GTC ENLYZE

1. Preamble

ENLYZE GmbH (hereinafter referred to as “Contractor”) has developed a solution for monitoring the condition of machines and for forecasting and optimizing product quality. The solution consists of one or more hardware component(s) (hereinafter “Hardware”) and the ENLYZE SaaS platform (hereinafter “Software”). The use of the Hardware and Software (hereinafter “ENLYZE Platform”) and the provision of supplementary services (“Services”) are subject to these General Terms and Conditions (“GTC”).

2. Rights of use and Ownership

  1. The Contractor grants to the Client for the term of the contract the paid, worldwide, non-exclusive and non-transferable right to use the Software as intended in accordance with the provisions in the Order Form. The Software shall be made available to the Client in its respective current version/release. The Software shall not be transferred to the Client. The Client shall not receive any right to the object and/or source code of the Software.
  2. The Contractor shall provide the Client with one or more hardware component(s) for the term of the contract. The hardware component(s) shall always remain the property of the Contractor. After termination of the contract, the Client shall return the hardware components to the Contractor at its own expense and risk. If a return is not made within 30 days after termination of the contract, the Contractor shall be entitled to invoice the hardware components according to its respective current standard price list.
  3. The Client may use the ENLYZE platform only within the scope of the contractual provisions. The Client may only use the ENLYZE platform for its own purposes. The use for own purposes includes the intended use for general business purposes of the Client and the processing of the Client’s data. It does not include the use for third parties, e.g. as a service provider or any other transfer or mediation of use to third parties.
  4. The Client is entitled to have the ENLYZE platform used by its own employees or by third parties for its own purposes. The Client is responsible for the use of the ENLYZE platform by its users and all damages caused by negligent or intentional breaches of duty by its users.
  5. Unless otherwise agreed, all rights to the ENLYZE platform and to the services provided by the Contractor or developed under this contract shall 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 shall also be the exclusive property of the Contractor.
  6. The Software may contain open source software components. The use of these components is exclusively subject to the respective terms of use of the open source software components which are transmitted and/or referenced within the scope of the open source software components. No provision of these GTC shall affect 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 license terms of the Open Source Software and the provisions of these GTC, the license terms of the Open Source Software shall take precedence.
  7. The right to use the Software also extends to fixes, patches, developments and updates which the Contractor makes available to the Client. The right to updates does not include the right to a right to use new/additional products and functionalities which are provided as a separate product/module.
  8. The Contractor shall provide the Software and detailed documentation of the Software in electronic form.
  9. Unless otherwise agreed or required by mandatory law or applicable open source software terms of use, the Client shall not be entitled to,
  1. a) to copy the Software beyond the extent required for the contractual use, neither in whole nor in part;
  2. b) to modify, correct, adapt, translate, improve or otherwise make derivative developments to the Software;
  3. c) rent, lend, sell, license, transfer or otherwise make the ENLYZE Platform available to third parties;
  4. d) reverse engineer, decompile, disassemble or otherwise attempt to decipher the source code of the Software, in whole or in part;
  5. e) circumvent or violate any security devices or protection mechanisms contained in or used for the Software;
  6. f) take any action that is likely to cause damage to the ENLYZE Platform or the Contractor’s servers;
  7. g) remove, delete, obliterate, alter, obscure, translate, combine, add to or otherwise modify any trademarks, documentation, warranties, disclaimers or other rights, such as intellectual property, marks, notices, labels or serial numbers, associated with the ENLYZE Platform or documentation;
  8. h) to use the ENLYZE Platform in a way that violates applicable law and/or the rights of third parties;
  9. i) use the ENLYZE Platform for the purpose of benchmarking or competitive analysis, for the development, use or provision of a competing product or service, or for any other purpose that is detrimental to Contractor; and/or
  10. j) use the ENLYZE Platform for or in connection with the design, construction, maintenance, operation or use of hazardous environments, systems or applications, or other safety-critical applications, or otherwise use the ENLYZE Platform in a manner where its use could result in physical harm or serious property damage.

3. Service Provision

  1. The Client requires a current standard web browser to use the Software. The Client shall be responsible for the provision and operation of the required operating software, the network connections for the hardware defined in the Order Form and/or the documentation, and for the secure and fast connection of the hardware and the Software via the Internet.
  2. Setup/installation and configuration of the ENLYZE Platform shall be provided as agreed in the respective Order Form. The ENLYZE Platform and other work results shall be deemed to have been handed over as soon as they have been made available to the Client. Services shall be deemed rendered as soon as the respective service has been completed. Support/maintenance, if applicable, shall be deemed to have been provided on a monthly pro-rata basis as time elapses.
  3. Unless otherwise agreed, the ENLYZE Platform and any Services shall not be subject to a separate acceptance by the Client but shall be deemed accepted upon delivery. If an acceptance has been contractually agreed upon and the Client has not complied with the time or test plan of the acceptance or if such a test plan or a time limit for tests and acceptance does not exist, the ENLYZE Platform and Services shall be deemed accepted ten working days after handover.
  4. Based on the collected machine data and, if applicable, the data collected from an ERP system of the Client and/or other sources, the ENLYZE Platform generates various evaluations, e.g. KPIs, reports, analyses and recommendations (hereinafter “Reports”). The accuracy and quality of these reports depends on various factors, in particular on the quality and quantity/completeness of the collected machine data and/or the data collected from an ERP system and/or other sources. Reports are accordingly non-binding, the Contractor assumes no consultant liability or other liability for the reports and the Client should not make any decisions and material dispositions solely on the basis of the Reports.
  5. The Contractor shall be entitled to use subcontractors or other vicarious agents (collectively, “Subcontractors”) to perform its obligations under the contract. The Contractor shall ensure that Subcontractors are bound by obligations regarding confidentiality and data protection in accordance with these GTC. The engagement of Subcontractors shall not affect the Contractor’s contractual obligations to the Client. The Contractor shall be liable for any poor performance of a subcontractor as for its own fault.

4. Obligations of the Client

  1. The Client shall support the Contractor in the performance of the contractual services to an appropriate extent. The Client shall, without being requested to do so, provide in advance all cooperation services, information, data, files, materials which are necessary for the Contractor to fulfill its contractual obligations. If the Client fails to cooperate sufficiently and/or causes delay, the Contractor shall not be obliged to fulfill the contractual obligations as long and as far as the Contractor is prevented from fulfilling the contractual obligations due to insufficient and/or delayed cooperation of the Client. The Contractor shall inform the Client of its insufficient or delayed cooperation and set a reasonable deadline for subsequent performance. If the Client nevertheless fails to fulfill its obligations to cooperate, any resulting increases in remuneration, additional expenses (e.g. additional work, cancellation costs, travel expenses) and postponements of deadlines that cannot be avoided by the Contractor shall be borne by the Client. After fruitless expiration of the grace period, the affected software or service shall be deemed to have been provided or rendered.
  2. The Client shall be responsible for (i) appropriate security processes, tools and controls for systems and networks interacting with the ENLYZE Platform, (ii) determining whether the technical and organizational measures of data protection and data security provided by the Contractor meet the Client’s specific requirements; (iii) the appropriate internal training of users and the provision of internal technical support with regard to the use and operation of the ENLYZE Platform; and (iv) the proper backup of data transferred to the Software or created with the Software and of the data and data created with the Software and work results created with the Software, in particular the data from its ERP system, upon commencement of the use of the Software and at reasonable regular intervals thereafter.

5. Services

  1. Unless otherwise agreed in the Order Form, services ordered by the Client from the Contractor shall be invoiced on a time and material basis at the end of the calendar month in which they are provided. Invoicing shall be based on the Contractor’s time sheets. Unless otherwise agreed, reasonable travel expenses shall be borne by the Client at cost and against receipt and invoiced monthly.
  2. Insofar as employees of the Contractor are on the premises of the Client, they shall comply with safety instructions of the Client. For this purpose, the Client shall provide these instructions to the Contractor in writing in advance.
  3. The Contractor reserves all rights to work results created during the provision of Services, in particular to software/code, interfaces, methods, processes and templates used, created or modified by the Contractor (“Individual Developments”). The Contractor shall grant the Client a non-exclusive, non-transferable right of use to such work results for its own purposes in accordance with section 2.1 or 2.2 of these GTC. If the Contractor creates data analyses and specific reports, KPIs, analyses and recommendations (hereinafter “Reports”) as part of its Services on behalf of the Client, it shall grant the Client an exclusive right of use to the Reports, but not to the methods and analysis algorithms used for this purpose.
  4. Work results created by the Contractor as part of the provision of services for the Client, in particular customizing/modification of the Software or Hardware, shall not be covered by the Contractor’s standard support, unless these work results are incorporated into the standard Software. In principle, such work results can also only be used with the current version/release of the Software at the time of creation. Any upgrade or update may require additional migration services for which a charge will be made.

6. Service Level

6.1 Support

Support shall include assistance and advice to the Client in resolving problems with the use of the ENLYZE Platform, including the review, diagnosis and correction of significant defects and errors of the ENLYZE Platform and the provision of 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 cover problems with or damage to the ENLYZE Platform to the extent caused by (i) Client’s negligence, misuse or improper operation; (ii) operation and/or use of the ENLYZE Platform not in accordance with the requirements of the Documentation or failure to comply with the specifications or limitations provided by Contractor; (iii) modifications to the ENLYZE Platform not made or approved by Contractor; (iv) acts of third parties; (v) third party products; and/or (vi) force majeure.

Contractor may combine redundant trouble reports by Client that relate to the same trouble into one trouble report.

Availability: Business days (except Saturday) 9 a.m. – 5 p.m. (CET)

E-mail: support@enlyze.com

Languages: German and English

6.2 Response Times

The Contractor guarantees the availability and response times specified below for the support. The response time is the time between the first request/fault report by the Client (by telephone or electronically) and the first response (by telephone or electronically) from the Contractor. Only time intervals during the availability times are relevant for the response time.

For each request/trouble report, Contractor shall dutifully indicate a priority according to the criteria defined herein.

Priority 1: (critical): ENLYZE platform has stopped functioning and business processes are severely impacted – response time 4 hours.

Priority 2 (high): Severe impairment of ENLYZE platform functionalities, but basic functionalities remain intact, significant restriction of business processes – response time 8 hours

Priority 3 (medium): Functionality of the ENLYZE platform noticeably impaired, minor impact on business processes – response time 48 hours

Priority 4 (low): Functionality of the ENLYZE platform slightly or not at all impaired, mere “blemishes” or general issues, no noticeable impact on business processes.

The Contractor shall always endeavor and place the highest priority on resolving faults as quickly as possible, but it is not possible to define and guarantee fixed fault resolution times in advance in general, as faults can be of various types and have a wide variety of causes. The Contractor shall use its best efforts to remedy faults as quickly as possible and shall regularly inform the Client about the progress of the fault remedy.

The Client shall define a support coordinator for each site. Only the support coordinator will contact the Contractor regarding support or report faults.

6.3 Availability

The Contractor shall make the Software available to the Client with an availability of at least 99.5% of the respective calendar month from the time of the completed setup (hereinafter “Minimum Availability”). In this context, the Software shall be available if there is an uninterrupted connection between the servers on which the Software is hosted and the transfer point to the Internet and the Client is able to log on and access the Software. The minimum availability does not apply to test and development servers.

7. Warranty

  1. The ENLYZE Platform and Services shall be provided or rendered by the Contractor free of defects and, if used as intended, shall essentially comply with the specifications stated in the Documentation. The Services of the Contractor shall be performed competently and professionally according to industry standards by instructed and experienced personnel. The granting of the agreed rights of use to the Client shall not be opposed by any rights of third parties. Technical data, specifications and performance data in public statements, in particular in advertising material, shall not be deemed to be quality data.
  2. In the event of defectiveness, the Client’s claims for defects shall initially be limited to supplementary performance. The Client shall notify the Contractor in writing of any defects occurring, including a description of the defect, and request that the defect be remedied. In case of proven defects, the Contractor shall provide warranty by supplementary performance in such a way that the Contractor provides or renders the ENLYZE Platform or the Service again in a defect-free condition, in particular replaces defective hardware components, or eliminates the defect.
  3. In case the supplementary performance finally fails after two attempts of supplementary performance, the Client may 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 forth in these GTC.

8. Terms of Payment

  1. Unless otherwise agreed, the remuneration for the use of the ENLYZE Platform shall be invoiced monthly in arrears as of the completion of the setup as defined in the individual contract or Order Form. The Client shall pay invoices within 14 days after the invoice date without any discount or other deductions. Unless otherwise agreed, the specification of an order number or purchase order number on the invoice is not a prerequisite for the payment obligation.
  2. In the event of late payment, interest on arrears shall be due at the statutory rate. The Contractor shall be entitled to temporarily disable the Client’s access to the ENLYZE Platform in case of a delay in payment of more than 30 days until the overdue invoice has been paid.
  3. The prices quoted do not include sales tax or other taxes. These will be charged separately to the client, if applicable.

9. Limitation of Liability

  1. The Contractor shall be liable for ordinary negligence, both for its own conduct and for attributable conduct, only if material contractual obligations (cardinal obligations) are violated. In this case the liability is limited to the contract-typical and foreseeable damage. Material contractual obligations are those obligations whose breach jeopardizes the achievement of the purpose of the contract, whose fulfillment makes the proper execution of the contract possible in the first place and on whose compliance the client regularly relies. For the aforementioned cases of limited liability, the amount of such liability shall additionally be limited to 500,000 Euros per contractual year.
  2. The Contractor shall only be liable for indirect and consequential damages as well as for lost profits, additional personnel costs, useless expenses and omitted savings etc. in the event of intent and gross negligence.
  3. The limitations of liability shall not apply to claims based on intent and gross negligence, in the event of personal injury, in the event of fraudulent intent, insofar as the Product Liability Act applies, and for damages that fall within the scope of protection of an independent guarantee, quality or durability guarantee given by the Contractor, insofar as nothing to the contrary results from the respective guarantee agreement.
  4. If the Client violates its obligation to properly back up data, the Contractor’s liability for loss of data shall be limited to the amount of the damage that would have occurred even if the Client had properly and regularly backed up the data.

10. Data Ownership and Data Confidentiality

  1. The rights to the data collected and processed by means of the ENLYZE Platform shall exclusively belong to the Client. The Contractor shall process such data only upon instruction of the Client and not for its own purposes. The Client may export its data from the ENLYZE Platform and/or have its data deleted by the Contractor at any time.
  2. The Contractor undertakes to treat the Client’s data processed by it by means of the ENLYZE Platform as confidential and not to disclose it to third parties. Affiliated companies and subcontractors are excepted, insofar as this is necessary for the provision of services to the Client.

11. Confidentiality

  1. Each of the Parties undertakes to treat as confidential all information received within the framework of the contractual cooperation which (a) is marked as “confidential” or “secret” or with an equivalent reference or is verbally designated as confidential; (b) is to be regarded as confidential due to its content; or (c) is derived from confidential information which has been made available; exclusively for the purposes of the contractual cooperation, and to protect it from being disclosed to unauthorized third parties. This confidentiality obligation shall be imposed on all persons entrusted with the execution of this Agreement.
  2. Excluded from the confidentiality obligation is information which (a) is publicly accessible or subsequently became publicly accessible or was already known to the other party at the time of the conclusion of the contract; (b) was independently and autonomously developed by the other party; (c) was disclosed to the other party by a third party who is not subject to a confidentiality obligation, or (d) must be disclosed due to statutory provisions or official or court orders (in this case, the party concerned shall be informed thereof without undue delay).

12. Client Data and Indemnification

  1. As a technical service provider, the Contractor shall store content and data for the Client, in particular information transmitted from ERP systems or similar systems of the Client to the ENLYZE platform. The Client undertakes vis-à-vis the Contractor not to process any illegal content and data and/or content and data infringing the rights of third parties with the ENLYZE Platform and not to use any programs containing viruses or other malware in connection with the ENLYZE Platform. In particular, the client undertakes not to use the ENLYZE-platform for offering or in connection with illegal services or goods.
  1. The Client shall be solely responsible for all content and processed data used by him or his users as well as for the legal positions that may be required for this purpose. The contractor does not take any notice of contents of the client or its users and does not check the contents used with the ENLYZE software.
  2. In this context, the Client undertakes to indemnify the Contractor against any liability and any costs, including possible and actual costs of legal proceedings, if a claim is made against the Contractor by third parties, including employees of the Client personally, as a result of alleged acts or omissions of the Client. The Contractor shall notify the Client of the claim and, to the extent legally possible, give the Client the opportunity to defend the asserted claim. At the same time, the Client shall immediately provide the Contractor with all information available to it concerning the facts which are the subject of the claim. Any further claims for damages of the Contractor shall remain unaffected.

13. Data Protection and Information Security

  1. The collection or processing of personal data of the Client by the Contractor as a processor is not the object and purpose of the Software.
  2. The Contractor shall process the personal data of the contact persons at the Client (surname, first name, contact data) and of the users of the Software (e-mail address, password, usage data, log files) for the performance of the contract (Art. 6 (1) lit. b) GDPR). With regard to the rights of data subjects in this respect and other information obligations, reference is made to the data protection declaration on the Contractor’s website.
  3. The Contractor shall be entitled to use anonymized data in connection with the use of the Software for internal business and/or operational purposes, in particular to analyze the use of the Software and to improve the Software. The Client shall issue a corresponding instruction to anonymize the data required for this purpose.

The technical and organizational information security measures taken by the Contractor are described in the Contractor’s IT Security Whitepaper. The current version of this document is available here.

14. Term

The term of the respective individual orders shall be agreed in the respective Order Form. Unless otherwise agreed, the respective individual order shall always be extended by the initial term if it is not terminated in writing with one week’s notice to the end of the respective term. Individual orders may be terminated by either party at any time in the event of a material breach of contract by the other party, unless the breach is cured within 30 days. This period shall commence from the date of delivery of the written notice of 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.

15. Miscellaneous

  1. The agreement shall be governed by German law. In the event of any disagreement arising from the agreement, the parties undertake to first reach an amicable settlement. Should this not be possible, the parties agree already now on Cologne as general place of jurisdiction.
  2. All notices under the agreement must be in writing and shall become effective upon first delivery.
  3. The Contractor may make changes to these GTC if these become necessary due to changed circumstances, for example in the event of significant changes in legislation or case law, the relevant market and business environment or due to technical developments, are reasonable for the Client. The Contractor shall notify the Client of the changes in electronic form within a reasonable period of time, at least one month, before the changes come into force. The Client shall be entitled to object to such changes within 14 days after receipt of the change notification. In the event of an objection by the Client, the Contractor shall have the right to terminate the contractual relationship extraordinarily without observing a notice period. If the Client does not object, its consent shall be deemed to have been granted after expiry of the above-mentioned periods. The Contractor shall expressly point out the duration of the period and the significance of its expiry without result when announcing the changes to the GTC.
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