1 General
1.1 The following General Terms and Conditions (“GTC”) shall apply to all legal transactions and in particular to the licensing of software, the sale of products and the provision of services, e.g. as a Software as a Service solution between SMART IN MEDIA AG or one of its affiliated companies (hereinafter “Licensor”) and its customers (hereinafter “Customer”). Unless otherwise agreed, these GTC shall apply in the version valid at the time of the offer by the Licensor or, in any case, in the version last notified to the Customer in writing or in text form, also to similar future contracts, without the Licensor having to refer to them again in each individual case.
1.2 These GTC apply exclusively. Deviating, conflicting or supplementary terms and conditions of the customer shall only become part of the contract if and to the extent that the Licensor has expressly agreed to their validity in writing or in text form. This shall also apply if the Licensor commences licensing or providing services in the knowledge that the customer’s terms and conditions conflict with or deviate from these GTC.
1.3 Individual agreements made with the customer in individual cases (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTC. Subject to proof to the contrary, a written contract or a confirmation in text form by the Licensor shall be authoritative for the content of such agreement.
1.4 Legally relevant declarations and notifications by the customer in relation to the contract (e.g. setting of a deadline, reminder, withdrawal) must be made in writing or in text form. Legal formal requirements and further proof, in particular in the case of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
1.5 The product and service offer is directed exclusively at entrepreneurs (as defined by § 14 para. 1 BGB, i.e. natural or legal persons or partnerships with legal capacity who are acting in the exercise of their commercial or independent professional activities when concluding the transaction) as well as legal persons under public law and special funds under public law, but in any case only to end customers. The customer confirms this within the framework of the order.
2 Subject of the Contract
2.1 The subject matter of this Agreement is the software (“Software”) provided by the Licensor for use by the Client and designated in the offer, which is either provided as a software as a service solution (“SaaS”) or installed as access software on one or more server(s) of the Client and, in connection with a cloud server of the Licensor, enables the uploading, sharing and editing of pathological preparations against payment of the agreed fee, as well as purchase agreements and deliveries of hardware and other physical goods (“Hardware”) in accordance with the offer of the Licensor and the corresponding order of the Client.
2.2 Within the framework of the conclusion of a licence or SaaS contract, the Licensor shall make the software specified in the licence agreement available to the customer in the respective current version via the Internet or, depending on the product, as a local installation at the customer’s premises against payment for the duration of the contract.
2.3 The scope of functions of the software is set out in the current service description of the Licensor.
2.4 Unless otherwise agreed, the Licensor shall provide the customer with the agreed number of user names and user passwords after conclusion of a licence or SaaS contract. All user passwords shall be changed immediately by the customer into user passwords known only to him. The customer is obliged to ensure the secrecy of the user names and user passwords assigned to him and the other users.
2.5 As a rule, use of the cloud also includes software updates, technical software support, a hotline for customer enquiries, hosting in a previously agreed amount of storage space and software maintenance through quality-assured processes. 2.6 The Licensor continuously develops the software and is entitled to make changes to the software at short notice and without prior notice by means of updates and upgrades, provided that these serve to maintain and/or improve the software.
3 Storage of Customer Data
3.1 Unless a specific volume has been expressly agreed, the Licensor shall maintain a reasonable amount of storage space, as defined by the Licensor, on a server for the storage and use of the data by the customer.
3.2 The Licensor shall ensure that the stored data can be accessed via the Internet.
3.3 The customer is not entitled to transfer this storage space to a third party for use, in part or in full, against payment or free of charge.
3.4 The customer undertakes not to store any content on the storage space whose provision, publication or use violates applicable law or agreements with third parties.
3.5 The Licensor shall take appropriate precautions against data loss and to prevent unauthorised access by third parties to the Customer’s data. For this purpose, the Licensor shall make regular backups, check the Customer’s data for viruses and install firewalls in accordance with the state of the art.
3.6 Upon termination of the licence agreement, the customer shall independently remove all data stored on the storage space allocated to him and, if necessary, transfer it to other storage media. The customer shall not be entitled to also receive the software suitable for the use of the data. The Licensor is entitled to irrevocably delete all of the Customer’s data on the servers two (2) weeks after termination of the licence agreement.
4 Term of the contract
4.1 The contract on the use of the cloud server is concluded for an indefinite period, unless otherwise agreed in writing.
4.2 The term of the contract begins with the completed installation, unless otherwise agreed.
4.3 The contractual relationship may be terminated by either contracting party in writing with three months’ notice to the end of the contractual term. If notice of termination is not given in due time, the contractual term shall be extended by a further 12 months.
4.4 In addition, the contract may be terminated in writing by either contracting party without notice for good cause. Good cause shall be deemed to exist if the party terminating the contract cannot reasonably be expected to continue the contractual relationship until the expiry of the notice period or until the contractual relationship is otherwise terminated, taking into account all circumstances of the individual case, in particular any fault on the part of the contractual partners, and weighing up the interests of both parties.
4.5 Good cause “entitling the Licensor to terminate the contract shall exist in particular if the customer infringes the Licensor’s rights of use by using the software beyond what is permitted under this contract and fails to remedy the infringement within a reasonable period of time in response to a warning from the Licensor.”
4.6 Good cause shall also be deemed to exist if the customer is in default of payment of the licence fee or a not insignificant part of the fee on two consecutive dates or is in default of payment of the licence fee in a period extending over more than two dates in an amount equal to the fee for two months.
4.7 In the event of termination, the customer shall cease using the software.
5 Prices and Terms of Payment
5.1 The agreed unit price for the software shall become due upon operational provision by the Licensor.
5.2 The agreed unit price for the hardware shall become due upon signing of the purchase agreement. The prices of the Licensor for the hardware include the statutory value added tax, but not shipping costs. Customs duties and similar charges shall be borne by the customer.
5.3 Unless otherwise agreed, invoices shall be issued quarterly at the beginning of the quarter with a payment term of 14 days.
5.4 In the event of further developments or changes to the software, which are requested by the customer after the initial provision, [125.00] Euro net per developer working hour shall be charged.
5.5 Any travel expenses incurred and the amount of work (on-site personnel support) shall be invoiced separately and invoiced immediately depending on the amount of work involved. They shall be due for payment within 14 days.
5.6 The Licensor is entitled to change the agreed licence fees for the first time after the expiry of 12 months after the commencement of the contract with a written notice of 30 days to the beginning of the following month, if and to the extent that his costs incurred for the proper performance of the contract have changed. In this case, the customer has the right to terminate the contractual relationship in writing within a period of 30 days after receipt of the notice. The Licensor shall inform the customer of this right of termination together with each notice.
5.7 The customer shall have no right of set-off or retention unless the counterclaim is undisputed or has been finally adjudicated.
6 Deadlines for the Shipment of the Hardware, Sale, Partial Deliveries
6.1 All periods for the shipment of the Hardware specified by the Licensor in the order or otherwise agreed upon shall commence on the day of the conclusion of the purchase contract. The date of handover of the Hardware by the Licensor to the shipping company shall be decisive for compliance with the shipping date.
6.2 Deadlines specified by the Licensor for the shipment of the Hardware shall always be approximate and may therefore be exceeded by up to 10 working days. This shall not apply if a fixed shipping date has been agreed. If no deadline or date for shipment is specified or otherwise agreed, shipment within (ten) working days shall be deemed agreed.
6.3 If the hardware is not available through no fault of the Licensor or is not available in time despite timely reordering, the Licensor shall be entitled to withdraw from the purchase contract. The Licensor shall notify the customer without delay of the non-availability of the hardware and, in the event of withdrawal, shall reimburse the customer without delay for any payments made to the Licensor.
6.4 If the customer has purchased several separately usable products in one order, the Licensor may also send them in several separate deliveries, whereby the Licensor shall bear the additional shipping costs caused thereby. The customer’s statutory rights with regard to timely and proper delivery shall not be limited thereby.
7 Mode and Duration of Shipment, Insurance and Transfer of Risk
7.1 Unless expressly agreed otherwise, the Licensor shall determine the appropriate mode of shipment and the transport company at its reasonable discretion.
7.2 If the Hardware is shipped in accordance with the agreements made with the customers without the Licensor having undertaken additional installation or assembly work or the like, the Licensor shall only owe the timely, proper delivery of the Hardware to the transport company and shall not be responsible for any delays caused by the transport company. A shipping time stated by the Licensor (period between handover by the Licensor to the transport company and delivery to the customer) is therefore non-binding.
7.3 The risk of accidental loss, accidental damage or accidental destruction of the delivered hardware shall pass to the customer upon delivery of the hardware to the transport company, provided that the Licensor is only responsible for the shipment.
8 Rentention of Title
8.1 The Licensor retains title to the Hardware delivered by the Licensor until full payment of the purchase price (including VAT and shipping costs) for the relevant Hardware.
8.2 The customer shall not be entitled to dispose of the ownership of the Hardware delivered by the Licensor and still subject to retention of title (“Retained Goods”) without the Licensor’s prior written consent. The disposal of the customer’s legal position with regard to the Retained Goods (so-called expectant right) remains permissible as long as the third party is made aware of the Licensor’s right of ownership.
8.3 The customer shall treat the reserved goods with care.
8.4 In the event of access by third parties – in particular by bailiffs – to the goods subject to retention of title, the customer shall point out the Licensor’s ownership and notify the Licensor without delay so that the Licensor can enforce the Licensor’s ownership rights.
8.5 In the event of default in payment, the Licensor is entitled to demand the return of the goods subject to retention of title if the Licensor has withdrawn from the contract.
9 Scope of Use / Rights of Use
9.1 The customer is granted the simple, non-exclusive, non-transferable and non-sublicensable right, exclusively for its business purposes, to use the software on the location/server named in the offer/contract for a limited period of time, depending on the terms agreed in the respective contract, in the agreed licence type and in the manner described in these terms of use. Licence type means how the software listed in the licence certificate, offer or invoice is licensed, in particular per user, per doctor or per practice. The right of use is granted exclusively to the customer and the companies named in the contract.
9.2 Simultaneous use of the software by more than the agreed number of users is an overuse of the software in breach of the contract. The customer is obliged to notify the licensor of any overuse immediately after becoming aware of it. The overuse shall then be invoiced for the relevant period for each additional user at the then valid list price.
9.3 The customer may reproduce the software to the extent that the respective reproduction is necessary for the use of the software. Necessary reproductions include the installation of the programme on the mass memory of the hardware used, the loading of the programme into the main memory and the running of the software.
9.4 Copyright notices, serial numbers and other features serving to identify the software may not be removed or changed by the customer.
9.5 The customer is not permitted to rework or modify the software in any way, in whole or in part, or to create derivative works based in whole or in part on the software. The customer is also prohibited from reverse-engineering the software, translating it or detaching parts of the programme from the software. The customer is not entitled – with the exception of the statutory exceptions of §§ 69 b) and 69 e) UrhG – to decompile or disassemble the software, to carry out reverse engineering or to otherwise attempt to derive the source code. If the customer is permitted by mandatory statutory provisions to carry out reverse engineering or decompilation in order to achieve full functionality or interoperability with other software programs, the customer is obliged to inform the licensor of the nature and scope of the intended actions before carrying out any such measures. Incidentally, decompilation is only permissible if the customer can prove a legitimate interest worthy of protection in taking the action.
9.6 The customer is obliged to prevent unauthorised access to the software by third parties by taking suitable precautions. The delivered software as well as the backup copies shall be kept in a place secured against unauthorised access by third parties. The customer’s employees shall be emphatically instructed to comply with these contractual and business terms and conditions as well as the licensor’s copyright.
9.7 The customer shall be liable for ensuring that the software is not used for purposes that violate the law or official regulations or requirements or that corresponding data is not stored on the servers.
9.8 The customer is obliged to apply procedures in his company which make it possible to check the use of the software in accordance with the type of licence, e.g. procedures which make it possible to determine the number of users. The customer is obliged to submit a written report to the licensor once every calendar year in which the number of users is listed depending on the type of licence.
10 Leasing and Transfer
Any leasing or other transfer of the software by the customer against payment or free of charge, in particular also leasing by way of “Application Service Providing (ASP)” or “Software as a Service (SaaS)”, is not permitted unless a corresponding written agreement has been concluded between the customer and the licensor. Any transfer of the software by the customer requires the written consent of the licensor. 11.
11 Product Updates
The Licensor may update and/or revise the design and content of its products to remedy any defects or to improve and extend the functionality. Updated or revised Products shall be subject to the terms of this Agreement.
12 Support, Availability
12.1 Telephone support (hotline) is available to the customer. The Licensor shall answer enquiries of the customer regarding the use of the software by telephone or in text form during normal business hours after receipt of the respective question. The Licensor shall be entitled to commission third parties to perform these services.
12.2 If the software is provided as Software as a Service, the Licensor shall provide the customer with the software with an availability of 98.5% on a monthly average. Excluded from this are times when the server cannot be reached due to other technical problems beyond the Licensor’s control (in particular force majeure, fault of third parties). Scheduled maintenance work is also excluded.
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12.3 The contractual partners understand availability to mean the technical usability of the software at the transfer point for use by the customer. As a rule, the customer shall be informed in good time of planned non-availabilities and maintenance work.
12.4 The Licensor is entitled to interrupt the availability of the software for maintenance purposes and due to other technical requirements. As far as possible, maintenance work shall be carried out outside normal business hours (CET, Monday to Friday between 08:00 a.m. and 05:00 p.m.).
13 Response and Recovery Times
13.1 The Provider shall ensure that the fault clearance is initiated and the Customer is informed thereof within a period of time agreed in the table below, depending on the fault class, from receipt of the notification of a technical fault by the Customer (fax, telephone, email) or from the time of an automatic error message by the SERVER or by the system installed at the Customer’s premises (response time). Furthermore, the Licensor shall ensure that the reported or noticed technical malfunction is remedied from receipt of the malfunction report in accordance with the periods described below (recovery time). It should be noted that the response and recovery times stated below refer to normal business hours (CET, Monday to Friday between 08:00 a.m. and 05:00 p.m.).
Disturbance Class 1
Response time in hours: 2 h
Recovery times in hours: 12 h
Disturbance Class 2
Response time in hours: 4 h
Recovery times in hours: 12 h
Disturbance Class 3
Response time in hours: 24 h
Recovery times in hours: 48 h
13.2 The fault classes are defined as follows:
(a) Class 1 (serious faults or faults that prevent operation): [e.g.: all or essential functionalities of the software or services specified in the specifications are completely unavailable; a workaround does not exist].
(b) Class 2 (Significant or Operationally Disruptive Failures): [e.g. at least three of the functionalities or services addressed in Class 1 are materially impaired, with no workaround available].
(c) Class 3 (minor or non-disturbance): [e.g.: at least three of the functionalities or services addressed in Class 1 are significantly impaired without a workaround available].
14 Duties and Obligations of the Customer
14.1 The Customer shall in particular:
(a) create the access requirements necessary for initial provision and maintenance;
(b) comply with the restrictions / obligations with regard to the rights of use;
(c) ensure that the Customer respects all third party rights to material used by the Customer;
(d) obtain the required consent of the respective data subject, insofar as he/she collects, processes or uses personal data when using the Software and no statutory permissible circumstance intervenes;
(e) before sending data and information to the Provider, check them for viruses and use virus protection programmes in accordance with the state of the art;
(f) make regular back-up copies of the data which he transmits to the Licensor via the Software.
14.2 No advertising shall be placed in the Licensed Software. All references to the Licensor’s company by the Customer shall be agreed in writing in advance and approved by the Customer.
14.3 The connection to the Internet with sufficient bandwidth and latency is the responsibility of the customer. In addition, the customer is obliged to ensure the security of the Internet connection used, which means in particular also the use of company-owned instead of public Virtual Private Networks (VPN) as well as ensuring the use of VPN connections in public networks.
15 Warranty
15.1 The Licensor expressly draws attention to the fact that, according to the current state of the art, it is impossible to create software in such a way that it works error-free in all conceivable applications and combinations. The subject matter of the contract is therefore only a product which is basically usable in the sense of the description of the software within the scope of the contract.
15.2 For the reasons stated in 1. above, the Licensor assumes no liability for the Software being completely free of errors. In particular, the Licensor does not warrant that the Software will meet the requirements of the customer or that it will work together with other programs or computers selected by the customer.
15.3 The customer is responsible for ensuring that the system requirements necessary for the software are met. The Licensor shall not be responsible for the condition of the required hardware or software on the part of the customer or for the telecommunication connection between the customer and the Licensor up to the time of handover.
15.4 The Licensor is only obliged to provide a warranty if the software has been handled properly and has not been modified. If the customer has not notified the Licensor of a performance failure, the customer must prove in the event of dispute that the Licensor is otherwise aware of it.
15.5 The customer shall report all occurring errors to the Licensor immediately and in writing.
15.6 The Licensor shall remedy errors in the software which significantly restrict the intended use free of charge within the warranty period, at the Licensor’s option by supplying an improved program version or by providing instructions on how to eliminate or circumvent the effect of the error within the agreed service levels.
15.7 If the delivered hardware is defective, the Licensor may choose between rectification of the defect or delivery of a defect-free item.
15.8 If subsequent performance pursuant to Section 15.7 fails or is unreasonable for the customer or if the Licensor refuses subsequent performance, the customer shall be entitled, in each case in accordance with the applicable law, to withdraw from the purchase contract, to reduce the purchase price or to claim damages or reimbursement of its futile expenses. However, the special provisions of Clause 17 (Liability) of these General Terms and Conditions shall apply to the customer’s claims for damages.
15.9 The warranty period for the hardware is 24 months.
15.10 The customer shall carefully inspect the hardware immediately after delivery. The delivered Hardware shall be deemed to have been approved by the Customer if a defect is not notified to the Licensor (i) in the case of obvious defects within 5 working days after delivery or (ii) otherwise within 5 working days after discovery of the defect.
16 Warranty of Medical Functions
16.1 At the present time, the Software is not a CE-certified medical device and is therefore not currently approved for diagnostics and report generation. The Licensor shall ensure that the lack of approval is clearly indicated to doctors in the Viewer.
16.2 Functions of the software in which artificial intelligence is used (e.g. for the analysis of pathological specimens by means of deep learning / machine learning algorithms) are in part not yet approved for diagnostics and the preparation of findings and only serve to provide support.
17 Liability
17.1 The contracting parties shall be liable to each other without limitation in the event of intent or gross negligence for all damage caused by them or their legal representatives or vicarious agents.
17.2 In the event of slight negligence, the contractual partners shall be liable without limitation in the event of injury to life, body or health.
17.3 In all other respects, a contracting party shall only be liable to the extent that it has breached a material contractual obligation. Material contractual obligations are those obligations which are of particular importance for the achievement of the purpose of the contract, as well as all those obligations which, in the event of a culpable breach, may lead to the achievement of the purpose of the contract being jeopardised. In these cases, liability is limited to compensation for the foreseeable, typically occurring damage. The Supplier’s strict liability for damages (Section 536a of the German Civil Code) for defects existing at the time of conclusion of the contract is excluded; Paragraphs 1 and 2 as well as liability under the Product Liability Act remain unaffected.
17.4 A contracting party is only obliged to pay a contractual penalty if this contract expressly provides for this. A contractual penalty need not be reserved. Offsetting with and against it is permissible.
17.5 Insofar as the Licensor provides technical information or acts in an advisory capacity and such information or advice is not part of the contractually agreed scope of services owed by the Licensor, this shall be done free of charge and to the exclusion of any liability.
17.6 The Licensor shall not be liable for the loss of data and related damage due to faulty backup of the data by the customer.
17.7 The Licensor shall not be liable (irrespective of the legal grounds) for damage that is not typically to be expected in normal use of the hardware.
17.8 The limitations of this Section 17 shall not apply to the Licensor’s liability for guaranteed characteristics within the meaning of Section 444 of the German Civil Code (BGB), for injury to life, limb or health or under the German Product Liability Act (Produkthaftungsgesetz).
18 Reservations of Right to Chance
18.1 The Licensor shall have the right to amend these GTC at any time or to add provisions for the use of any newly introduced additional services or functions of the Software. The customer’s consent to the amendment of the GTC shall be deemed to have been given if the customer does not object to the amendment in text form within a period of two (2) weeks, commencing on the day following the notice of amendment. The Licensor undertakes to point out separately in the notice of amendment the possibility of objection, the time limit for objection, the text form requirement and the significance or consequences of failure to object.
18.2 The Licensor reserves the right to change the Software or to offer different functionalities,
(a) to the extent necessary to bring the Services provided by the Licensor into compliance with the law applicable to such Services, in particular if the law changes;
(b) to the extent necessary to comply with a court or administrative order addressed to it by the Licensor;
(c) to the extent necessary to eliminate security vulnerabilities in the Software; or
(d) to the extent that this is predominantly advantageous for the Customer.
18.3 If the customer objects to a change within the meaning of this clause 15 in due form and time, the contractual relationship shall continue under the previous conditions. In this case, the Licensor reserves the right to terminate the entire contract extraordinarily with one month’s notice.
19 Data Protection
19.1 The contracting parties shall comply with the applicable provisions of data protection law and shall oblige their employees deployed in connection with the contract and its performance to maintain data secrecy, unless they are already under a general obligation to do so.
19.2 If the customer collects, processes or uses personal data, it warrants that it is entitled to do so in accordance with the applicable provisions, in particular the provisions of data protection law, and shall indemnify the Licensor against claims by third parties in the event of a breach.
19.3 The Licensor shall collect and use customer-related data only to the extent required for the performance of this Agreement.
19.4 The obligations under paragraphs 1 to 3 shall continue to exist as long as application data are within the Licensor’s sphere of influence, even beyond the end of the contract.
19.5 If necessary, the contractual partners shall conclude an agreement on the commissioning agreement in accordance with Art. 28 DSGVO.
19.6 In the event of any conflict between this Agreement and the Commissioning Agreement, the latter shall prevail over the former.
19.7 The Licensor reserves the right to use the pathological preparations for Deep Learning / Machine Learning.
20 Confidentiality
20.1 Information to be treated as confidential is information expressly designated as confidential by the party providing the information and such information whose confidentiality is clearly evident from the circumstances of its provision. In particular, prices are to be treated confidentially by the customer.
20.2 No information is to be treated as confidential if the contracting party receiving the information proves that it was
(a) was known to him or generally accessible before the date of receipt;
(b) was known or generally available to the public before the date of receipt;
(c) became known or generally available to the public after the date of receipt without the responsibility of the party receiving the information.
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20.3 The contracting parties shall keep confidential all confidential information that has come to their knowledge within the scope of this contractual relationship or shall only use it vis-à-vis third parties – for whatever purpose – with the prior written consent of the respective other contracting party.
20.4 The obligations under para. 1 shall continue to exist for an indefinite period of time beyond the end of the contract, as long as an exceptional circumstance under para. 2 has not been proven.
21 Force Majeure
21.1 Neither party shall be obliged to perform its contractual obligations in the event of and for the duration of force majeure.
21.2 Force majeure shall mean an event that cannot be prevented or rendered harmless by the utmost care reasonably to be expected in the circumstances. In particular, the following circumstances shall be regarded as force majeure in this sense: fire/explosion/flooding for which one party is not responsible, war, mutiny, blockade, embargo, industrial dispute lasting more than 6 weeks and not culpably caused by one party, technical problems of the internet which cannot be influenced by one party. Each contracting party shall immediately notify the other in writing of the occurrence of a case of force majeure.
22 Other Provisions
22.1 Amendments and supplements to these Terms of Use must be made in writing. This shall also apply to any amendment or waiver of this written form requirement itself.
22.2 The contractual relations between the contracting parties, including all past and future legal relations, shall be governed exclusively by German law, excluding the conflict of laws provisions and the provisions of the United Nations Convention on Contracts for the International Sale of Goods (UN Sales Convention).
22.3 The place of jurisdiction for all legal disputes arising directly or indirectly from contractual relationships based on these GTC is Cologne/Germany. The Licensor shall, however, also be entitled to bring an action at the customer’s registered office, its branch office or at the court of the place of performance.
22.4 Should individual provisions of these GTC and the further agreements made be or become invalid, this shall not affect the validity of the remaining provisions. In place of the invalid provision, the contracting parties undertake to agree on a legally permissible provision or remedy which corresponds to or comes as close as possible to the intended economic success. The same applies to loopholes in the contract.
Status March 28, 2022
