General Terms and Conditions

Last updated: September 2019

1. Content and realisation

1.1. Parties and object

These General Terms and Conditions regulate the legal relationship between ATINO GmbH, Springorumallee 2, 44795 Bochum (“ATINO”) and its customers (“Customer”) with regard to the provision of the online application and platform “Speakwear” for use via the Internet as “Software as a service”. ATINO does not provide its services to consumers, but exclusively for the purposes of the Customer’s commercial or self-employed professional activity.

1.2. Functionality of Speakware

Speakware is a software that can help the Customer with creating and operating voice applications for certain voice-controlled assistance systems like Amazon Alexa or Google (“voice assistance systems”) (called “skill” by Amazon, for example). The Customer requires a corresponding developer account with the providers of the language assistance systems (“language assistance system providers”) (e.g. Amazon), which it links to Speakware.

a) Development tool

Within Speakware, the Customer can store certain logics and processes (e.g. questions and answers, conversations) via a graphical user interface. Speakware transforms these rules into the respective format of the language assistance systems, therefore generating corresponding programs (“voice applications”).

b) Voice application operation

Voice applications can run wholly or completely in the systems of the voice assistance system provider (“external voice applications”) and/or on ATINO computers (“local voice applications”). The voice application gets the requests from the voice application users (“end users”) recognised by it from the systems of the voice assistance system providers. The speech application generates responses from these and delivers them to the speech assistance system provider for output to the end user. In addition, Speakware acts as a data transmitter if the voice application accesses the external servers of the Customer or third parties (gateway function). To authenticate the end customer with external users, ATINO usually does not receive the end user’s user ID and password, but only tokens.

1.3. No deviating regulations

The validity of deviating regulations or regulations going beyond these provisions is excluded. This applies in particular to general terms and conditions of the Customer, even if ATINO accepts an order from the Customer in which the Customer refers to its general terms and conditions and/or the general terms and conditions of the Customer are attached and ATINO does not contradict this.

1.4. Conclusion of the contract

The contract is concluded when the Customer registers with a user account for Speakware and ATINO accepts the registration by means of a confirmation email. The contract conditions are available online and can be saved under Terms.

1.5. Obligations in electronic commerce

Sections 312i Para. 1 No. 1, 2 and 3 as well as Section 312i Para. 1 Sentence 2 BGB, which provide for certain obligations of the trader in electronic commerce contracts, are excluded.

2. Services provided by ATINO

2.1. Usage authorisation

2.1. Usage authorisation. ATINO shall provide the Customer with the software product “Speakware” (“software” or “Speakware”) described under How it works, consisting of a development tool and voice application service for use via the Internet (“service”). The functional scope results from the modules booked when the contract was concluded. The software is operated on computers at a computer centre used by ATINO; the Customer receives the non-exclusive and non-transferable authorisation to access the development tool using a browser and an Internet connection as well as to operate the local voice application and to use it for its own business purposes exclusively in exercising its commercial or independent professional activity for the duration of this contract. This includes the authority to temporarily store the development tool’s program codes (e.g. JavaScript) on the user’s computer (e.g. in the main memory or browser cache) and to execute them there to the extent required. The right of use is limited to the maximum number of users booked by the customer, number of projects, number and types of functions used and, if applicable, further metrics also related to the operation of the voice application, such as server requests or storage space (hereinafter “units of use”). Details can be found in the price models available under Prices. A transfer of use or provision of the development tool to third parties is prohibited. The customer is not permitted to use the tool for productive purposes during the free trial period. The customer’s usage authorisation for the voice application generated by the software is limited to operation on the servers of ATINO (local voice application) or the voice assistance system provider (external voice application) in accordance with the provisions of this contract and those of the respective terms of use of the voice assistance system provider. Furthermore, the customer does not receive any right to the object code and no right to the source code of the voice application. The data stored in the customer’s user account with the voice assistance system provider remain unaffected.

2.2. Excluded purposes of use

The Customer shall not use the service in connection with or for the operation of critical infrastructures, such as power plants, military or defence installations, medical equipment or other devices, the failure or impairment of which would lead to unforeseeable economic or physical damage, including but not limited to critical infrastructures in the sense of the European Directive 2008/114/EC.

2.3. Availability

The Customer accepts that without the service, both the development tool and the voice application will be inoperative. ATINO shall provide the service to the Customer with an availability of 98.0% in the calendar month (target availability) during the operating time. The operating time is 24 hours a day on seven days a week. Operation time does not include announced maintenance windows of up to four hours per calendar month. Maintenance windows will be announced by ATINO in good time – if possible, at least 5 working days in advance – by email. Availability refers to the availability at the transfer point. The transfer point is the router output at the data centres used by the Contractor. Failures of the voice assistance system provider’s systems and the Internet connection between ATINO’s computers and the Customer’s computer or voice assistance system provider’s computers do not constitute service availability failures. If the availability falls below the target availability, the Customer is entitled to reduce the remuneration by 5% for each percentage point of the shortfall in a calendar month, up to a maximum amount of zero euro. The reduction must be claimed within 30 days. Further claims of the Customer for reduction, withdrawal or compensation are excluded.

2.4. Equipment

The Customer shall carry out the initial setup of the service (individual settings or input/import of data, input of questions/answers) itself. Support services for this must be agreed and remunerated separately. A change to the service, in particular reprogramming according to the wishes of the customer, is not owed.

2.5. Support

ATINO can provide free email support to support the use of the service without any legal obligation. Support does not include: creating voice applications using Speakware, general knowledge transfer, training, configuration and implementation or customer-specific documentation or adaptation of the software. Support services are provided systematically by ATINO on working days Monday to Friday from 9.00 am–4.00 pm. Exceptions to this are nationwide public holidays as well as the 24.12 and 31.12 of each year. The first response time to email enquiries is usually 28 hours. Requests received outside support hours shall be deemed to have been received during the following working day. ATINO is entitled to limit or terminate support at any time; any statutory claims for defects remain unaffected.

2.6. Documentation

Unless otherwise agreed, ATINO only owes the provision of user documentation as online help or a German language PDF user manual.

2.7. Changes to services

The Customer is aware that the software is standard software that is provided as software as service and that a large number of customers have access to a central system. The economies of scale resulting from this kind of multi-tenancy model can only be used if it is a standardised software product that can also be further developed. The parties therefore agree that ATINO may change the service (including system requirements) for important reasons. This kind of reason exists in particular if the change is necessary due to (i) a necessary adjustment to a new legal situation or jurisdiction, (ii) changed technical framework conditions (new browser versions or technical standards), or adaptations of the interfaces and systems or terms of use of the voice assistance system providers or (iii) the protection of system security. In addition, ATINO may make reasonable changes to the service as the software evolves (e.g., disabling old features that have been mostly replaced by new ones). ATINO will inform the Customer by email in a timely manner, usually four weeks before the change takes effect, of any changes that are not only insignificantly detrimental to the Customer. The Customer’s consent to this kind of change shall be deemed to have been given if the Customer does not object to the change in writing or by email by the change date. When announcing the change, ATINO will refer to this legal consequence again separately. If the change disturbs the contractual balance between the parties to the detriment of the Customer not only insignificantly, the change will not be made. ATINO is free to offer new functionalities within the scope of chargeable additional modules in the future.

3. Remuneration and default in payment

3.1. Fee structure

The Customer shall owe ATINO the remuneration agreed in the order for using the service during the term of the contract. The current price list can be accessed via Prices. Remuneration may consist of a one-off setup fee, a fixed monthly basic fee and a monthly usage fee depending on the number of usage units booked or used (e.g. users, projects, questions/answers). Any costs and remuneration arising from the Customer’s contract with voice assistance system providers shall be borne by the Customer.

3.2. The basic and usage fee

The basic and usage fee is due in full in advance at the start of the contract for the basic term (see Clause 9.2) and thereafter at the start of each extension term (see Clause 9.2) for the extension term. An increase in the usage units booked (or change to a higher service package) is possible at any time, a reduction (or change to a lower service package) is only possible with effect at the end of the basic or an extension term or before with ATINO’s consent. In the event of an increase in the usage units booked within the basic or extension term, the additional fees will be invoiced pro rata. For the additional usage units, the prices according to the ATINO price list valid at the time the additional usage units are ordered shall apply.

3.3. Invoicing

ATINO shall invoice the fees at the beginning of the contract and at the beginning of each extension term. The invoice amount is due immediately. The invoice shall be issued online by making the invoice available as a downloadable and printable PDF file in the customer menu or by sending it by email (“online invoice”). In the case of an online invoice, the invoice shall be deemed to have been received by the Customer if it views it in the customer menu and is therefore at its disposal or with the receipt of the email.

3.4. Payment by direct debit

Invoice amounts can be paid by Paypal, bank transfer, SEPA direct debit or credit card. The payment is taken on the due date. A payment service provider can be used for billing, currently Company name, address, payment service provider.

3.5. Start of use

Use of the service is – except as part of a free trial period – only permitted and possible after ATINO has received the invoice amount.

3.6. Net prices

All prices are exclusive of the applicable statutory value-added tax.

3.7. Default in payment

If the customer defaults for two calendar months on the payment of the remuneration or a not inconsiderable part of the remuneration; or in a period that extends over more than two months on the payment of the remuneration for an amount that is twice the amount of a monthly basic plus usage fee, ATINO shall be entitled to block access to the service (access to the development tool and operation of the voice application) or to terminate the contract extraordinarily after issuing a corresponding warning by email or letter. During the time that it is blocked, the Customer shall have no access to the data stored in the service and the voice applications will not be functional.

4. Obligations and duties of the Customer

4.1. Legitimate use

The Customer shall only use the service within the scope of the contractual and statutory provisions and shall not violate any rights of third parties during use. When using the service, the Customer shall in particular observe the regulations on data protection, competition law and copyright and shall not import any harmful or illegal data or misuse the service in any other way.

4.3. System requirements

Requirements for the Customer’s hardware and software can be found under link to online cooperation obligations. Unless otherwise specified, the Customer must use a current browser version of Google Chrome or Firefox.

4.4. Back-up copies

It is the Customer’s responsibility to keep copies of the data entered by him and to regularly make backup copies. If the Customer violates this obligation to duly back up data, ATINO shall be liable for data loss limited to those damages that would have occurred if the Customer had duly backed up data on a regular basis.

4.5. Tax-relevant data

It is the Customer’s responsibility to store data in accordance with legal requirements (in particular the provisions of commercial and tax law). The Customer is aware that the service does not meet the requirements of the “Principles for data access and verifiability of digital documents (GDPdU)”.

5. Customer data and data protection

5.1. Customer data

The Customer shall be entitled to the data entered by it within the scope of the use of the service for generating the voice application (e.g. questions/answers, logic, program sequences) and the data generated during the operation of the voice application and attributable to the Customer (e.g. end user enquiries, generated responses, data transmitted at the gateway function) (collectively “customer data”). ATINO treats customer data confidentially.

5.2. Use of customer data

The Customer hereby grants ATINO the non-exclusive, worldwide, free right, limited to the term of this contract, to use the customer data for the purpose of providing the service, in particular to store the customer data in a computer centre operated by ATINO. ATINO also retains the right to use the customer data in a non-personal form for error analysis and further development of the software functions as well as for benchmarking.

5.3. Data processing

If the customer data is personal data, the following shall apply: ATINO shall process the customer data as a data processor within the meaning of Art. 28 GDPR on behalf of and in accordance with the instructions of the Customer and for the purpose of providing the service. Details are set out in the data processing contract concluded between ATINO and the Customer. The data processing contract is attached to these GTCs as an annex and is part of the GTCs and applies automatically with the conclusion of the contract for the use of the service.

6. Claims for defects

6.1. Freedom from defects and quality

ATINO shall provide the service free of material and legal defects and shall maintain the software in a condition suitable for contractual use during the term of the contract. For the contractually agreed quality of the software, only the service description linked in Clause 2.1 is relevant and not information on other websites, oral or written statements by ATINO prior to the conclusion of the contract or information contained in ATINO’s marketing material. The obligation to maintain the software does not include the adaptation of the software to changed conditions of use and technical and functional developments, such as changes in the IT environment, in particular changes in hardware or operating systems, adaptation to the functional scope of competing products or the creation of compatibility with new data formats.

6.2. Elimination of defects

The Customer shall immediately notify ATINO of any defects in the service and explain the circumstances surrounding these defects. ATINO will remedy the defect within a reasonable period of time. ATINO is entitled to show the Customer temporary workaround options and to remedy the defect later by adapting the software if this is reasonable for the Customer.

6.3. Initial impossibility

The strict liability for initial defects in accordance with Section 536a Paragraph 1, alt. 1 German Civil Code (BGB) is excluded.

6.4. Service not granted

The right to termination due to the service not being granted according to Section 543 Paragraph 2 Sentence 1 No. 1 BGB is excluded, unless the provision of the service is regarded as permanently failed.

6.5. Limitation period

Claims for defects are subject to a limitation period of 12 months. This shall not apply in the event of compensation for claims for defects if ATINO has statutory liability by law (cf. Clause 8.1 Sentence 2).

6.6. Legal regulation

In all other respects, unless otherwise regulated (see Clause 2.3), the statutory provisions on liability for defects shall apply.

7. Indemnity obligations

7.1. Obligation to indemnify

If third parties (including users of the voice applications, voice assistance system providers or public authorities) assert claims or violations against ATINO based on the assertion that the Customer has breached its contractual obligations, in particular by uploading unlawful data to the service or by using the service in an anti-competitive or otherwise unlawful manner (e.g. in violation of the terms of use of the voice assistance system providers), the following shall apply: The Customer shall immediately indemnify ATINO from these claims, provide ATINO with appropriate legal defence support and indemnify ATINO from the costs of legal defence.

7.2. Indemnity obligation requirements

The requirement for the indemnity obligation according to Clause 7.1 is that ATINO immediately informs the Customer of any claims asserted in writing, does not make any acknowledgements or equivalent declarations and enables the Customer to conduct – if possible – all judicial and extrajudicial negotiations regarding the claims at the Customer’s expense.

8. Limitation of liability

8.1. Exclusions in certain cases

ATINO shall be liable for damages if these
a) a) were caused intentionally or by gross negligence on the part of ATINO or
b) b) were caused by slight negligence on the part of ATINO and are attributable to material breaches of duty that endanger achieving the purpose of this contract, or to the breach of duties, the fulfilment of which is essential for the proper performance of this contract and compliance with which the customer may rely on.

In all other respects, ATINO’s liability is excluded regardless of its legal basis, except if ATINO is liable by law, in particular due to injury to life, limb or health of a person, giving an explicit guarantee, fraudulent concealment of a defect or in accordance with the Product Liability Act. Guarantees by ATINO are only given in written form and are only to be interpreted as such in case of doubt if they are referred to as “guarantee”.

8.2. Limitations

In the case of Clause 8.1 Sentence 1 Letter b), ATINO’s liability shall be limited to the damage typically foreseeable for this type of contract.

8.3. Amount of typically foreseeable damage

In the cases referred to in Clause 8.1 Sentence 1 Letter b), the parties shall assume that the “typically foreseeable damage” for all damage claims occurring in a calendar year corresponds to no more than twelve times ATINO’s average net monthly remuneration, but not less than € 1,000.

8.4. Free trial period

ATINO’s liability is limited to intent and gross negligence for damage caused during a free trial period or otherwise free provision of services.

8.5. ATINO staff and representatives

The limitations of liability in Clauses 8.1 to 8.4 shall also apply to claims against ATINO’s staff and representatives.

9. Duration and termination

9.1. Duration

Depending on the Customer’s order, the contract is concluded for a specific term (“basic term”) and is then automatically extended for the same period (“extension term”) if the contract has not been terminated by a party with three days’ notice (“notice period”) to the end of the basic term or an extension term. Unless otherwise agreed, the basic term and the extension term shall each be one month (monthly terminability). The right to termination for good cause shall remain unaffected. Clause 3.2shall apply for reducing usage units. Clause 9.1 shall apply accordingly for the termination of individual modules (functional scope).

9.2. Form

Notice of termination can be given within the software or by email.

9.3. Consequences of contract termination

At the end of the contract term, the Customer will no longer be able to access his customer data in Speakware. The Customer’s voice application will no longer be functional after the end of the contract; enquiries from end customers to the voice application will no longer be processed. ATINO is not obliged to handover customer data or the program code generated by ATINO for voice applications at the end of the contract. Upon contract termination, ATINO will delete customer data unless ATINO is required to retain it by law. If deletion is only possible with disproportionate effort (e.g. backups), ATINO is entitled to temporarily block access to the data and delete it completely as part of the next regular deletion. The usage accounts with the voice assistance system providers remain unaffected by the termination of the contract with ATINO.

10. Changes to the GTC

ATINO has the right to amend these General Terms and Conditions at any time or to add regulations for the use of any newly introduced additional services or functions of the software. The Customer shall be informed of any changes and additions to the General Terms and Conditions by email to the email address it specified at least six weeks prior to the planned entry into force. The Customer’s consent to the change to the General Terms and Conditions shall be deemed to have been given if the Customer does not object to the change in text form within a period of four weeks from receiving the change notification. In the change notification, ATINO will separately refer to possibility of objection, the deadline for objection, the text form requirement and the meaning or consequences of the failure to object.

11. Final provisions

11.1. Declarations and notifications.

ATINO is entitled to send all declarations and notifications relating to the contractual relationship to the email address provided by the Customer upon registration. The Customer will check these regularly.

11.2. Offsetting

Changes to this contract must be made in text form (e.g. email). This also applies to the waiver of this written form requirement.

11.3. Text form

Changes to this contract must be made in text form (e.g. email). This also applies to the waiver of this written form requirement.

11.4. Applicable law

This contract and all disputes arising in connection with it (both contractual and criminal) shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

11.5. Place of jurisdiction

If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction shall be that of ATINO. ATINO remains entitled to take legal action at the Customer’s place of business.

11.6. Partial invalidity

If individual provisions in this contract are or become invalid, the validity of the remaining contractual provisions shall remain unaffected. Instead of the invalid provision, that which the parties would have reasonably agreed upon according to the originally intended purpose from an economic point of view shall apply. The same shall apply in the event of a loophole in the contract.

Order processing contract (OPC)