These Terms of Use and any terms of an Order Form (defined below) are collectively referred to as the "Terms" or "Agreement" and together constitute an agreement between INTECH Automation & Intelligence GmbH ("Company") and Customer as specified in an Order Form ("Customer"). The Company and the Client may be referred to independently as a "Party" or collectively as the "Parties".
By signing an Order Form or accessing the Services (defined below), Customer agrees to be bound by the Terms.
- Definitions
- Services. The products, consulting or professional services, support services, documentation, guides, and technical resources that the Company provides to the Customer.
- Order form. Written document detailing the services that Customer wishes to purchase, the fees or charges associated with them, and any other terms and conditions agreed between the parties.
- Authorized user. Any person authorized by Customer to access or use the Services on behalf of Customer for Customer's business. An Authorized User must create an account through which they can access the Services. Each account is unique to one (1) authorized user, and account sharing is strictly prohibited. The number of authorized users is listed on the order form.
- Representative. Any employees, independent contractors, agents, attorneys, authorized users, or other representatives of any of the parties.
- Effective Date. The date, as specified in the Order Form, on which the Customer can begin accessing the Services and on which these Terms come into effect.
- Access and use of the Service
- Access and Use. Subject to these Terms of Use and any terms and conditions of an Order Form, Company grants Customer a non-exclusive, non-sublicensable, non-transferable right during the Term (defined below) to access and use the Services and any related documentation provided by Company to support Customer's use of the Services.
- Updates and Changes. The Company reserves the right to update, update, or modify the Services at any time without prior notice to Customer. Company will use commercially reasonable efforts to notify Customer of any updates, upgrades, modifications, or downtime of the Services through channels such as email, website, or within the Services themselves.
- Company access for customer support. From time to time, and only when strictly necessary, the Company reserves the right to access the provision of the EmpowerGPT application by the Customer for the purpose of troubleshooting and/or resolving technical issues.
- Third-party services
- The Services may connect or integrate with third-party applications or service providers to enhance the customer's product experience. Such integrations are provided at the Company's sole discretion and may be suspended or terminated at any time. In the event of an expected suspension or termination, the Company will endeavor to inform the Client with reasonable notice.
- Connecting or integrating with third-party applications or service providers may result in the transfer of data, content, or information to and from the services provided by the Company. The Client expressly grants the Company the right to transmit and receive such data, content and information from the relevant third-party applications or service providers.
- The Company is not a party to any agreements entered into by the Customer with such third-party applications or third-party service providers, and it is the Customer's responsibility to maintain the relevant agreements.
- Propery and rights
- Property and rights of the company. The Services, Content, Documentation, all modifications, enhancements, enhancements, derivative works, and all copyrights, service marks, trademarks, patents, trade secrets, and other intellectual property rights shall be the exclusive property of the Company or any third-party service providers employed by the Company. This also applies to any changes, improvements, enhancements, or derivative works made as a result of feedback from Customer and anyone associated with Customer. Customer shall not have the right to copy, modify, transfer, reverse engineer, or create derivative works of the Services or Company's property.
- Customer's property and content. The data, content, or information uploaded by Customer to the Services or submitted to Company or its approved third-party service providers in connection with the Service is the property of Customer. Customer Property and Content also includes any data, content, or information transferred to or from the Services through Customer's integration with a third-party application or third-party provider, as described in Clause 3. Customer expressly grants Company a limited and non-exclusive right to collect, store, and use Customer's property and content to maintain, improve, and expand its Services.
- Application usage data. The Company reserves the right to collect data relating to the Customer's use of this Application, such as the time spent in the Application, interactions with the user interfaces of the Services, or software bugs, to name just a few data. This data is collected for the purpose of maintaining, improving and expanding the Services.
- Client expressly grants Company the right, revocable by Client at any time, to use Client's name, logo and trademarks in any marketing or PR communications, including, but not limited to, Company's website, public publications, brochures, presentations and other such marketing materials or communications.
- Accuracy
Artificial intelligence and machine learning are rapidly developing research areas. We are constantly working to improve our Services to make them more accurate, reliable, secure, and useful. Given the probabilistic nature of machine learning, in some situations, the use of our services may result in an output that does not accurately reflect the actual facts. When you use our Services, you understand and agree that the output may not always be accurate. You need to evaluate the output and consider checking it with the quotes provided.
- Customer Responsibilities
- Restrictions on Use. Customer and its Authorized Users shall not (i) permit any person other than Authorized Users to access or use the Services, each of which will have individual access that may not be shared with any other person; (ii) modify, alter, copy, or reverse engineer the Services; (iii) resell, rent, lease, sublicense, or include the Services in a service bureau or outsourced offering; (iv) use the Services to enter, upload, or store any unlawful or harmful or harmful information, including, but not limited to, computer code, files, agents, scripts, and programs; (v) create derivative works of the Services, including those that may directly compete with the Services.
- Export control. Customer represents and warrants that the use of the Services by Customer and its Authorized Users is solely for civilian purposes and is not intended, directly or indirectly, for the production of chemical or biological weapons or precursor chemicals for such weapons, or for any direct or indirect nuclear end-use. The Customer agrees not to disclose, use, export or re-export, directly or indirectly, any information provided by the Company or the "direct product" thereof within the meaning of the export control regulations of the Federal Republic of Germany, except in accordance with these regulations.
- Expression
- Expression. The Term is the duration of the Subscription Term as specified in the Order Form and commences on the Effective Date. These Terms of Use are effective from the Effective Date until the end of the Term as specified in the first Order Form, and will be supplemented by each subsequent Order Form.
- Renewal. Unless notified in writing by Customer or Company and at least fourteen (14) days prior to the expiration of a Subscription Term, the Order Form will automatically renew for the same duration as the previous Subscription Term.
- Payment and taxes
- The Client agrees to pay the Company all fees and charges as specified in the relevant Quotation. These fees and charges are non-refundable unless expressly stated otherwise by the Company in writing.
- The Company reserves the right to change its fees and charges at any time. However, such changes will be notified at least thirty (30) days prior to renewal for each customer with a valid Order Form and will only apply upon renewal or commencement of a new Order Form.
- Payment by invoice is due within thirty (30) days of the date of invoice, unless expressly stated otherwise in the Order Form.
- If the Client fails to make a payment in accordance with the terms of clause 6.3, the Company reserves the right to suspend the provision of Services until such time as payment has been made.
- All fees and charges are exclusive of federal, state, municipal property, licensing, privilege, sales, use, excise, gross receipts, value-added tax, and other similar taxes. If the Company or its suppliers and agents are required to pay or collect taxes on behalf of Customer, Customer agrees to pay or refund such taxes. If the Client is exempt from paying any tax, he must provide the Company with a copy of such certificate in a form acceptable to the relevant government authorities at the time of ordering.
- Confidentiality
- Confidential Information. Confidential Information means any non-public information disclosed orally or in writing by one party ("Disclosing Party") to the other party ("Receiving Party") that can reasonably be considered confidential, such as these Terms and all terms of an Order Form, business and product roadmaps and roadmaps, software diagrams, business and technology partner information, financial information, technical information, business processes, pricing information, and sales and marketing plans.
- Duty of care. The Receiving Party will take all necessary and appropriate measures to protect the Confidential Information it receives from the Disclosing Party from disclosure, except as expressly permitted by the terms of this Agreement. The Parties agree that such safeguards shall not be less than those employed by the receiving Party to prevent the unauthorized use, dissemination or disclosure of its own most valuable confidential and proprietary information, provided that such care shall not be less than a reasonable level of care. The parties further agree that the Confidential Information received by the receiving party or its representatives will not be used for any purpose other than the purposes of these Terms. The parties further agree that Confidential Information may be disclosed only to those representatives of the receiving party who have a need to know such information. Prior to such disclosure to its representatives, the Receiving Party agrees that (i) its representatives must be informed of the confidentiality of the Disclosing Party's Confidential Information and obtain the agent's consent to be bound by the terms of these Terms as if they were an original party thereto; (ii) the receiving party must be responsible for any breach of this Agreement by any of its representatives; (iii) The receiving party shall not disclose Confidential Information to any third party who is not an agent without the prior written consent of the disclosing party.
- Exceptions. Confidential Information does not include information that (i) is or becomes generally available to the public without the receiving party or its agents violating these Terms, provided that such general public availability is not the result of unlawful disclosure by the receiving party or its representatives; (ii) the receiving Party or its representatives at the time or before their disclosure by the Disclosing Party under these Terms; (iii) becomes known to the receiving party or its agents on a non-confidential basis from a source other than the disclosing party or its representatives; provided, however, that the third party providing the information is not bound by any confidentiality agreement with the disclosing party or is otherwise legally bound by law to transmit the Confidential Information; (iv) has been independently developed by the receiving Party or can reasonably be demonstrated to have been developed.
- Forced disclosures. In the event that the Receiving Party or its representatives receive a court request for disclosure of Confidential Information received from the Disclosing Party, it is agreed that the Receiving Party or its representatives shall promptly notify the Disclosing Party in writing so that the Disclosing Party may seek a protective order or other appropriate remedy or seek compliance with the provisions of these Terms . In the event that such protective order or other appropriate remedy is not obtained, or if the disclosing party waives its failure to comply with the provisions of these Terms, the receiving party agrees that it and its agents will provide only that portion of the confidential information or other information that the receiving party's legal counsel considers the receiving party to be the receiving party for disclosure obliges or otherwise incurs liability for non-compliance or suffers any other censorship or punishment. The receiving party must endeavor to obtain a reliable assurance that the disclosed confidential information will be treated confidentially.
- Guarantees
- Each party represents and warrants that it has the authority to enter into this Agreement and that its obligations under the Agreement do not violate any agreement with any third party.
- The Company warrants that (i) it owns the Services and has the right to license them to the Customer; (ii) it will provide the Services in accordance with recognized industry standards and practices; (iii) the Services have been developed and provided in accordance with applicable law.
- Customer warrants and understands that it and its agents are solely responsible for the use of the Services and any action taken pursuant to the Services.
- Except as expressly set forth herein, the Services are provided "AS IS" and the Company disclaims all warranties, express or implied, including warranties of merchantability, fitness for a particular purpose, accuracy, quality, and non-infringement. The Company does not warrant that the Services will be error-free, secure, or uninterrupted.
- Compensation
- To the fullest extent permitted by law, Customer agrees to indemnify and hold harmless Company and its directors, officers, employees, or other representatives from and against any and all claims, damages, losses, and expenses, including, but not limited to, attorneys' fees, arising out of or as a result of any third-party claim arising out of Customer's use of the Services in violation of this Agreement or any violation of applicable laws or the rights of the customer are based on third parties.
- To the fullest extent permitted by law, the Company agrees to indemnify and hold harmless the Client from any claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from the claim made by a third party that the Client's use of the Services infringes such third party's intellectual property rights. This indemnification shall not apply (i) if Customer has breached any other provision of this Agreement; (ii) have modified the Services in any way without the express written consent of the Company; (iii) has violated any applicable law; (iv) or in relation to Customer's property and content.
- Severability
- If any of the provisions of this Agreement are invalid, illegal or unenforceable for any reason, the validity of the remaining provisions shall not be affected and these Terms shall be construed as if such invalid, illegal or unenforceable provision or any part thereof had never existed.
- If any provision of this Agreement is found to be too broad, invalid or unenforceable, a court may modify or sever these Terms, such modification or deletion shall apply only with respect to the application of these Terms in the particular jurisdiction in which such decision is made. If any of the provisions contained in this Agreement are found to be too broad in terms of duration, geographic scope, activity, or subject matter, it shall be construed as limiting and reducing it to such an extent that it is enforceable to the extent that it is consistent with the applicable law as it then appears.
- Remedies and injunctive relief
- Customer acknowledges that any remedy for a breach or threatened breach of the terms of this Agreement would be inadequate and that Company shall be entitled to injunctive relief in the event of such breach or threatened breach. The Client acknowledges and agrees that a breach of this Agreement would cause irreparable harm to the Company. The Company's right to injunctive relief is cumulative and in addition to any other remedies available at law or in equity. In the event that a court finds that the Contractor has violated or threatens to violate this Agreement, Customer agrees to reimburse the Company for all attorneys' fees and costs incurred in enforcing the terms of this Agreement. However, nothing in this document shall be construed as prohibiting the Company from seeking any other remedies available for such breach or threatened breach against the Client, including, but not limited to, contract damages, lost profits, and punitive damages.
- Disputes and Arbitration
- In the event of a dispute, the parties will attempt in good faith to resolve the dispute promptly through negotiations between representatives authorized to resolve the dispute. If this fails, the parties will try in good faith to resolve the dispute through non-binding third-party mediation, with the fees and costs of such mediation divided equally between each party.
- If mediation fails, the dispute will be finally settled by arbitration proceedings before a single neutral arbitrator (for an amount in dispute up to EUR 100,000.00; for an amount in dispute of more than EUR 100,000.00 by three arbitrators) in accordance with the Arbitration Rules of the German Institution of Arbitration (DIS) under exclusion of the ordinary legal process. The arbitrator must be a person with experience in intellectual property and software development and licensing. The place of arbitration is Munich. The law applicable in the matter is the law of the Federal Republic of Germany, to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
- Both parties undertake to treat any disputes and arbitration proceedings confidentially.
- Force majeure
- Except for payment obligations, neither party shall be liable for any delay or failure to perform its obligations under this Agreement due to any cause beyond the reasonable control of the party, including governmental actions, acts of war or terrorism, pandemics, fires, floods, earthquakes or other natural disasters, labor strikes, riots, embargoes, blockades, power outages, and other such events occurring outside of the control of the party.
- Limitations
- Except for the (i) indemnification obligations set forth in this Agreement; (ii) confidentiality obligations under clause 8; (iii) ownership and rights obligations set out in clause 3; and (iv) Customer's obligations set forth in Clause 4, neither party shall be liable for any consequential damages, including, but not limited to, loss of data, lost profits, loss of use, business interruption, and cost of substitute products or services, arising out of the terms of this Agreement.
- Except for the exclusions set out in Clause 15.1, the Company's maximum liability arising under the terms of this Agreement shall not exceed the amount of any fees or charges paid by the Client to the Company in the twelve (12) months preceding the first occurrence of the event giving rise to such claim.
- Relationship between the parties
- This Agreement does not in any way create any employment, partnership, joint venture, or representation between the parties.
- Waivers
- Failure to enforce any term or provision of this Agreement shall not be deemed a waiver of any other term or clause.
- No provision or clause of this Agreement may be waived without the express written consent of both parties.
- Applicable law
- This Agreement shall be governed by and construed in accordance with the laws of the Federal Republic of Germany, to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
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