§ 1 General
(1) Retresco GmbH (hereinafter referred to as "Retresco") has developed the textengine.io text generation platform which enables customers to independently develop text models (so-called cartridges), and generate text based on raw data in an automated process.
(2) Unless as otherwise agreed individually and in writing, the following terms and conditions will apply on a mandatory basis to the use of textengine.io.
(3) All conditions applicable to the use of textengine.io will be governed by separate written contracts concluded by and between the parties.
(4) Retresco's offering is exclusively addressed to business customers and not to private consumers.
§ 2 Utilization and operation
(1) During the contract period, the customer will be given access to the textengine.io web application via personalised access data on www.textengine.io. Any disclosure of the customer's access data to any third party is prohibited. The customer is responsible for preventing any third-party access to the customer's password.
(2) Customers will be enabled to upload raw data in specific formats to textengine.io either by way of manual uploading (for the training of textengine.io), or transfer raw data via an interface (API; during ongoing operation) (format specifications and interface description can be found in the area accessible subject to registration).
(3) Customers will be enabled to train textengine.io via a web interface, i.e., to create, edit and delete different cartridges for different text types (i.e., text models consisting of story plots, messages, conditions and text templates in a defined language).
(4) Where contractually agreed, the customer will be enabled to also use cartridges made available by Retresco via textengine.io. The customer will be able to edit such cartridges via the web interface.
(5) The customer will be enabled to have textengine.io transmit the texts generated to the customer either by way of manual downloading (within the scope of training), or via API (during ongoing operation) (format specifications and interface description can be found in the area accessible subject to registration).
(6) The use of the texts in the customer's systems and implementation in the workflow on the customer side will be under the customer's responsibility.
(7) Retresco will store and use the customer's raw data, cartridges and texts generated each separately by assigning a customer-specific ID exclusively by order of the customer, and will not store any such raw data, cartridge or text unless temporarily for the purpose of contract performance. No raw data will be stored unless used for training. Retresco expressly warrants and assures that the disclosure of any raw data, cartridge and text generated to any third party or to any other customer will be excluded.
§ 3 Service Level Agreement (SLA)
(1) Retresco will provide support via e-mail in the German and English languages between 8:00 AM and 6:00 PM CET on business days (for contact data, please see the area available subject to registration).
(2) Retresco warrants an availability of 99.5% per calendar month for textengine.io.
(3) A planned unavailability (e.g., for maintenance work) will not be deemed to reduce the above-mentioned availability if and where announced by Retresco not less than 48 hours in advance. Whenever possible, Retresco will carry out any such work outside the core operating periods.
§ 4 Rights of use
(1) Retresco grants a non-exclusive and non-transferable right to the customer to use the textengine.io software/online platform within the scope of SaaS services in accordance with the intended use for the term of the agreement.
(2) The customer must not copy the software unless if and where such copy is covered by the software's intended use under the specification of services applicable from time to time. Required copies are deemed to include loading the software into the working memory on Retresco's or the provider's server but no installation or storage, albeit temporary, of the software on any data medium (such as on any hard disk or the like) of the hardware used by the customer.
(3) Unless otherwise agreed, the customer will have no right to make the software available for use by any third party whether for a consideration or free of charge.
(4) Unless as otherwise agreed on a case-by-case basis, the rights of use for the cartridges created by the customer and for the texts generated therefrom will be reserved exclusively by the customer. In this context and for the purposes of performing the agreement, the customer will grant Retresco a non-exclusive right of use for storing and processing the cartridges so as to allow creating the product texts which will be automatically generated by the customer from these cartridges. Retresco will also be entitled to save the cartridges in a back-up system or at a separate back-up processing centre. Retresco is also entitled to use the cartridges for the purposes of automatically training and testing text generation procedures in order to continuously improve the textengine.io software. This will not create any right for Retresco to exploit or use the cartridges.
(5) All rights to any cartridge provided by Retresco will continue to be reserved by Retresco in the cartridge's condition at the time of its provision. For these cartridges, the customer will be granted a non-exclusive right of use for text generation purposes and the right to edit these cartridges.
(6) The customer will have exclusive rights unrestricted in terms of both time and territory to the data provided by the customer. In this context and for the purposes of performing the agreement, the customer will grant Retresco a non-exclusive right of use for processing the data so as to allow creating the product texts automatically generated from these data. Retresco will also be entitled to save the data in a back-up system or at a separate back-up processing centre. To correct faults, Retresco will also be entitled to make changes to the data structure or to the data format.
(7) Retresco will not have any right of use of its own with regard to any personally identifiable data to be processed in an exceptional case.
(8) The customer will in no event acquire any rights of the customer's own in textengine.io or in any other software used by Retresco, including, without limitation, through any use thereof.
§ 5 Customer obligations
(1) The customer shall agree not to provide any data which would be unlawful, or violate any law, official requirement or third-party right. The customer will be responsible for the contents of data, cartridges and the texts generated therefrom.
(2) The customer has the obligation to take suitable precautions in order to prevent any unauthorised third party access to any protected software area. To ensure the foregoing, the customer will remind its employees of their duty to observe the copyright and data privacy legislation. T
(3) Prior to uploading, the customer will be required to check its data and information for any virus or other harmful component by using anti-virus programs according to the state-of-the-art.
(4) The customer shall be obligated to keep user ID and password secret and not make them accessible to any third party.
(5) The customer shall be obligated to report any malfunction, disturbance or impairment occurring at the interface during the transmission of data without any delay and as precisely as possible in text form to Retresco.
§ 6 Warranty
(1) In case of any material or legal defect or any other act giving rise to liability committed by Retresco, the statutory regulations will apply unless as otherwise determined hereinafter.
(2) Retresco will perform the operations related to the SaaS service accepted with maximum care and using proven technology in accordance with the latest state-of-the-art.
(3) If correcting an essential error in the textengine.io software or in the SaaS service turns out to be impossible when using reasonable economic means or if a defect cannot be permanently removed, the customer can give notice to terminate the contractual relationship while observing the notice period.
(4) If Retresco fails to meet its duty to correct a defect within a reasonable period, the customer shall define a reasonable grace period. A defect shall be deemed equivalent to the system's unavailability.
(5) Any warranty claims of the customer will become statute-barred within s period of one year after acceptance.
§ 7 Liability
(1) Retresco would like to draw the customer's attention to the possibility of limitations or impairments which may occur with textengine.io but are outside Retresco's sphere of influence. This is deemed to include but not limited to any action of third parties not acting on Retresco's behalf, any technical conditions on the Internet not under Retresco's influence as well as force majeure. Any hardware, software and technical infrastructure used by the customer may also have an influence on Retresco's services. If and where they have any influence on the availability or functionality of any service performed by Retresco, such circumstances shall not be deemed to affect the conformity of the services performed with the contract.
(2) In the event that any service of Retresco is used by any unauthorised third party while using the customer's access data, the customer will be liable for any charges incurred thereby within the scope of civil liability from the receipt of the order to change the access data or the notification of loss or theft if and where the customer is not responsible for such third-party access.
(3) Retresco is entitled to immediately block the access if there are any reasonable grounds for suspecting that any data transmitted are unlawful and/or infringe any third party right. Reasonable grounds for suspecting unlawfulness or the infringement of a right are deemed to exist in but not limited to the event that any court of law, public authority and/or other third party informs Retresco to that effect. Retresco shall immediately inform the partner about any such blocking and about the reasons for it. The block will be lifted as soon as such suspicion is refuted.
(4) Retresco cannot be held liable for any delay in or failure to deliver any text if any such delay or failure is due to any failure to provide or delay in providing any data by the customer. Likewise Retresco cannot be held liable for any wrong or incomplete data if such data have been transmitted wrongly or incompletely by the customer.
(5) Retresco shall be liable without limitation in case of intent and gross negligence. In case of any prejudice resulting from any person's injury to life, body or health, Retresco will also be liable for ordinary negligence. Otherwise, Retresco cannot be held liable for any ordinary negligence unless any material obligation under the agreement has been infringed by Retresco, its legal representatives or managerial employees or performing agents.
(6) The limitation of liability is equally applicable in favour of Retresco's executive bodies, employees and performing agents.
§ 8 Remuneration
(1) Remuneration will be subject to the prices, terms and conditions defined in separate written agreements made by the contracting parties
(2) All price specifications shall be deemed net and exclusive of the value-added tax applicable from time to time.
(3) The contracting parties shall keep price agreements in confidence.
(4) Invoicing for the licence to use textengine.io will take place annually in advance. Payments shall become due and payable upon invoice receipt and be transferred to the following account while indicating the contract number within a period of 20 days:
IBAN: DE86 1007 0000 0683 4022 00
(5) If the customer delays the payment of any remuneration due and payable for more than four weeks, Retresco will be entitled, after a reminder with a deadline has elapsed without result, to block access to the textengine.io and thus stop the provision of texts. Retresco's entitlement to remuneration shall remain unaffected by such block. Access will be activated immediately after the settlement of any such arrears.
(6) Any additional cost incurred (e.g., travel to the customer's registered office, etc.) will be invoiced on a separate basis and announced in advance. The reimbursement of costs for any travel outside Berlin, Germany will be limited to second-class rail travel, economy class flights, and hotels up to a maximum of four stars. No costs will be invoiced for any travel inside Berlin, Germany.
§ 9 Term and termination
(1) The agreement will take effect upon its signature by the customer and shall be concluded for an indefinite period of time. The minimum contract term shall be 12 months. Thereafter, the term shall each be extended by another 12 months unless notice to terminate is given within a period of three months prior to the end of the corresponding term.
(2) Both parties shall reserve the right to extraordinary termination for good cause if and when the statutory conditions are met.
(3) A good cause shall be deemed to exist for Retresco in but shall not be limited to the event that the customer is in delay with the payment of any remuneration due and payable for more than two months even after a reminder.
(4) To be effective, a notice of termination must be given in writing, bear a legally valid signature and be transmitted by letter or e-mail attachment. Compliance with this form shall be deemed a prerequisite.
(5) After the termination of the contractual relationship, Retresco will delete all data, cartridges and texts stored in textengine.io subject to any existing duty or right of retention.
§ 10 Secrecy and data privacy
(1) Both parties shall maintain secrecy about any business-related or operational matter which may become known to them, and keep any information related to contract performance strictly confidential unless an express written permission has been granted on a case-by-case basis beforehand.
(2) The parties shall agree and assure that the information received will not be used for competition or other purposes and/or against the party providing such information.
(3) The following shall apply vis-a-vis any unauthorised third party, i.e., also vis-a-vis any unauthorised employee both from Retresco and from the customer unless the disclosure of information is required for the proper performance of the contractual obligations. In case of doubt, a separate approval shall be obtained prior to disclosure.
(4) Confidential information shall be deemed to include any non-public information disclosed or made available either directly or indirectly in relation with the project by one party or by any company associated with that party (disclosing party) to the other party or to any company associated with the other party (receiving party), and marked as confidential or to be reasonably considered confidential based on its content or the circumstances. Exceptions to this shall, on the partner's side, include any associated company as defined in Sections 15 et seq. of the German Stock Corporation Act (AktG) under this Agreement. Confidential information may, in particular, be made accessible for auditing purposes on an intragroup basis. The contracting parties will impose the corresponding duties on and ensure the supervision of their employees, freelance collaborators and of any other company involved (subcontractors and associated companies as defined in Sections 15 et seq. of the German Stock Corporation Act (AktG).
(5) The duty to maintain secrecy shall not apply to any document, knowledge and information for which a contracting party provides evidence showing that such document, knowledge and information has become known to the public on any grounds not under such contracting party's control. The duty to maintain secrecy shall survive the end of this agreement for a period of three years. Any infringement of the duty to maintain secrecy will entitle the other contracting party to terminate the agreement without prior notice and without prejudice to any other right.
(6) The parties shall agree and assure that the information received will not be used for competition or other purposes and/or against the party providing such information.
(7) The parties and their employees are aware that any treason of a business-related or operational secret may not only give rise to claims for damages but also to persecution under penal law.
(8) If and where the customer intends to process personally identifiable data or have such data processed on any IT system which is under Retresco's technical responsibility, the customer shall notify such intended data processing in writing via e-mail well in advance so as to allow the conclusion of an agreement on commissioned data processing.
(9) By derogation of paragraph (1), the parties shall grant each other, for the term of this agreement, an unlimited right to use the corresponding other party's name and company logo as reference or service provider in any company brochure, press information or web presence
§ 11 Final provisions
(1) The place of performance shall be the registered office of Retresco GmbH. For any merchant, corporate body under public law or special fund under public law based on a contract, the place of performance shall be Berlin, Germany. The legal relationship between the contracting parties shall be exclusively subject to the laws of the Federal Republic of Germany, excluding the UN Sales Convention (CISG).
(2) If any provision of this agreement or other terms of contract should either be or become ineffective or should the agreement be incomplete, the validity of the provisions shall not be affected thereby in any other respect. Any such ineffective provision shall be replaced by a provision which, as far as admissible under law, comes as close as possible to the economic purpose intended by the ineffective provision. The same shall apply to any gap in the Agreement.
(3) No verbal subsidiary agreement shall have been made. No amendment, supplement and addendum to any agreement shall be valid unless agreed by the parties in writing.
Berlin, Germany, November 2020