Terms and Conditions ENLYZE
As of June 2, 2022
Preamble
The ENLYZE GmbH (hereinafter "Contractor") has developed a solution for monitoring the machine condition and for forecasting and optimizing the product quality. The solution consists of one or more hardware component(s) (hereinafter "hardware") and the ENLYZE SaaS platform (hereinafter "software"). These General Terms and Conditions ("GTC") apply to the use of the hardware and software (hereinafter "ENLYZE platform") and the provision of additional services ("Services").
Rights of use and ownership
2.1
The contractor grants the customer the paid, worldwide, non-exclusive and non-transferable right to use the software in accordance with the provisions in the contract/order form for the duration of the contract. The software is made available to the customer in its current version/release. The software is not transferred to the customer. The customer does not acquire any rights to the object and/or source code of the software.
2.2
The contractor provides the client with one or more hardware components for the duration of the contract. The hardware component(s) always remain the property of the contractor. Upon termination of the contract, the client must return the hardware components to the contractor at their own expense and at their own risk. If a return does not take place within 30 days of contract termination, the contractor is entitled to invoice the hardware components in accordance with their current standard price list.
2.3
The client may only use the ENLYZE platform within the scope of the contractual provisions. The client may only use the ENLYZE platform for its own purposes. Use for its own purposes includes the intended use for the client's general business purposes and the processing of the client's data. It does not include use for third parties, for example as a service provider or any other transfer or provision of use to third parties.
2.4
The client is entitled to use the ENLYZE platform for its own purposes through its own employees or through third parties. The client is responsible for the use of the ENLYZE platform by its users and any damages caused by negligent or intentional breaches of duty by its users.
2.5
Unless otherwise agreed, all rights to the ENLYZE platform and to the services provided or developed under this contract by the contractor belong solely to the contractor. All rights to any kind of modification, development, or improvement of the ENLYZE platform or the services made by the client also belong exclusively to the contractor.
2.6
The software may contain open source software components. The use of these components is subject exclusively to the corresponding terms of use of the open source software components, which are transmitted and/or referenced within the open source software components framework. No provision of these terms and conditions affects the rights or obligations of the client under the corresponding terms of use of the open source software components. In the event of contradictions or conflicting provisions of open source software license terms and the provisions of these terms and conditions, the open source software license terms shall prevail.
2.7
The right to use the software extends to fixes, patches, developments, and updates provided by the contractor to the client. The right to updates does not include the right to use new/additional products and functionalities provided as a separate product/module.
2.8
The contractor provides the software and a detailed documentation of the software in electronic form.
2.9
Unless otherwise agreed or required by compelling legal or applicable open source software use conditions, the client is not entitled,
a) to copy the software beyond the extent required for contractual use, neither in whole nor in part;
b) to modify, correct, adapt, translate, improve or otherwise make derivative developments to the software;
c) to rent, to lend, to sell, to license, to transfer or otherwise make accessible to third parties the ENLYZE platform;
d) to reverse engineer, decompile, disassemble, or otherwise attempt to decrypt the source code of the software, in whole or in part;
e) Security features or protection mechanisms contained in the software or used for it, to circumvent or violate;
f) To take measures that are suitable to cause damage to the ENLYZE platform or the servers of the contractor;
g) To remove, delete, erase, alter, conceal, translate, combine, supplement, or otherwise modify any trademarks, documentation, warranties, disclaimers, or other rights, such as intellectual property, signs, notices, markings, or serial numbers, associated with the ENLYZE platform or documentation;
h) to use the ENLYZE platform in a way that violates applicable law and/or the rights of third parties;
i) to use the ENLYZE platform for the purposes of benchmarking or competitive analysis, for the development, use, or provision of a competing product or competing services, or for any other purpose that is detrimental to the contractor; and/or
j) to use the ENLYZE platform for or in connection with the planning, design, maintenance, operation, or use of hazardous environments, systems, or applications or other safety-critical applications, or otherwise to deploy the ENLYZE platform in a manner where its use could result in bodily injury or serious property damage.
3. Service provision
3.1
For the use of the software, the client needs a current standard web browser. The client is responsible for providing and operating the required operating software, the network connections for the hardware defined in the order form and/or documentation, as well as for the secure and fast connection of the hardware and the software via the Internet.
3.2
Setup/installation and configuration of the ENLYZE platform will be provided as agreed in the respective individual order. The ENLYZE platform and other work results are considered transferred as soon as they have been made available to the client. Services are considered provided once the respective service has been completed. Support/maintenance are considered to be provided proportionally on a monthly basis if necessary.
3.3
Unless otherwise agreed, the ENLYZE platform and services are not subject to separate acceptance by the client, but are deemed accepted upon handover. If acceptance has been contractually agreed and the client has not adhered to the timing or testing schedule of the acceptance, or if such a testing schedule or time limit for testing and acceptance is not available, then the ENLYZE platform and services shall be deemed accepted ten working days after handover.
3.4
Based on the collected machine data and, if applicable, the data collected from a client's ERP system and/or other sources, the ENLYZE platform generates various evaluations, such as KPIs, reports, analyses, and recommendations (hereinafter referred to as "Reports"). The accuracy and quality of these Reports depend on various factors, in particular the quality and quantity/completeness of the collected machine data or the data collected from a client's ERP system and/or other sources. As a result, the Reports are non-binding, and the contractor assumes no consultancy liability or other liability for the Reports. The client should not make decisions or significant arrangements based solely on the Reports.
3.5
The contractor is authorized to use subcontractors or other agents (collectively referred to as 'subcontractors') to fulfill the contractual obligations. The contractor will ensure that subcontractors are bound by obligations regarding confidentiality and data protection in accordance with these T&C. The engagement of subcontractors does not affect the contractor's contractual obligations to the client. The contractor is liable for any poor performance by a subcontractor as well as for their own culpability.
Client's obligationss
4.1
The client shall support the contractor to a reasonable extent in the provision of the contractually agreed services. The client shall provide in advance, without request, all support services, information, data, files, materials necessary for the contractor to fulfill the contractual obligations. If the client does not cooperate sufficiently and/or causes delays, the contractor is not obligated to fulfill the contractual obligations as long and to the extent that the contractor is hindered in fulfilling the contractual obligations due to inadequate and/or delayed cooperation from the client. The contractor shall inform the client of their inadequate or untimely cooperation and set a reasonable deadline for subsequent performance. If the client still does not fulfill their cooperation obligations, any resulting unavoidable compensation increases, additional expenses (e.g., overtime, cancellation costs, travel expenses), and scheduling changes shall be borne by the client. Upon fruitless expiration of the deadline, the affected software or service is deemed to have been provided or rendered.
4.2
The client is responsible for (i) adequate security processes, tools and controls for systems and networks interacting with the ENLYZE platform, (ii) determining whether the technical and organizational privacy and data security measures provided by the contractor meet the specific requirements of the client; (iii) adequate internal user training and provision of internal technical support for the use and operation of the ENLYZE platform; and (iv) proper safeguarding of data and work results transmitted to the software or created with the software, especially the data from its ERP system from the beginning of software usage and subsequently at appropriate regular intervals.
Dienstleistungen
5.1
Unless otherwise agreed in the order form, services commissioned by the client to the contractor will be invoiced on a time and material basis at the end of the calendar month in which they are provided. Invoicing will be based on the contractor's timesheets. Unless otherwise agreed, reasonable travel expenses will be borne by the client on a time and material basis and invoiced monthly against receipts.
5.2
As far as employees of the contractor are present in the premises of the client, they will comply with the client's safety instructions. For this purpose, the client is to provide these instructions to the contractor in written form in advance.
5.3
The contractor reserves all rights to work results created in the provision of services, especially to software/code, interfaces, methods, processes, and templates used, created, or modified by the contractor ("custom developments"). The contractor grants the client a non-exclusive, non-transferable right of use for their own purposes in accordance with sections 2.1 and 2.2 of these terms and conditions. If the contractor creates data analyses and specific reports, KPIs, analyses, and recommendations (hereinafter "reports") in the course of their services on behalf of the client, they grant the client an exclusive right of use for the reports, but not for the methods and analysis algorithms used for this purpose.
5.4
Work results created by the contractor in the course of providing services to the client, especially customizing/modifying the software or hardware, are not covered by the contractor's standard support, unless these work results are incorporated into the standard software. Such work results can generally only be used with the version/release of the software that was current at the time of their creation. Each upgrade or update may require additional paid migration services.
Service Level
6.1 Unterstützung
Support includes supporting and advising the client in resolving issues with the use of the ENLYZE platform, including reviewing, diagnosing, and correcting significant deficiencies and errors in the ENLYZE platform, as well as providing bug fixes, corrections, modifications, changes, enhancements, upgrades, and new versions of the software (updates) to ensure the functionality of the ENLYZE platform.
Support does not extend to problems with or damage to the ENLYZE platform to the extent these were caused by
(i) negligence, misuse, or improper operation by the client,
(ii) operation and/or use of the ENLYZE platform not in accordance with the specifications of the documentation or failure to comply with the specifications or restrictions provided by the contractor;
(iii) modifications to the ENLYZE platform that were not performed or approved by the contractor;
(iv) actions of third parties;
(v) third-party products; and/or
(vi) force majeure.
The contractor may combine redundant fault reports from the client relating to the same fault into one fault report.
Availability: Weekdays (except Saturday) 9 am – 5 pm (CET)
Email: support@enlyze.com
Languages: German and English
6.2 Response times
The contractor guarantees the following accessibility and response times for support. The response time represents the time between the initial request/fault report by the client (by phone or electronically) and the first feedback from the contractor (by phone or electronically). Only time intervals during accessibility times are relevant for the response time.
With each request/fault report, the contractor will, at his reasonable discretion, assign a priority in accordance with the criteria defined here.
Priority 1 (critical): The ENLYZE platform is no longer functioning and business processes are severely affected - Response time 4 hours
Priority 2 (high): Severe impairment of ENLYZE platform functionalities, but basic functionalities remain, significant restriction of business processes - Response time 8 hours
Priority 3 (medium): Functionality of the ENLYZE platform noticeably restricted, minor impact on business processes - Response time 48 hours
Priority 4 (low): Functionality of the ENLYZE platform slightly or not affected at all, mere "cosmetic defects" or general questions, no noticeable impact on business processes.
The contractor always endeavors and attaches great importance to resolving faults as quickly as possible. However, it is not possible to generally determine and guarantee fixed fault resolution times in advance, as faults can have a wide variety of causes and origins. The contractor will make every effort to resolve faults as quickly as possible and will regularly inform the client of the progress of fault resolution.
The client designates a support coordinator for each site. Only the support coordinator will contact the contractor regarding support or report faults.
6.3. Availability
The contractor will provide the software to the client from the completed setup with a availability of at least 99.5% of each calendar month (hereinafter 'minimum availability'). The software is considered available in this context when there is an uninterrupted connection between the servers hosting the software and the handover point to the internet, and the client is able to log in and access the software. The minimum availability does not apply to test and development servers.
Warranty
7.1
The ENLYZE platform and services are provided or rendered by the contractor free of defects and substantially correspond, upon proper use, to the specifications mentioned in the documentation. The contractor's services are executed with expertise and in accordance with industry standards by trained and experienced personnel. The granting of the agreed usage rights to the client is not opposed by any third-party rights. Technical data, specifications, and performance specifications in public statements, particularly in advertising materials, are not quality features.
7.2
In the event of defects, the client's defect claims are initially limited to subsequent performance. The client will notify the contractor in writing of any defects that occur, providing a description of the defect and requesting its rectification. In the event of proven defects, the contractor provides a guarantee by rectifying the defect in such a way that the contractor again provides or renders the ENLYZE platform or service in a defect-free condition, in particular by replacing faulty hardware components or rectifying the defect.
7.3
If subsequent performance definitively fails after two attempts at subsequent performance, the client can withdraw from the respective individual contract or reduce the remuneration appropriately. The contractor shall provide compensation for damages or reimbursement of futile expenses due to a defect within the limits of liability set out in these GTC.
payment terms
8.1
Unless otherwise agreed, the fee for using the ENLYZE platform will be invoiced monthly in advance from the conclusion of the setup, as defined in the individual contract or order form. The client is required to pay invoices within 14 days of the invoice date without any discount or other deductions. Unless otherwise agreed, indicating an order number or purchase order number on the invoice is not a prerequisite for the payment obligation.
8.2
In the event of default in payment, default interest becomes due at the statutory rate. The contractor is entitled to temporarily deactivate the client's access to the ENLYZE platform in the event of a payment default of more than 30 days, until the overdue invoice has been paid.
8.3
The specified prices do not include value added tax or other taxes. These may be invoiced separately to the client.
Limitation of liability
9.1
The contractor shall only be liable for simple negligence, for both their own behavior and behavior imputable to them, if essential contractual obligations (cardinal obligations) are violated. In this case, liability is limited to the contract-typical and foreseeable damage. Essential contractual obligations are those obligations the violation of which endangers the achievement of the contractual purpose, the fulfillment of which enables the proper implementation of the contract, and on the observance of which the client regularly relies. For the aforementioned cases of limited liability, the liability amount is additionally limited to 500,000 euros per contract year.
9.2
The contractor is only liable for direct and consequential damages as well as for loss of profit, additional personnel costs, futile expenses, and omitted savings, etc., only in cases of intent and gross negligence.
9.3
The limitations of liability do not apply to claims for intent and gross negligence, in case of personal injury, in case of deceit, insofar as the Product Liability Act applies, and for damages that fall within the scope of an independent guarantee, quality or durability guarantee provided by the contractor, unless the respective guarantee agreement states otherwise.
9.4
If the client violates the obligation to properly back up data, the contractor is liable within the above provisions for the loss of data limited to the extent of the damages that would have occurred even with proper and regular data backup by the client.
Data ownership and data confidentiality
10.1
The rights to the data collected and processed through the ENLYZE platform are exclusively owned by the client. The contractor processes this data only on the instruction of the client and not for its own purposes. The client can export their data from the software at any time and/or request the contractor to delete their data.
10.2
The contractor undertakes to treat the client's data processed by the software confidentially and not to disclose it to third parties, with the exception of affiliated companies and subcontractors, if this is necessary for the provision of services to the client.
Confidentiality
11.1
Each of the parties undertakes to use, treat as confidential, and protect from unauthorized third-party disclosure all information received in the context of the contractual cooperation, (a) marked as 'confidential' or 'secret' or with an equivalent indication, or identified as confidential orally; (b) to be considered confidential due to its content; or (c) derived from confidential information provided, exclusively for the purposes of the contractual cooperation. This obligation of confidentiality shall be imposed on all persons entrusted with the execution of this agreement.
11.2
The contractor is only liable for direct and consequential damages as well as for loss of profit, additional personnel costs, futile expenses, and omitted savings, etc., only in cases of intent and gross negligence.
Customer data and exemption
12.1
The contractor, as a technical service provider, stores content and data for the client, in particular information transmitted from the client's ERP systems or similar systems to the ENLYZE platform. The client undertakes not to process unlawful content and data and/or content and data that infringe the rights of third parties with the ENLYZE platform, and not to use programs containing viruses or other harmful software in connection with the ENLYZE platform. In particular, the client undertakes not to use the ENLYZE platform to offer or in connection with unlawful services or goods.
12.2
The client is solely responsible for all content and processed data used by him or his users, as well as the necessary legal positions required for this. The contractor has no knowledge of the client's or his users' content and does not review the content used with the ENLYZE software.
12.3
The client undertakes in this context to indemnify the contractor from any liability and any costs, including possible and actual costs of legal proceedings, if the contractor is held personally liable by third parties, including the client's employees, as a result of alleged actions or omissions of the client. The contractor will notify the client of the claim and, if legally possible, provide the client with the opportunity to defend the asserted claim. At the same time, the client will promptly provide the contractor with all available information about the facts that are the subject of the claim. Furthermore, the contractor's claims for additional damages remain unaffected.
Data privacy and information security
13.1
The collection or processing of personal data of the client by the contractor as a data processor is not the subject and purpose of the software.
13.2
The contractor processes the personal data of the contact persons at the client (name, first name, contact details) and the users of the software (email address, password, usage data, log files) for the performance of the contract (Art. 6 para. 1 lit. b) GDPR). With regard to the related data subject rights and other information obligations, reference is made to the data protection declaration on the contractor's website.
13.3
The contractor is authorized to use anonymized data in connection with the use of the software for internal business and/or operational purposes, in particular for the analysis of the use of the software and for the improvement of the software. The client gives an appropriate instruction for the anonymization of the data required for this purpose.
13.4
The technical and organisational security measures taken by the contractor are described in the contractor's IT Security Whitepaper. This is available in its current version here.
Runtime
The runtime of the respective individual orders is agreed upon in the respective order form. Unless otherwise agreed, the respective individual order is always extended by the initial runtime, if it is not terminated in writing with a notice period of one week before the end of the respective runtime. Individual orders may be terminated by either party at any time in the event of a material breach of contract by the other party, if the breach is not remedied within 30 days. This period starts from the time of the delivery of the written notice of the material breach of contract. The contractor may terminate individual orders at any time without notice if the client is dissolved or liquidated or takes steps to do so and/or if the client becomes insolvent or bankrupt.
General
15.1
The contract is subject to German law. In the event of disagreements arising from the contract, the parties undertake to first seek an amicable settlement. Should this not be possible, the parties now agree on Cologne as the general place of jurisdiction.
15.2
All notifications under the contract require written form and become effective upon first delivery.
15.3
The contractor may make changes to these terms and conditions if such changes are necessary for the client, for example due to changed circumstances, such as significant changes in legislation or case law, the relevant market and business environment, or due to technological developments. The contractor will inform the client of the changes in electronic form within a reasonable period, at least one month, before the changes come into effect. The client is entitled to object to such changes within 14 days of receiving the notification of the changes. In the event of an objection by the client, the contractor has the right to terminate the contractual relationship without notice. If the client does not object, his consent is deemed to have been given after the expiry of the aforementioned deadlines. The contractor will expressly draw the client's attention to the duration of the deadline and the significance of its fruitless expiry when announcing the changes to the terms and conditions.
