Phoenix Mecano Solutions AG (hereinafter referred to as “Service Provider”) provides the web-based software solution setago.app to the client for the creation, management, and use of digital work instructions (“Software”). The use of the Software and the provision of supplementary services (“Services”) are subject to these General Terms and Conditions (“T&Cs”).
2.1 The Service Provider grants the client, for the term of the contract and subject to the condition precedent of full payment of the agreed fee, the fee-based, worldwide, non-exclusive, and non-transferable right to use the Software as intended. The client may use the Software only within the scope of the contractual provisions. The client does not obtain a right to the source code of the Software. The Client may use the Software only for its own purposes. The use for own purposes includes the authorized use of the products for general business purposes of the client and the processing of the client's data. The use of the products for third parties, such as in the capacity of Service Provider or any other transfer or provision for use by third parties, is not included.
2.2 The client has the right to have the Software used by its employees or by third parties for its own purposes. The client shall create an admin user account as part of the initial setup. The admin user can then create standard user accounts. Accordingly, the Software may only be used by the number of users agreed in the respective order (“Named User License”). The client shall keep a record of the respective authorized users. The client is responsible for the use of the Software by its users and all damages caused by negligent or intentional breaches of duty by its users.
2.3 Unless otherwise agreed, all rights to Software and Services provided by the Service Provider or developed under this Agreement shall be vested solely in the Service Provider. All rights to any modification, development, or improvement of the products or services carried out by or on behalf of the Service Provider shall be held exclusively by the Service Provider.
2.4 The Software may contain open-source software components. The use of these components is exclusively subject to the corresponding terms of use of the open-source software components transmitted and/or referenced within the scope of the open-source software components. No provision of this Agreement 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 any contradictions or conflicting provisions between the license terms of the open-source software and the provisions of this Agreement, the license terms of the open-source software shall prevail.
2.5 The right to use the Software also extends to fixes, patches, developments, and updates the Service Provider makes available to the client. The right to updates does not include the right to a usage right to new/additional products and functionalities that are provided as a separate product/module.
2.6 The Service Provider shall provide the Software and detailed documentation of the Software in electronic form in German and English.
2.7. The Service Provider has the right to delete accounts of the free “COMPLIMENTARY PACKAGE” after a reasonable period if they are not used.
2.8 Unless otherwise agreed or required by mandatory law or applicable open-source software terms of use, the client is not entitled
(a) to copy the Software beyond what is necessary for the contractual use, neither as a whole nor in part;
(b) to modify, correct, adapt, translate, improve the Software or otherwise make derivative developments to the Software;
(c) to lease, lend, sell, license, transfer, or otherwise make the Software accessible to third parties;
(d) to reverse engineer, decompile, disassemble, or otherwise attempt to decipher the source code of the Software, neither as a whole nor in part;
(e) to circumvent or to breach any security devices or protection mechanisms contained in or used for the Software;
(f) to take measures that are capable of causing damage to the Software or to the servers of the Service Provider;
(g) to remove, delete, obliterate, alter, obscure, translate, combine, supplement or otherwise modify any trademarks, documentation, warranties, disclaimers or other rights, such as intellectual property, marks, notices, labels, or serial numbers associated with the Software or documentation;
(h) to use the Software in a way that infringes applicable law and/or the rights of third parties;
(i) use the Software for the purpose of benchmarking or competitive analysis of the Software, for the development, use, or provision of a competing software product or competing service or for any other purpose that is detrimental to the Service Provider; and/or
(j) to use the Software 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 Software in a manner that could result in physical harm or serious property damage.
3.1 The client shall support the Service Provider in the provision of the contractual services to a reasonable extent. The client shall provide in advance, without being requested to do so, all participation services, information, data, files, and materials that are necessary for the Service Provider to fulfil its contractual obligations. If the client should fail to cooperate to a sufficient extent and/or cause delay, the Service Provider shall not be under any obligation to fulfil the contractual obligations for as long as and to the extent that the Service Provider is prevented from fulfilling the contractual obligations due to insufficient and/or delayed cooperation by the client. The Service Provider shall inform the client of its failure to cooperate in a satisfactory or timely manner and shall set a reasonable deadline for subsequent performance. If the client still does not fulfil its obligations to cooperate, any resulting increases in remuneration, additional expenses (e.g. extra work, cancellation costs, travel expenses), and postponements of deadlines that the Service Provider cannot avoid shall be borne by the client. After the unsuccessful expiry of the grace period, the affected Software or the affected Service shall be deemed to have been provided or rendered.
3.2 The client is responsible for
(i) appropriate security processes, tools, and controls for systems and networks that interact with the Software,
(ii) ensuring that the minimum requirements specified at docs.ambos.io are met by the client,
(iii) determining whether the technical and organizational data protection and data security measures provided by the Service Provider meet the specific requirements of the client;
(iv) the appropriate internal training of users and the provision of internal technical support; and
(v) the proper backup of all programs and data located on its system environment and of all data and work results transferred to the Software or created with the Software at the beginning of the use of the Software and subsequently at reasonable regular intervals.
4.1 Unless otherwise agreed, Services shall be invoiced based on expenses (“Time and Material”) at the end of the calendar month in which they are rendered. Invoicing shall be based on the Service Provider's timesheets. Unless otherwise agreed, reasonable travel expenses shall be borne by the client at cost and against receipt and invoiced monthly.
4.2 If employees of the Service Provider are on the premises of the client, they shall comply with safety instructions issued by the client. For this purpose, the client shall send these instructions in writing to the Service Provider in advance.
4.3 The Service Provider reserves all rights to technical work results created during the provision of Services. This includes, in particular, software/code, interfaces, methods, processes, and templates used, created, or modified by the Service Provider. The Service Provider grants the client a non-exclusive, non-transferable right to use such work results for its own purposes in accordance with section 2.1 of these T&Cs.
4.4 Work results created by the Service Provider as part of the provision of Services for the Client, in particular customizing/modification of the Software, are not covered by the standard support unless these work results are incorporated into the standard Software. In principle, such work results can only be used with the respective version/release of the software current at the time the work results were created. Any upgrade or update may require additional chargeable migration services.
5.1 Software and Services Software and Services shall be provided or rendered by the Service Provider free of defects and, when used as intended, shall essentially comply with the specifications stated in the documentation. The Service Provider's Services shall be rendered competently and professionally by trained and experienced personnel in accordance with industry standards. The granting of the agreed rights of use to the client does not conflict with any third-party rights. Technical data, specifications, and performance details in public statements, particularly in advertising material, do not constitute information on quality.
5.2 In the event of defectiveness, the client's entitlement to claim for defects shall initially be limited to the rectification of the fault. The client shall notify the Service Provider in writing of any defects that arise, including a description of the defect, and request that the defect be remedied. In the event of proven defects, the service provider shall provide a warranty by means of subsequent performance in such a way that it provides or renders the Software or the Service again in a defect-free condition or eliminates the defect.
5.3 If subsequent performance finally fails after two attempts to remedy the defect(s), the client may withdraw from the respective individual contract or reduce the remuneration appropriately. The Service Provider shall provide compensation for damages or reimbursement of wasted expenses due to a defect within the liability limits set out in these T&Cs.
6.1 The Service Provider shall provide free support (standard) by e-mail to the client during regular business hours. Enquiries are usually dealt with within six working days. The Service Provider does not have any obligation to provide support for the free “COMPLIMENTARY PACKAGE”.
6.2 To use the Software, the client requires a current standard web browser (Google Chrome, or Mozilla Firefox). The client is responsible for the provision and operation of all hardware and operating software as well as for the secure and fast connection of the IT terminal equipment to the server on which the Software and the work specifications are implemented.
6.3 Unless expressly agreed otherwise, setup/installation and configuration of the Software shall be remunerated in accordance with the hourly rates for Services agreed in the respective individual order.
6.4 Software and other work results are deemed to have been handed over as soon as they have been made available to the client. Services are deemed to have been provided as soon as the respective service has been completed. Support/maintenance, if applicable, are deemed to be provided on a pro-rata monthly basis as time elapses.
6.5 Unless otherwise agreed, Software and Services are not subject to separate acceptance by the client but are deemed accepted upon handover. If acceptance has been contractually agreed upon and the client has not complied with the time schedule or test plan for acceptance, or if there is no such test plan or time limit for testing and acceptance, the Software and Services shall be deemed to have been accepted ten working days after handover.
6.6 The Service Provider is entitled to use subcontractors or other vicarious agents (collectively referred to as “Subcontractors”) in order to fulfil the contractual obligations. The Service Provider shall ensure that Subcontractors are bound by confidentiality and data protection obligations in accordance with this Agreement. The commissioning of Subcontractors shall not affect the Service Provider's contractual obligations vis-à-vis the client. The Service Provider shall be liable for any poor performance by a Subcontractor as if it were the Service Provider's own fault.
6.7. Within the scope of the free version “COMPLIMENTARY PACKAGE”, changes to the terms of use and the scope of service of the Software are permissible at any time.
Software shall be invoiced annually or monthly in advance upon delivery unless otherwise agreed. The client shall pay invoices within 30 days of the invoice date without discount or other deductions. Unless otherwise agreed, the specification of a Purchase Order number on the invoice is not a prerequisite for the payment obligation. In the event of default in payment, the Service Provider shall be entitled to suspend the contractual services, in particular, to block access to the Software, and interest on arrears shall be due at the statutory rate. The prices quoted do not include VAT or other taxes. These will be invoiced separately to the client, if applicable.
8. Restriction of Liability
8.1 The Service Provider shall only be liable for ordinary negligence, both for its own conduct and for attributed conduct, insofar as material contractual obligations (cardinal obligations) have been breached. In this case, the liability is limited to damage that is typical for the contract and foreseeable. Material contractual obligations are obligations the breach of which jeopardizes the achievement of the purpose of the contract, the fulfilment of which makes the proper performance of the contract possible in the first place and on the performance of which the client relies on a regular basis.
8.2 For the cases of limited liability mentioned above, such liability is additionally limited to EUR 500,000 per contract year.
8.3 The Service Provider 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.
8.4 The limitations of liability do not apply to claims due to intent and gross negligence, in the case of personal injury, in the case of fraudulent intent, insofar as the Product Liability Act applies, as well as to damages that fall within the scope of protection of an independent guarantee, quality or durability guarantee given by the Service Provider, insofar as nothing to the contrary arises from the respective guarantee agreement.
8.5 If the client breaches the obligation incumbent upon him to properly back up data, the client's liability in the event of data loss shall be limited to the level of damage that would have occurred even if the client had properly and regularly backed up the data.
9.1. Each of the parties undertakes to treat the following information as confidential and use such information exclusively for the purposes of the contractual cooperation and to protect it from being disclosed to unauthorized third parties: all information received within the scope of the contractual cooperation which (a) is marked as “confidential” or “secret” or with an equivalent indication, or is verbally designated as confidential; (b) is to be regarded as confidential by virtue of its content; or (c) is derived from confidential information which has been made available. This confidentiality obligation shall be imposed on all persons entrusted with implementing this agreement.
9.2 Information which (a) is publicly available or subsequently became publicly available 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 judicial orders (in this case, the party concerned must be informed thereof without undue delay) shall be exempt from the confidentiality obligation.
10.1 Within the scope of the use of the Software, personal data of the users of the Software may be processed. The client is the Controller, and the Service Provider is a Processor. This processing is governed by the Commissioned Processing Agreement between the client and the Service Provider, which is available at https://setago.io/de/auftragsverarbeitung and expressly incorporated into these T&Cs and into the agreement between the parties.
10.2 The Service Provider is 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 personal data required for this purpose.
10.3 With regard to the processing of the data concerning the contact persons of the client, attention is drawn to the Privacy Policy on the Service Provider's website.
11.1 Unless otherwise stipulated in the respective individual order, the respective agreement shall have a term of 12 months. Unless otherwise stipulated in the respective individual order, the respective agreement shall always be extended by a further 12 months in each case unless it is terminated in writing at least three months before the end of the respective term. The respective agreement concerned may be terminated by either party exceptionally without notice at any time in the event of a material breach of contract by the other party if the breach of contract is not remedied within 30 days. This period shall commence from the date of delivery of the written notice of material breach of contract. The Service Provider may terminate the agreement at any time without notice if the client is winding up or liquidated or takes steps to this end and/or if the client becomes bankrupt or insolvent.
11.2 The Service Provider may adjust the prices for the use of its services, supplies and performances during the respective term of the agreement. The Service Provider shall inform the client of any price adjustment two months before it comes into force. In the event of an announcement of a price adjustment by the Service Provider, the client shall have a special right of termination until the end of the month before the price adjustment would come into force. The Service Provider shall draw the client's attention to this special right of termination within the scope of the above-mentioned information. The Service Provider will not exercise its right to adjust prices unreasonably. We may adjust the price of our licenses at our reasonable discretion to reflect the effect of any changes in the total costs associated with our service. Examples of cost elements that affect the price of our licensed offerings include production and licensing costs, costs of technical provision and distribution of our service, customer service and other costs of sale (e.g. billing and payment, marketing), general administrative and other overhead costs (e.g. rent, interest, and other finance costs, costs of staff, service providers and Services, IT systems, energy), and government-imposed fees, contributions, taxes, and duties.
12.1 This agreement is subject to Swiss law. In the event of disputes arising from this agreement, the parties undertake to reach an amicable settlement in the first instance. If this not be possible, the parties agree already at this point on the place of jurisdiction as CH-8260 Stein am Rhein, Switzerland. The Service Provider may also bring an action before the court at the client’s registered office.
12.2 The Service Provider has the right to publicly express the fact that the client uses the Setago.app software and/or is a client of the Service Provider and to use the name and logo of the client for this purpose in the Service Provider's marketing materials, including on the Internet. Any other use of the client's name or logo requires the client's prior consent.
12.3 Any ancillary agreements must be in writing. If individual parts of this agreement should be invalid, this shall not affect the validity of the remaining provisions of the agreement. All notices under this agreement must be in writing and shall be effective upon first delivery.
12.4 The Service Provider is entitled to transfer its rights and obligations under this agreement to a third party (transfer of agreement) provided that the transfer of the agreement does not adversely affect significant interests of the client, for example, if the third party does not offer sufficient guarantee for the fulfilment of the contractual obligations. In the event of such a transfer of agreement, the Service Provider shall inform the client electronically and with reasonable notice in advance of the transfer of the agreement and the new contractual partner and shall grant the client a right of objection in the event that serious interests of the client could be impaired.
12.5 The Service Provider may make changes to these T&Cs 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, and if these changes are not unreasonable for the client. The Service Provider shall inform the client of the changes in electronic form within a reasonable period, at least one month, before the changes come into force. The client is entitled to object to such changes within 14 days of receipt of the amendment notification. In the event of an objection by the client, the Service Provider has the right to terminate the contractual relationship extraordinarily without observing a notice period. If the client does not object, the client's consent shall be deemed to have been granted after the expiry of the above-mentioned deadlines. The Service Provider shall expressly point out the duration of the period and the significance of its expiry without result when announcing the changes to these T&Cs.
Version: 10.10.2022
