General Terms and Conditions of SayWay GmbH (hereinafter referred to as SayWay) as of 21 April 2021

 

§ 1 Subject matter of the contract and validity of the General Terms and Conditions

1. SayWay offers customers a feedback system, i.e. terminals that collect customer feedback. For this purpose, the customer is provided with hardware in the form of steles with an integrated tablet (“Hardware“) against payment of a fee. Customers can purchase or rent the Hardware. The selected contract type is specified in the order form. In the case of rental, the Special Terms and Conditions for the Rental Model (§10) apply, which take precedence over the other General Terms and Conditions in the event of contradictions. In addition, software is provided to the customer for a limited period of time in the form of a cloud service for the collection of feedback data (“Software“) in exchange for a fee. The combination of Hardware and Software is hereinafter referred to as the “SayWay Product“. Furthermore, SayWay offers the customer various services in connection with the provision of SayWay Products (“Services“).
2. These General Terms and Conditions apply to all contracts for the provision of SayWay Products and Services between SayWay and the customer.
3. The customer’s General Terms and Conditions shall only become part of the contract if this is expressly agreed in writing.

 

§ 2 Conclusion of the contract

1. The offers of SayWay are always subject to change.
2. With his or her order, the customer bindingly declares that he or she wishes to use the SayWay Products and/or the Services of SayWay (contract offer of the customer). The contract between the customer and SayWay comes into effect when SayWay agrees to the contract offer of the customer in writing.
3. Customers can also book additional Services offered by SayWay at a later date. The contract for such further Services comes into effect through confirmation by SayWay or through the provision of the booked Service.

 

§ 3 Services of SayWay

1. The exact scope of the SayWay Products and Services to be provided by SayWay depends on the Service description valid at the time the contract has been concluded. The customer can also book additional Services during the term of the contract.
2. Hardware delivery
   • a. Hardware is delivered by dispatching it to the address specified in the order form. The customer shall bear the shipping costs. With the handover of the SayWay Products to a carrier or shipping company determined by SayWay, the risk of accidental loss or deterioration of the products shall pass to the customer (this does not apply in the rental model).
   • b. Set-up, installation or establishment of technical operability are not the subject of this contract. At the request of the customer, a separate agreement can be made regarding further Services of the provider.
3. Software
   • c. SayWay gives the customer access to the Software, which is operated as a web-based SaaS or cloud solution, for a limited period of time, i.e.the term of the contract agreed in the order form. The place of the transfer of services is the router exit of the data centre. The customer must independently ensure that he or she is able to receive the service. The customer has no claim to access the source code of the Software provided by SayWay. The customer is responsible for operating the Software.
   • d. The owed average availability of the Software is 99% on a monthly average, i.e. the Software can be unavailable for up to 7.5 hours per month. This does not include necessary planned maintenance work and disruptions that are not within the sphere of influence of SayWay, in particular force majeure. As far as possible, SayWay will inform the customer about planned maintenance work in good time and in text form. However, SayWay expressly reserves the right, if necessary, to also carry out unannounced maintenance work, in particular if this is necessary for data and/or operational security.
   • e. The Software is intended for the Software environment authorised by SayWay. SayWay is not responsible for its functionality in a Software environment other than the authorised one.
   • f. SayWay carries out daily backups of the data the customer stores in the Software, which are kept for three days. An individual check of the correctness and completeness of the backups does not take place and is not owed.
   • g. SayWay provides the customer with a Software documentation as well as instructions for its use in electronic form in German and/or English online. The customer is not entitled to edit, distribute or make publicly available the documentation or instructions for use. A printed documentation is not owed.
   • h. SayWay is entitled, at its own discretion, to commission subcontractors as vicarious agents for the provision of services.
   • i. SayWay can change the functional scope of the Software at any time to an extent that is reasonable for the customer. The change is reasonable, in particular, if it becomes necessary for an important reason – for example due to disruptions in the provision of services by subcontractors or for safety-related reasons – and the performance characteristics defined in the service description as well as the main performance obligations of SayWay essentially remain intact. If the changes do not exclusively concern extensions of the function or not only insignificant components of the services to be provided by SayWay, SayWay shall inform the customer of the change by email at least four weeks before it comes into force.
   • j. SayWay is entitled to block the customer’s access to the Software if
     • i.there are indications that the customer’s access data has been or is being misused or that the access data has been or is being provided to an unauthorised third party or that access data is being used by more than one natural person;
     • ii.there are indications that third parties have otherwise gained access to the Software provided to the customer;
     • iii. the blocking is necessary for technical reasons;
     • iv. SayWay is legally, judicially or officially obliged to block;
     • v. the customer is more than two weeks in arrears with the payment of the agreed fee;
     • vi. the customer has left incorrect or invalid contact details and communication between SayWay and the customer is no longer possible;
     • vii. the customer has deposited incorrect payment data and the customer’s regular compliance with his or her performance obligations is not guaranteed.

SayWay shall announce the blocking to the customer not later than one working day before the blocking comes into effect, at least in text form, insofar as the announcement is reasonable under consideration of the mutual interests and is compatible with the purpose of the blocking.

 

§ 4 Payments by the customer; retention of title

1. The valid prices and terms of payment of SayWay according to the offer/order form apply in each case. All prices are exclusive of VAT at the legally prescribed rate.
2. Payments for the Hardware are due upon invoicing and payable within 14 days. Invoicing to the customer shall take place in digital form, unless otherwise agreed with the customer. The Hardware remains the property of SayWay until full payment has been made. Invoicing for the sale of goods takes place when the goods are dispatched, unless otherwise specified in the offer/order form.
3. Objections to the invoice must be made within six weeks of receipt of the invoice to SayWay (see above address) in writing or by email to info@sayway.com. If the customer does not assert objections within six weeks of receipt of the invoice, the invoice is deemed to be approved. Legal claims of the customer in the event of objections after the deadline remain unaffected.
4. Unless otherwise agreed in the order form, the customer shall pay SayWay a monthly fee. The due amount is specified in the offer/order form for the use of the Software and the associated granting of rights.
5. Insofar as the customer has to hold back any withholding tax on the amounts to be paid to SayWay, the customer shall inform SayWay immediately and cooperate with SayWay free of charge in order to enable SayWay to obtain any refunds, exemptions or reductions of withholding tax provided for under the law of the customer’s country, including any double taxation agreements. To this end, the customer will in particular provide SayWay with all the necessary information and confirmations in the required form and/or make corresponding declarations to third parties (e.g. the tax authorities of his or her country).
6. The customer can only offset an undisputed or legally established claim against a claim of SayWay. This does not include any offsetting with a claim that is the exact counterpart of the claim of SayWay (synallagmatic relationship).

 

§ 5 Warranty and availability

1. The customer is obliged, in the event of any defects occurring in the SayWay Products made available, to inform SayWay of these immediately in writing, sending over all documents and data that is available to the user and that can serve to diagnose the fault.
2. The relevant statutory warranty provisions shall apply to free services.
3. The warranty period for the Hardware is 12 months (subject to §10). The provider shall initially grant the customer the right to rectification. The provider shall remedy a defect that has occurred at no cost to the customer by repair or replacement. If the rectification proves to be impossible or unreasonable, the customer may, at his or her option, rescind the contract or reduce the purchase price (abatement) and claim damages subject to § 6.
4. Otherwise, SayWay is liable for defects in the provision of the Software exclusively in accordance with the following provisions.
   • a. Defects are significant deviations from the contractually agreed functional scope of the Software.
   • b. If the services to be provided by SayWay under this contract are defective, SayWay shall, within a reasonable period of time and after receipt of a written notice of defect from the customer, rectify the services or provide them again, at its discretion. When using third-party Software that SayWay has licensed for use by the customer, the rectification of defects shall consist of the procurement and installation of generally available upgrades, updates or patches.
   • c. The provision of instructions for use with which the customer can reasonably circumvent defects that have occurred in order to use the Software in accordance with the contract shall also be deemed to be rectification.
   • d. If the defect-free provision of the services fails for reasons for which SayWay is responsible, even within a reasonable period set by the customer in writing, the customer can reduce the agreed remuneration by a reasonable amount.
   • e. Insofar as a fee has been agreed on a term-related basis, the right to a reduction for each month in which the defect persists is limited to the amount of the monthly fixed price relating to the defective part of the service. If the reduction under this clause reaches the maximum amount stated in two consecutive months or in two months of a quarter, the customer may terminate the contract without notice.

 

§ 6 Liability

1. SayWay is liable in cases of intent or gross negligence on the part of SayWay or a representative or vicarious agent, as well as in the case of culpably caused injury to life, body or health, in accordance with the statutory provisions.
2. In cases other than those mentioned in paragraph 1, SayWay is only liable for simple negligence in the event of a breach of an essential contractual obligation. An essential contractual obligation in the sense of this clause is an obligation whose fulfilment enables the implementation of the contract and on whose fulfilment the contractual partner may therefore regularly rely.
3. The liability according to the above clause 2 is limited to the typical, foreseeable damage at the time of the conclusion of the contract.
4. Any liability of SayWay for guarantees given (which must be expressly designated as such) and for claims based on the German Product Liability Act (Produkthaftungsgesetz – ProdHaftG) remains unaffected.
5. The liability for damages due to a loss of data is limited, in the case of clause 2, to the amount the restoration of the data would have required if the customer had backed up the data regularly and in accordance with the risk.
6. The provisions of the above clause 1 shall apply to all claims for damages (in particular for damages in addition to performance and damages in lieu of performance), irrespective of the legal grounds, in particular due to defects, the breach of duties arising from the contractual obligations or from tort law. They also apply to the claim for compensation for futile expenses.
7. The strict liability for initial defects of the Software (S. 536a (1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB)) is excluded.
8. When returning the goods, the customer shall provide suitable packaging. The customer shall bear the risk of deterioration and loss of the goods during return transport in the event of improper packaging.
9. Except in the cases of clauses 1 and 4, liability shall be limited per claim to half of the annual rental fee in the case of ongoing use of the Software, and to half of the project price in the case of a single project or half of the partial project price in the case of a single project part defined in the order form, but shall not exceed € 10,000. The general rule of clause 3 remains unaffected.
10. Insofar as the liability of SayWay is excluded or limited according to these provisions, this also applies to their vicarious agents and assistants.

 

§ 7 Obligations of the customer; indemnity

1. As a rule, texts, graphics, sound or video documents or other data or content, including personal data, provided by the customer, are placed in the Software or the feedback platform by the customer or at the customer’s instigation or used within the framework of other services during the creation, maintenance or use of the contractual Software or other Services of SayWay. The customer shall bear sole legal responsibility for the legal admissibility and legal harmlessness of the use and publication of all such data or information.
2. The customer assures that the corresponding data or content is neither legally questionable as such nor encumbered with the rights of third parties, such as trademarks, name or label rights, or copyright, or violates other rights of third parties. SayWay is not obliged to legally check the data and content provided by the customer or at the customer’s instigation.
3. The customer undertakes to fully exempt SayWay from all possible claims of third parties, which refer to his or her behaviour or omission, in the internal relationship. The assertion of further damages is not affected by this. The customer shall keep the access data to the Software safe and may only make them accessible to authorised employees. The customer acknowledges in particular that he or she is liable for all analyses triggered with his or her account, unless he or she is not responsible for any misuse. The customer undertakes to oblige his or her employees to handle the access data confidentially and to inform SayWay immediately if there is suspicion that the access data could have become known to unauthorised persons.
4. For the contractual provision of the service, in particular the implementation and operation of the contractual Software, the customer must provide SayWay with the necessary data and information in his or her sphere in a suitable form in good time. The customer must ensure that the internal data connections, in particular wireless LAN or internet connection function properly. If SIM cards (radio connection) are used in the tablet PCs, the customer is responsible for ensuring that the cards are used in accordance with the contract with the agreed transmission volume. Costs arising from misuse of the cards or internet use shall be borne by the customer.
5. The customer must back up his or her data regularly and in accordance with the risk, as far as this is technically possible for him or her. This applies both to the data on the local systems of the customer and to the data that the customer stores on the IT infrastructure provided by SayWay.
6. The customer grants SayWay a free right of use of the company logo and the name of the customer for marketing purposes.

 

§ 8 Term and termination of the contract

1. Upon conclusion of the contract, the customer selects a contract term (performance period) for the use of the Software (and, if applicable, the rental period of the Hardware if the rental model has been selected). The contract may be terminated by either party with a notice period of three months to the end of the contract period selected and specified in the order form. If the contract is not terminated, the term shall be automatically extended by a further year. The contract may only be terminated in writing.
2. The right to extraordinary termination for an important cause remains unaffected.
3. SayWay is entitled to an extraordinary right of termination in particular if
   • the customer has provided or provides false information when registering or during the term of the contract;
   • the customer is in arrears, i.e. has failed to make payment after a deadline has been set;
   • the customer alters or otherwise manipulates the SayWay Software or other contractual Services of SayWay;
   • the customer presents racist, pornographic, violence glorifying or trivialising, immoral or infringing content on his or her website;
   • the customer infringes on the rights of SayWay or SayWay’s customers;
   • the customer violates the General Terms and Conditions or essential contractual obligations in a significant manner.
4. Prepaid fees shall only be refunded in the event of an extraordinary termination for which SayWay is responsible. From the time of the termination of the contract, SayWay is entitled to irrevocably delete all data stored during the term of the contract. With the end of the contract, the customer is no longer entitled to use the terminated services, in particular the SayWay Software. Any Hardware and Software provided must be returned to SayWay immediately with the end of the contractual relationship. The customer is obliged to immediately delete the SayWay Software installed for him or her on his or her systems or systems of third parties and to remove code components of SayWay integrated into his or her website.

5. Upon termination of the contract, for whatever reason, SayWay will delete the customer’s data. SayWay is entitled, but not obliged, to store data for security reasons for a period of four weeks beyond the termination of the contractual relationship, in order to protect the customer from accidental data loss. SayWay is also entitled to retain data beyond the termination of the contractual relationship if SayWay is legally or officially obliged to do so, in particular for reasons of commercial and tax law.

 

§ 9 Rights of use

1. SayWay grants the customer during the term of the contract a simple, non-exclusive, non-transferable right of use, limited in time and place according to the terms of the contract, to the Software provided as well as the documentation. The source code is not the subject of the right of use.
2. SayWay makes the Software determined in the respective individual contract available to the customer in such a way that the customer can call up the Software via the internet and use it to the contractual extent. The Software itself remains on the server of SayWay, unless both parties have explicitly agreed otherwise in writing. SayWay shall ensure that the Software can be called up by the customer worldwide via the internet in accordance with the contract. The access of the customer to the internet is not subject of the contract. SayWay remains the owner of all rights to the Software, even if the customer changes the products with his or her own programmes or connects them with those of a third party.
3. The customer may only utilise the data and evaluations obtained by means of SayWay services for his or her own use. The customer may not provide the use of SayWay services to third parties without the written consent of SayWay. A commercial exploitation of the analysis results for third parties is only possible on the basis of a separate agreement with SayWay.
4. The customer is not permitted to
   • a. change the SayWay documentation, to carry out translations, tracebacks to the source code, decompilations or disassemblies, or to create derivative works; Information within the meaning of S. 69e of the German Copyright Act (Urheberrechtsgesetz – UrhG), which is required to establish the interoperability of independently developed computer programs with the Software, can be acquired from SayWay on request against payment of the prices valid at the time;
   • b. transfer, lend, rent, lease, distribute or use the services of SayWay for service to or for third parties, grant rights to the SayWay Software, documentation or other services of SayWay in any form to third parties, unless SayWay has given prior written consent to do so, appropriate fees have been paid and all other requirements of SayWay have been met; or
   • c. remove, alter or deface the designations, labels or markings relating to copyright and other intellectual property rights from the Software, documentation or other services of SayWay.
5. Any HTML or other code provided to the customer by SayWay must be used by the customer unchanged and as intended.
6. Insofar as SayWay has technically protected the contractual products and/or services (e.g. firewalls or security keys), the customer is not permitted to remove or circumvent the security measures.
7. The intellectual property rights and other proprietary rights in the Software and SayWay Services shall remain with SayWay and/or SayWay’s suppliers and partners.

 

§ 10 Special provisions for the rental model

1. As an alternative to purchasing the Hardware, SayWay offers the customer the option of renting the Hardware. In this case, SayWay rents the Hardware for a specific term. The rented Hardware and the term are specified in the order form. In the case of rental, the following special conditions apply:
   • a. Unless otherwise specified in the order form, the customer shall pay a monthly fee, the amount being specified in the offer/order form.
   • b. The Hardware is provided exclusively for use by the customer. The rented items may only be used for the intended purpose specified in the order form.
   • c. The customer shall handle the Hardware with care and protect it from damage. In the event of a culpable breach of the duty of care, the customer shall be liable for damages.
   • d. The warranty period corresponds to the duration of the rental agreement. In the event of defects, the customer must report these immediately in writing. The rectification of defects is carried out by free rectification or repair. SayWay is to be granted an appropriate period of time for this. The rights of the customer due to defects are excluded, insofar as the customer makes or has made changes to the rental object without the consent of the provider, unless the customer proves that the changes do not have an unreasonable effect on the analysis and elimination of the defect for the provider. The rights of the customer due to defects shall remain unaffected, provided that the customer is entitled to make changes, in particular within the scope of the right of self-remedy pursuant to S. 536a (2) of the German Civil Code (Bürgerliches Gesetzbuch – BGB), and that these changes were carried out professionally and documented in a comprehensible manner.
   • e. The provisions of these General Terms and Conditions with regard to the use of the Software integrated in the Hardware shall apply unchanged in the rental model.

 

§ 11 Final provisions

1. Amendments or supplements to the contract must be in written form which also applies to this clause.
2. Place of performance and payment is Cologne.
3. If the customer is a registered trader (Vollkaufmann), a legal entity under public law, or has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all disputes arising from this contract shall be Cologne.
4. German law shall apply. The application of the UN Convention on Contracts for the International Sale of Goods and the conflict of laws is excluded.
5. Should individual provisions of these General Terms and Conditions be invalid or void, this shall not affect the validity of the remaining provisions. In all other respects, the statutory provisions shall apply.