party, the BURDENED PARTY will return to the other Party or delete without delay and at its own costs all CONFIDENTIAL INFORMATION (including all storage mediums and copies made by the BURDENED PARTY or third parties) to the extent this is feasible with reasonable efforts and confirm this to the other Party. The above does not apply if and to the extent the BURDENED PARTY is obliged by law to keep the CONFIDENTIAL INFORMATION.
11.6 The confidentiality obligations pursuant to this AGREEMENT shall continue for five years after the termination of this AGREEMENT.
12. Data protection
12.1 CUSTOMER hereby acknowledges that NAIX processes personal data, including names, telephone numbers, and e-mail addresses, of the CUSTOMER'S personnel/advisors/subcontractor's personnel needed in order to establish, conduct and terminate business relationships. NAIX may also transfer such data to NAIX AFFILIATES, subcontractors, sales partners and other persons engaged by NAIX for those business relationships. Such data will be deleted if not required any more, unless a storage for a longer period of time is required by law. NAIX is engaging service providers for the processing of personal data. CUSTOMER's concerned personnel has the right to information, rectification, deletion, object, transferability of data, restriction of processing and complaint to the supervisory authority, as applicable under the GDPR. For any further information on what personal data NAIX processes and for what purpose NAIX processes such data, please contact NAIX or NAIX's data protection officer or refer to NAIX's privacy policy available under https://naix.de/en/privacy-policy. CUSTOMER shall inform its personnel concerned about such processing of their personal data and provide them with NAIX's privacy policy.
12.2 The data processing agreement attached hereto as Schedule 1 shall apply to all documents uploaded into the SOFTWARE by CUSTOMER as well as SECRET DATA, and shall prevail over these TERMS AND CONDITIONS. It shall not apply to any machine learning models in terms of section 9.3.
13. Support services
13.1 If agreed in an ORDER, NAIX will support the CUSTOMER via e-mail on request in connection with using the latest version of the SOFTWARE. Outside of German legal holidays in NAIX's registered office as well as Saturdays and Sundays, NAIX shall answer queries within two business days. NAIX shall answer queries to the CUSTOMER's satisfaction according to the standards of due care and diligence. NAIX assumes no responsibility for the ultimate success of problem correction according to sec. 631 ff. BGB but provides support services only according to sec. 611 ff. BGB.
13.2 The support services do not include, inter alia:
14. Miscellaneous
14.1 Deletions, changes or amendments to the AGREEMENT must be executed in writing in order to be valid; this also applies to any amendment to this written form clause.
14.2 All notices and other communications in connection with this AGREEMENT shall be made in text form, unless otherwise stipulated. Termination notices must be signed and delivered via mail.
14.3 NAIX reserves the right to amend or supplement the TERMS AND CONDITIONS at any time, provided that the CUSTOMER is not disadvantaged in good faith by such amendment or supplement. Amendments or supplements to the TERMS AND CONDITIONS will be announced by notification in text form. They are deemed approved if the CUSTOMER does not object in writing within two months upon such notification being submitted by NAIX. NAIX shall specifically point out this consequence in the notification.
14.4 The use of fax or e-mail, in the latter case with an attached scanned and signed document, shall suffice to fulfil the written form requirements within the meaning of the AGREEMENT, but simple e-mail shall not suffice.
14.5 Should individual provisions of the AGREEMENT be or become invalid or unfeasible in whole or in part, the validity of the remaining provisions of this AGREEMENT shall not be affected thereby. The PARTIES will promptly replace the invalid or unfeasible provision with one that most closely approximates the legal and economic purpose of the invalid or unfeasible provision. Until that time such a provision shall be considered to be agreed. The preceding applies accordingly for closing any lacunae in the AGREEMENT.
14.6 This AGREEMENT and its interpretation and any non-contractual obligations in connection with it are subject to German laws. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
14.7 Place of performance is Köln, Germany. In case of any disputes arising from or in connection with contractual relationships between the PARTIES, the courts of Köln, Germany, shall have exclusive jurisdiction. The foregoing shall not limit the right of NAIX to initiative proceedings against the CUSTOMER at its place of jurisdiction.
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