apinity GmbH | Status: 23.11.2023
General Terms and Conditions
These General Terms and Conditions (“GTC”), in connection with the respective Order Form, form a binding Agreement between the Customer (either individual or legal entity) (“Customer”) and apinity GmbH (“apinity”) (Customer and apinity both referred to as “Party” or “Parties”) for the use of any apinity Software-as-a-Service-product (all such products collectively called “apinity Software” or “Software”) available at https://apinity.io.
If this agreement is translated into a language other than English and there is a conflict between the English version and its translation, the English version shall prevail. The Customer is responsible for retaining the version of the GTC in effect at the time of entering the GTC. apinity reserves the right to reasonably modify the GTC from time to time in its sole discretion, provided that disputes arising under the GTC shall be resolved in accordance with the terms of the GTC in effect at the time the dispute arises. apinity will provide reasonable notice to Customer following any modification, and the Customer should review the posted GTC from time to time to be aware of any changes. Material changes to the GTC will be effective upon the Customer’s first use of the apinity Software once the Customer becomes aware of the change. Any use of the apinity Software by the Customer after the effective date of the amended GTC shall constitute the Customer’s acceptance of the amended GTC. If the Customer does not accept the amendments to the GTC, the GTC shall automatically terminate in accordance with Section 8.2. below.
The following definitions set forth in this Section shall apply:
“Agreement” means the GTC, in connection with the respective Order Form, forming a binding agreement between the Customer and apinity.
“Customer Data” means all data (e.g. files, texts, audio, video, pictures, descriptions, personal data), software, applications and any other content and material in any format which is provided by the Customer and which is stored in, run on, processed by or created by the apinity Software or any other service of apinity.
“Incident” shall mean any malfunction of the apinity Software which falls into one of the Priority Levels described under Section 9.4. below.
“Order Form” shall mean the Order Form, with whose signature the customer bindingly places the order at the conditions, terms and service contents selected therein.
“Software” shall mean a subscription based, hosted, supported, and operated Software-as-a-service solution provided by apinity under the GTC which is subject to the provisions in Section 2 of the GTC and which is described and specified in the Order Form and/or price list.
“Subcontractor” shall mean any third-party person, corporation or other entity engaged by apinity for the performance of the Services in relation to the apinity Software.
“Subscription Period” shall mean the term of the apinity Software, as set out in the GTC.
All capitalised terms used in the GTC shall be considered references to those terms as defined in the GTC.
2. apinity Subscription
2.1. Usage Rights
apinity grants the Customer a non-transferable, non-exclusive right to use the apinity Software for its business purposes during the relevant Subscription Period in accordance with the applicable Subscription model as defined in the Order Form. The territory of the right to use shall likewise be specified in the Order Form, insofar as restrictions have been agreed upon.
apinity will make the apinity Software available to the Customer and use commercially reasonable efforts to make the apinity Software available as Service twenty-four (24) hours a day, seven (7) days a week, except for: (i) planned downtime (of which apinity shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond apinity´s reasonable control.
The apinity Software is neither sold nor licensed. In particular, the provision of the apinity Software does not include any exploitation rights, in particular but not limited any right of reproduction (section 16 UrhG), right of distribution (section 17 UrhG), right of exhibition (section 18 UrhG), right of recitation, performance, and presentation (section 19 UrhG), right of making works available to the public (section 19a UrhG), right of broadcasting (section 20 UrhG) or any right of adaptations and transformations (section 23 UrhG).
2.3. Third-party software
3. Invoices, Payment Term, Prices, Taxes
3.1. Invoices Content
Invoices shall be issued in Euro and submitted in digital form to the e-mail address for the receipt of invoices which the Customer has deposited in the Order Form. If the Customer expressly requests an invoice in paper form, a fee of EUR 3.00 / invoice will be charged for paper invoices.
3.2. Payment Term
Unless otherwise stated in the Order Form, the remuneration will be charged monthly at the end of each month and shall be due for payment within thirty (30) days of the invoice date.
3.3. Default Interest
In the event of default in payment (Zahlungsverzug), the Customer shall owe interest at the rate pursuant to Section 288, paragraph 2, BGB.
Unless stated otherwise, any prices published by apinity are stated exclusive of any Value Added Tax (VAT). The Customer shall pay VAT in addition where any VAT becomes due according to the applicable VAT law.
3.5. Price adjustment
The remuneration owed results from the Order Form.
If in the future the “producer price index for services, economic sector data processing, hosting, web portals (WZ08-631)” officially determined by the Federal Statistical Office („Der vom Statistischen Bundesamt amtlich festgestellte Erzeugerpreisindex für Dienstleistungen, Wirtschaftszweig Datenverarbeitung, Hosting, Webportale (WZ08-631)“) increases by at least five percent (5%) compared to the index published for the month of the conclusion of the contract, apinity may demand the change of the Subscription Fee owed in the same percentage ratio.
If the index (WZ08-631) used in this Agreement is discontinued during the term of the Agreement and replaced by another index, this index shall be used accordingly for the question of value protection. In this case, the Parties undertake to agree on a new economically appropriate value protection clause.
apinity does not warrant that the apinity Software stated in the Order Form will be fit for purposes beyond the fulfillment of apinity in line with the GTC.
To the extent that claims for damages or the compensation for wasted expenses are concerned, apinity shall be liable for all damages based on contractual and non-contractual liability in accordance with the following provisions:
(a) In case of willful misconduct, claims under the German Product Liability Act, fraudulent concealment of defects, a guarantee for a certain quality of the apinity Software and in case of injury to life, body, or health, apinity shall be liable pursuant to the relevant statutory provisions.
(b) In all remaining cases, the following provisions shall apply:
(i) In the event of gross negligence, apinity’s liability shall be limited to the compensation of the typical and foreseeable damages.
(ii) In the event of slight negligence, apinity shall only be liable if it has breached a material contractual obligation. In this case, its liability shall be limited to the typical foreseeable damage. ‘Material contractual obligation’ means an obligation which is necessary for the proper performance of the Agreement (deren Erfüllung die ordnungsgemäße Durchführung des Vertrags überhaupt erst ermöglicht) and on compliance with which the other Party usually relies on and can rely (auf deren Einhaltung die andere Partei regelmäßig vertraut und vertrauen darf). In all other cases of slight negligence, apinity’s liability shall be excluded.
(iii) In the event of strict liability (verschuldensunabhängige Haftung) for an impediment to performance occurring during a delay (Verzug), apinity’s liability shall be limited to the typical foreseeable damage.
(iv) apinity’s strict liability (verschuldensunabhängige Haftung) for defects that existed already at the time of conclusion of the respective Agreement according to Sec. 536a, paragraph 1, alt.1, BGB (German Civil Code) is excluded.
(v) Where the liability of apinity is excluded or limited, this also applies to the personal liability of apinity employees, members of staff, representatives, and vicarious agents.
(vi) With the exception of the cases described under Section 5(a) above, all Customer claims for damages or compensation for wasted expenses, shall become time-barred after one year, calculated from the beginning of the statutory limitation period.
6. Data Protection
6.1. Compliance with Statutory Law
apinity and the Customer shall collect, process, and use personal data solely for the purpose of fulfilling the GTC and only in accordance with all statutory laws and regulations (in particular data protection laws) applicable to the Customer and/or apinity.
6.2. Commissioned Data Processing acc. Art. 28 GDPR
If apinity is supposed to collect, process, or use any personal data by commission of the Customer, this shall require the conclusion of a separate written agreement covering the commissioned processing of personal data. apinity offers to conclude such agreement based on the Standard Contractual Clauses of the EU-Commission 2021 at any time.
7. Advertising; Naming as a Reference
apinity is permitted to use the existence of its business relationship with the Customer, including Customer´s name, trademarks, and logo as reference customer, for advertising purposes and for other external communication purposes.
8. Term, Termination
8.1. Term, Termination for convenience
Unless otherwise stated in the Order Form, apinity offers
(i) an annual Subscription of the apinity Software with a 12-month Term (“Initial Term”). Upon expiration of the Initial Term, the term of the Agreement shall renew in defined increments of twelve (12) months (“Renewal Term”), unless a Party terminates the Agreement for convenience with effect to the end of the Initial Term or the respective Renewal Term (as the case may be) by giving an at least three (3) months prior written notice to the other Party.
or (ii) a monthly Subscription of the apinity Software with a one-month Term, each with an automatic renewal for an additional Term unless terminated within one month to the end of the Term.
8.2. Termination for Cause
Either Party shall have the right to terminate the Agreement for good cause.
8.3. Post Termination Assistance
In any case of termination (e.g. termination for convenience, termination for good cause or any other contractual right for termination agreed upon) or expiry of the Agreement apinity shall be obliged to provide the Customer access to Customer Data with the ability to download the Customer Data for a period of at least thirty (30) days after the respective termination or expiration date.
8.4. Deletion of Customer Data
Upon expiration of the period as set out in Section 8.3 above or upon the Customer’s written request, whichever is earlier, apinity shall irrevocably delete all Customer Data and certify the deletion upon the Customer’s request.
9. Service Level, Support
apinity provides the apinity Software in compliance with the service levels outlined below and will provide the support services described. Services due to problems that were not caused by problems or defects of any Service provided (Software, Third-party software or other Services) provided by apinity shall only be provided against separate invoicing at the hourly rates/prices applicable at the time the service is provided.
9.1. Customer Support
The Customer support shall include the availability of a ticketing service, the correction of Incidents and the answering of questions of the Customer’s designated IT staff as described hereinafter.
9.2. Support Service
Support Service is available in accordance with the specifications in the Order Form, if agreed upon.
9.3. Incident Resolution
apinity shall be obliged to maintain the operability of the apinity Software during the respective Subscription Period. Incidents which cannot be solved by the Customer can be reported to apinity via the designated support model.
If an Incident is reported to apinity, apinity shall acknowledge the receipt of the report within the Response Time of the Incident (“Response Time”) and will use reasonable efforts to resolve the Incident within a reasonable period (“Resolution Time”), taking into account the Priority Level of the Incident (“Priority Levels”). apinity shall communicate an identification number for each Incident, which shall be referred to by both Parties to identify the reported Incident.
Calculation of the Response Time and Resolution Time shall begin with apinity’s receipt of the Incident report of the Customer. “Response” shall mean the first non-automated reply to the Incident from the designated support. “Resolution” shall mean the point in time where the reported malfunction is not observable anymore.
9.4. Service Levels for Incident Resolution
Incidents will be classified into Priority Levels and solved according to the respective Priority. Priority Levels and respective Response/Resolution times are set forth in the Order Form.
9.5. Customer Obligations
The Customer shall report any Incident to apinity without undue delay.
9.6. Service Level for Availability
apinity shall provide with respect to the apinity Software an Availability of 99.9% per calendar month. “Availability” means the time (measured in minutes) during which the delivery of API requests through the apinity Software is successful in productive environments without Downtimes. This Availability obligation does not apply to test and staging environments. “Downtimes” shall mean the total minutes in a calendar month during which the apinity Software fails to process API requests as intended, which constitutes a Priority Level 1 Incident.
The following unavailability of the apinity Software shall not qualify as Downtimes:
- Scheduled downtimes of the apinity Software (e. g., for maintenance purposes). apinity shall inform the Customer at least fifteen (15) calendar days in advance of a scheduled downtime.
- Downtime caused by the Customer’s use of the apinity Software after apinity recommended a change in use to the Customer and the Customer does not follow this recommendation.
- Downtime caused by a component not managed by apinity, including but not limited to Customer-controlled physical and virtual machines, Customer-installed and maintained operating systems, Customer-installed and controlled network devices or other hardware, Customer-defined and controlled security settings, group policies and other configuration policies, Customer-responsible network or ISP-related failures, and other failures and disruptions due to other Customer managed factors beyond apinity’s control.
- Failures caused by the Customer’s employees, agents, contractors or suppliers, or others gaining access to the Customer’s passwords or equipment or resulting from the Customer’s failure to comply with reasonable security measures.
- Service interruption due to force majeure, including but not limited to natural disasters, war or acts of terrorism, or governmental action.
Availability percentage is calculated as follows: Availability percentage = Total minutes of a respective calendar month minus Downtime, the result is divided by total minutes in a calendar month, the result is multiplied with hundred (100).
10.1. Applicable Law
The GTC are subject to German law with exception of its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG) shall not apply.
10.2. Place of Jurisdiction
The exclusive place of jurisdiction for all disputes arising from or in connection with the GTC shall be Munich, Germany.
10.3. Severability Clause
If a provision of the GTC should be or become invalid or be inadvertently incomplete, the validity of the other provisions of the GTC shall not be affected thereby.
No Party may assign or transfer all or any part of its right and obligations under the GTC to a third party without the prior written consent of the other Party, provided that apinity may assign its rights and obligations under the GTC to an acquiring party as part of a M&A transaction without the need for a written consent of the Customer, provided that apinity has notified the Customer with three (3) months prior written notice thereof.