Contractual relationship 

General, scope of application 

This document contains the general terms and conditions ("GTC") under which summetix GmbH, Frohsinnstraße 32, 63739 Aschaffenburg ("summetix") provides services to its customers. 

Subject matter of the contract of these GTC are all services provided by summetix to the customer. Services can be in particular the temporary provision of software (software rental) or the provision of functionalities as software-as-a-service as well as related services and support services. 

These GTC shall also apply if the contracting parties make future agreements about services of summetix without summetix referring to these GTC again. This is especially valid for service offers, which will be created by summetix in the future. summetix offers its services to the customer only on the basis of these GTC. 

With the inclusion of these GTC, previous general terms and conditions of summetix are replaced.  

The offer of summetix is exclusively directed to entrepreneurs in the sense of § 14 BGB. Contracts with consumers in the sense of § 13 BGB are not concluded.  

Regulatory components and ranking 

The content of the contract shall be determined primarily by the stipulations made in the offer of summetix, then by the documents mentioned below in descending order: 

Service descriptions according to para. 1.2.2, 

Special Terms of Use of summetix 

these GTC. 

Descriptions of services ("Descriptions of Services") result from the features or other information on a product or a service presented by summetix before or at the conclusion of the contract, in particular from product descriptions as well as price lists of summetix. 

The service descriptions may in particular also determine the scope and modalities of the service provision as well as the technical basis for the use and operation of the products. Service descriptions shall only be valid if they have been provided by summetix as texts or images in digital or paper form. Verbal information shall not constitute a service description if they are not confirmed by summetix. 

Service descriptions shall not apply insofar as they deviate from express provisions in these GTC, unless this is done expressly and with reference to these GTC. 

The general obligations in electronic commerce pursuant to § 312 i) paragraph 1 sentence 1 number 1 to 3 and sentence 2 BGB are not applicable. 

Formation of contracts 

As a rule, a contract is concluded when the customer accepts the offer of summetix in text form. 

Insofar as products or services are presented on the internet pages of summetix and the conclusion of contracts is held in prospect, this shall in case of doubt only be an invitation to the customer to submit corresponding offers. summetix reserves the right to accept the offer of the customer, in particular with regard to the examination of its own ability to deliver and the creditworthiness of the customer. If the declaration of summetix represents an amending acceptance insofar as summetix includes these GTC for the first time, summetix waives the receipt of the declaration of acceptance in case of doubt. 

Any provisions of the customer's GTC that deviate from these GTC in whole or in part shall not be recognized by summetix, unless summetix has expressly agreed to them. This shall also apply if summetix provides the services without reservation in the knowledge of conflicting general terms and conditions of the customer. On the part of summetix, only the management or employees authorized by the management shall be authorized to give their consent. 

summetix shall be bound to offers for 14 calendar days, provided that these are designated as binding and no deviating binding period is specified. Otherwise offers of summetix are non-binding. 

Services 

summetix offers software solutions for the extraction of core information from specific text data for customer analysis and knowledge management. The text data is provided by the customer on a regular basis; the customer may additionally have the option to book various data packages. 

summetix offers different alternatives for the provision of software: 

as software to be installed on Customer's IT resources ("On-Premise"), the special terms of use for On-Premise Software shall apply with priority. 

as access to the functionalities of the Software via the Internet (Software-as-a-Service, "SaaS"), for which the special terms of use for SaaS shall apply with priority. 

Remuneration, billing 

The remuneration results from the offer. 

Unless otherwise agreed, the remuneration owed shall be paid on a contractual basis.  

Remuneration is due in advance on the 3rd working day of a billing period. 

If summetix provides additional services at the request of the customer, summetix shall receive remuneration for this on a time and material basis at the general rates of summetix. 

In case of a substantial exceeding of the agreed scope of use, summetix shall receive a remuneration for this to be determined appropriately by summetix. 

In case of default of payment by the customer, summetix shall be entitled to block access to the services until receipt of payment, after the unsuccessful expiry of a reasonable deadline set for the customer, in which the blocking of access to the services of summetix has been threatened at the same time. This shall not apply in the case of insignificant default amounts of up to 5% of the remuneration attributable to the service, in the case of time-based remuneration related to one month. The obligation to pay the agreed remuneration as well as other claims of summetix (e.g. interest on arrears) remain unaffected. 

Unless expressly stated otherwise, all prices are net prices plus VAT.  

summetix reserves the right to adjust the agreed remuneration of a continuing obligation appropriately with a notice period of 6 weeks prior to the effective date, if and insofar as the calculation bases underlying the pricing, such as the costs for personnel, material, operation and software maintenance, state/official taxes, levies, fees as well as costs of third party components have changed and only insofar as this changes the total price. As soon as the annual fee increases by more than 10%, the customer may terminate the contract with effect from the date on which the price adjustment becomes effective. The termination has to be declared at least 2 weeks before the price adjustment takes effect. summetix points out the special right of termination in the announcement of the price adjustment. If the calculation bases mentioned in sentence 1 decrease, the customer may demand a price reduction corresponding to the decreasing costs. The customer may assert this claim with a notice period of 6 weeks. The respective right to (change) termination of the parties remains unaffected by this clause. 

Liability 

The following provisions on liability and warranty of summetix shall apply to all claims for damages, defects, or substitute claims of the customer arising from or in connection with the performance of services by summetix, irrespective of the legal grounds on which they are based (e.g. warranty, delay, impossibility, any breach of duty, existence of an impediment to performance, tort, etc.), but not to claims of the customer 

for damages resulting from injury to life, body and health, 

in case of fraudulent concealment of a defect by summetix or due to the absence of a quality for which summetix has assumed a guarantee, 

which are based on intentional or grossly negligent conduct of summetix or its legal representatives, 

in accordance with the Product Liability Act and 

which are covered by § 69 or § 70 TKG. 

For the above exceptions, the statutory regulation shall apply. 

summetix shall be liable for slight negligence only in case of breach of essential obligations, i.e. obligations the fulfillment of which enables the proper execution of the contract in the first place, the breach of which endangers the achievement of the purpose of the contract and the compliance with which the customer can regularly rely on (cardinal obligation). In the event of a breach of a cardinal obligation, liability shall be limited to the foreseeable damage typical for the contract, however, to a maximum amount of EUR 20,000 per case of damage. This also applies to loss of profit and savings. Apart from that, the liability of summetix for slight or simple negligence is excluded. 

summetix shall be liable for grossly negligent damage caused by its vicarious agents limited to the compensation of the typical damage foreseeable for summetix at the time of conclusion of the contract. 

The strict liability of summetix in the area of tenancy and similar user relationships for errors already existing at the time of the conclusion of the contract is expressly excluded. 

summetix shall not be liable for defects of connected third party components, proprietary software of the customer or the interfaces used for the connection, unless they have been provided by summetix itself. The customer shall be responsible for checking which practical or legal consequences, such as additional costs, restrictions of functionality, security risks or possible damages the use of the services of summetix triggers.  

summetix shall not be responsible for disruptions of performance due to force majeure (in particular strikes, lockouts, official orders, natural disasters, epidemics or pandemics, failure of communication networks or network infrastructure, disruptions in the services of carriers). For such events summetix does not assume any responsibility or duty to avert, even if these events are foreseeable, unless they result from an explicit regulation. 

summetix retains the right to object to contributory negligence, in particular with regard to the customer's obligations to back up data and protect against malware in accordance with the current state of the art.  

In case of loss of data, summetix shall only be liable for the effort required to restore the data if the customer has properly backed up the data.  

For services used under the license conditions of third parties, the liability regulations of the respective license shall apply with priority and conclusively. If these regulations do not apply, this clause shall apply subordinately. 

For claims of the client against organs or employees of summetix, the regulations of this clause shall apply. 4 accordingly. 

Confidentiality 

The parties undertake to keep confidential for an unlimited period of time all confidential information to which they have access in connection with this contract. Confidential information shall be information which is either marked as proprietary or confidential or otherwise identified, or information which, according to the circumstances of its disclosure, is reasonably recognizable by the recipient as confidential or which are business secrets within the meaning of Section 2 No. 1 GeschGehG. 

The foregoing confidentiality obligation shall not apply if and to the extent that the respective information (i) is generally known or becomes generally known through no fault of the recipient and without breach of this confidentiality obligation, (ii) is or becomes state of the art, (iii) is already known to the recipient at the time of transmission, (iv) has been or becomes lawfully known or accessible to the recipient by a third party, (v) must be disclosed due to statutory provisions or enforceable official orders or court decisions. The other party shall be informed in due time before the information is disclosed to third parties. 

Each contracting party shall take reasonable precautions to safeguard the confidential information of the other party, but at least the measures required under Section 2 No. 1 b) GeschGehG. Each contracting party shall disclose confidential information of the respective other party to its bodies, employees, consultants or subcontractors only subject to this confidentiality obligation, to which the recipients shall then be subject accordingly. 

Privacy 

summetix processes personal data only in accordance with the applicable legal regulations, in particular the General Data Protection Regulation (DSGVO) and the Federal Data Protection Act (BDSG). 

The customer shall ensure the lawfulness of the data processing operations associated with the performance of the contract for the personal data from its own sphere of responsibility and, in particular, obtain any necessary consents. Furthermore, the customer shall also assume the fulfillment of all information obligations under data protection law, in particular from Art. 13 or 14 DSGVO, vis-à-vis data subjects from its own sphere of responsibility, in particular employees, for processing of personal data by summetix for the execution of the contract.Insofar as summetix processes personal data on behalf of or jointly with the customer (Art. 26, Art. 28 DSGVO), the parties shall conclude a separate agreement for this purpose in accordance with the model generally used by summetix. 

Changes in the regulations 

summetix reserves the right to change or amend these GTC and regulations in the service descriptions, also with effect for already existing contractual relationships. The same shall apply to the amount of the remuneration for the products and services, whereby with regard to the prerequisites and scope of the change in remuneration, the regulations of the price adjustment according to item 3.8 shall apply. summetix shall inform the customer prior to any change or addition. Changes and amendments shall be deemed accepted by the customer, unless the customer objects within 6 weeks after notification. summetix shall point out the consequences of the customer's silence to the customer in the notification of the change or addition to these GTC. Should the user object to the changes or amendments, either party may terminate this contract. The termination can also be declared by summetix already conditionally on this case together with the notification. In case of mandatory changes or amendments of the GTC according to applicable law or judicial or official order, the aforementioned periods may also be shorter. 

This digit 7 shall not apply to adjustments or changes of the services of summetix in continuing obligations that do not have a significant influence on the equivalence relationship. In particular, the provisions of these GTC regarding changes of the systems or changes of the services due to updates remain unaffected. 

Final provisions 

Except in the area of § 354a of the German Commercial Code (HGB), the client may only assign claims arising from this contract to third parties with the prior written consent of summetix. 

The customer may only assert a right of retention or set-off with counterclaims that are undisputed, have been confirmed in writing by summetix or have been legally established or to which the customer is entitled within the scope of the warranty for defects. 

Declarations under these GTC (including consents, notifications, etc.) must be made in text form (such as fax, e-mail), unless otherwise agreed. 

German law shall apply exclusively, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN Sales Convention) and such provisions that may lead to the application of foreign law. 

The exclusive place of jurisdiction for all disputes arising from and in connection with this contract shall be the head office of summetix at the time of lis pendens. This shall not apply if a different exclusive place of jurisdiction is determined by law. In addition, summetix shall also be entitled to sue at the general place of jurisdiction of the customer. 

Status: February 2023