General terms
and conditions.

This is a convenience translation - the German GTC apply:

General terms and conditions valid on 01.04.2024

General terms and conditions for customers of FTAPI Software GmbH, Steinerstrasse 15f, 81369 Munich, HRB 189499, represented by the Managing Director Ari Albertini. Version: 01.04.2024

General terms and conditions FTAPI Cloud

Subject of the agreement

1.1 All contracts are concluded exclusively with FTAPI Software GmbH, Steinerstrasse 15f, 81369 Munich, HRB 189499, represented by the Managing Directors Daniel Niesler and Ari Albertini (hereinafter referred to as the “Provider”). Highly secure data workflow solutions are offered. The solutions are offered in the FTAPI Cloud (also known as the “FTAPI Cloud solution”).

1.2 The service offered by the Provider and these GTC are aimed exclusively at legal entities, partnerships and natural persons with unlimited legal capacity who are acting in the exercise of their commercial or independent professional activity (entrepreneurs pursuant to § 14 of the German Civil Code (BGB)). We expressly reject contracts with consumers within the meaning of §13 BGB.

1.3 In the event of any contradictions, the following order of priority applies for the interpretation of the contractual relationship of the parties:

• Commissioning on the basis of the service offered

• These General terms and conditions

Direct performance obligations of the parties arise from these GTC only in connection with commissioning on the basis of an offer from the Provider.

1.4 We expressly object to any general terms and conditions of the customer that conflict with or deviate from these GTC.

Conclusion of the contract

The contract for the respective services is concluded when a binding offer from the Provider has been accepted by the customer; text form is sufficient in each case. The service offer shall be deemed to have been accepted by the customer at the latest when the customer has made use of the services.

Service of FTAPI

The provision of the FTAPI Cloud solution includes the provision of the latest release version generally approved by the Provider and any add-ons that can be booked. In this context, the customer accepts changes to the way in which the FTAPI solution is used and operated, insofar as these are reasonable for the customer.

3.1 The customer has the non-transferable right to use the FTAPI Cloud solution for the intended use cases during the term of the contract. This also applies to purchased add-ons.

3.2 Use is limited to the agreed functionalities of the FTAPI Cloud solution. The Provider is authorised to charge additional fees for functionalities that go beyond the agreed services.

Service Level Agreement

4.1 The availability of FTAPI Cloud is at least 99% on an annual average. Availability refers to the availability of the FTAPI Cloud solution at the Provider’s transfer interface to the public Internet. The availability of the FTAPI Cloud solution is also given if the agreed functionalities are ready to run by means of a previous version or a workaround of the software used.

4.2 Availability is calculated as follows: % availability = (1 - (the total number of minutes in which the FTAPI Cloud solution was unavailable for unplanned reasons within a year / sum of minutes in a year)) x 100. For this calculation, the year is the calendar year. Outages lasting at least one minute or longer are counted.

4.3 Scheduled maintenance work or maintenance work notified to the customer, time losses for which the Provider is not responsible and time losses due to delays in troubleshooting for which the Provider is not responsible shall not be included in the calculation of availability.

Third-party components

If the Provider provides the customer with additional software in connection with FTAPI Cloud that need to be installed on the customer’s systems, it is pointed out that this software is distributed together with open source components. The use of the open source components is not covered by these GTC or other contractual agreements between the Provider and the customer. Rather, the open source components are licensed by their rights holders in accordance with the open source licence applicable to the respective component and can be used by customers accordingly. The documentation provided with the additional software contains a list of all open source components supplied and the applicable open source licences. With regard to the open source components, they may be changed for customer use and reverse engineered to correct defects in such processing.

Support services

The Provider shall support the customer in eliminating alleged errors in the FTAPI Cloud solution. General training measures, telephone support, and visits to customer locations are excluded from the scope of services. The customer shall notify the Provider of any recognisable faults or malfunctions and support the Provider in troubleshooting.

5.1 The Provider’s ticketing system is available 24 hours a day for customer support requests. All customer enquiries and notifications must be communicated using this system. The information about the ticketing system is sent by the Provider to the customer when the order is placed or can be found on the website.

5.2 Support services are limited to the support of the customer’s previously designated system administrators. Customers must provide support to their own users.

5.3 The Provider shall answer support enquiries within a reasonable turnaround time within business hours (Monday to Friday, excluding public holidays in the Free State of Bavaria, from 8 am to 6 pm, hereinafter referred to as “business hours”). Support enquiries are usually answered via the ticketing system.

5.4 The customer has the option of purchasing additional paid support services from its sales contact.

5.5 The Provider uses known or best practices or tools that are updated regularly. The Provider shall react promptly to new attack methods as soon as it becomes aware of them; no liability is accepted for any damage caused by unknown attack scenarios.

5.6 In order to improve the services and support, the Provider may collect and use technical information of the customer and user and the hardware and software used by the customer in connection with the Provider’s services in a manner that does not allow any conclusions to be drawn about the identity of the user. The Provider is entitled to analyse this information in order to improve its services and/or to pass it on to third parties so that they can improve the interaction of their products and services with the Provider’s services. Customers agree to grant the Provider access to their data and systems for these purposes.

5.7 The Provider is not responsible for the elimination of errors or faults:

• in the case of products that the Provider has not provided;

• if hotfixes, patches, updates, or releases are available for the error in question;

• if updates of user-specific adaptations, changes, and extensions become necessary after an update;

• if the errors are the result of unpermitted changes or adaptations;

• if caused by software other than that produced by the Provider;

• if based on software products or systems from other manufacturers connected by the customer to the services it has provided;

• if caused by any hardware defects;

• if used in environments other than those specified in the system requirements.

Cooperation

The customer are particularly obliged to cooperate with the Provider as follows:

6.1 The customer shall provide a contact person who is authorised to make decisions that are necessary for the provision of the agreed service.

6.2 The customer shall ensure that they take note of information about product changes and adjustments to the system requirements and implement any necessary adjustments on their side. The information is usually sent out in the form of an email newsletter.

6.3 The customer shall ensure that all FTAPI clients use the latest version and only run on environments that fulfil the system requirements.

6.4 The customer is responsible for ensuring that all necessary measures are regularly taken on its side to enable long-term, smooth use of the FTAPI cloud solution and the FTAPI clients (e.g. firewall settings, DNS entries, etc.).

6.5 The customer shall inform the Provider promptly of all circumstances that are likely to affect the data centre operation or other facilities of the Provider or other customers (e.g. penetration test, ransomware in the customer’s network).

Third-party use

Customers are not permitted to share the contractual services with third parties without the prior written consent of the Provider.

Fees

8.1 The customer is obliged to pay the fees specified in the offer for the services ordered without deduction. The agreed fees do not include the applicable statutory value-added tax. Each invoice is to be paid without deduction. Any discounts require a special written agreement. Customers shall pay in advance. Failure to make payments in full entitles the Provider to withdraw from the contract after issuing a warning and setting a deadline for remedy of the default. In the event that advance payments are not made or not made in full, the Provider shall be entitled to withhold its service until payment has been made. The Provider is under no obligation to provide its services in advance.

8.2 Recurring licence fees are due upon conclusion of the contract and in advance for the term agreed in the service offer.

8.3 Other fees for additional services (e.g. training, onboarding, etc.) shall be charged upon provision or at the latest from the first use of the agreed services; this also applies to partial services.

Prices, cancellation and written form

9.1 Price increases, except pursuant to § 313 of the German Civil Code (BGB), will not occur during the contractually agreed minimum term. Any discounts granted shall end at the end of the minimum term and shall not continue to apply if the contractual relationship is continued.

9.2. The contract does not end automatically. It must be terminated by either party with a notice period of 3 months. Termination is possible at the earliest at the end of the minimum contract term or at the end of the subsequent term. Without termination by either party, the contract will automatically be extended for a further year at the end of the minimum contract term or at the end of the additional term, subject to the previous conditions and services.

9.3 Terminations are only effective if they comply with the agreed written form. Written form/in writing does not only mean a handwritten signature or an email with a qualified electronic signature. The written form is also maintained by using a documented electronic signature tool (technical requirements for the electronic signature within the meaning of the eIDAS regulation must be met), whereby the simple electronic signature is sufficient for this (in particular Docusign). A simple email, however, does not comply with the written form.

9.4 Should changes to the conditions or services become necessary for the subsequent contract year, these changes shall be agreed as follows: the Provider shall send the customer a list of the conditions (offer) of the price/service list for the subsequent contract year in good time before the end of the cancellation period if the prices should increase or decrease for the subsequent contract year or if additional or fewer services are offered. If the customer does not respond to the new offer, this will be deemed as consent to conclude a new contract with a term of 12 months and the new conditions/services after the end of the original term.

9.5 The aforementioned minimum contract terms shall commence upon conclusion of the contract, unless a separate contract start date is indicated in the offer.

9.6. The right of the parties to exercise extraordinary termination for cause remains unaffected.

9.7 Partial terminations by the customer are excluded, i.e. the cancellation of an individual add-on is excluded. The customer has the option of terminating the entire contract and signing a new one at the current list price.

Prohibitions of abuse

10.1 The customer is obliged to use the contractual services in a proper and functional manner and within the framework of the applicable laws.

10.2 The services provided by the Provider may contain technical measures that prevent or detect unlicensed use. Bypassing these technical measures is prohibited unless expressly permitted by mandatory legal provisions.

Liability

If and to the extent that the Provider does not provide publicly accessible telecommunications services within the meaning of the Telecommunications Act, the Provider shall be liable in accordance with the following provisions:

11.1 The Provider shall be liable without limitation in cases of the express and written assumption of a guarantee or a procurement risk, in the event of wilful or grossly negligent damage to property or financial loss and in the event of wilful or negligent injury to life, limb or health.

11.2 Liability under the Product Liability Act remains unaffected.

11.3 In the event of a slightly negligent breach of duty, the Provider shall only be liable for such material contractual obligations whose fulfilment is essential for the proper execution of the contract, whose breach jeopardises the achievement of the purpose of the contract and on whose compliance the customer regularly relies (so-called cardinal obligations, e.g. the culpable breach of an agreed availability). However, the Provider’s liability shall be limited to the typical damage foreseeable at the time the contract was concluded. No liability is assumed for lost profits.

11.4 Unless the creation of data backups is a service that the Provider has expressly undertaken, the Provider shall be liable for the loss of or damage to data and programs and their restoration only to the extent that this loss could not have been avoided by appropriate precautionary measures, in particular the daily creation of backup copies of all data and programs.

11.5 In the event of liability pursuant to clauses 11.3 and 11.4, the Provider’s liability for all damages in a contract year is limited to 100% of the respective net order value of the contract year.

11.6 The Provider’s liability regardless of fault for defects that already exist at the time of conclusion of the contract (§ 536 a BGB) is excluded. The liability provisions according to clauses 11.1 to 11.5 remain unaffected.

11.7 To the extent that liability is effectively excluded or limited in accordance with the above paragraphs, this shall also apply to the personal liability of the Provider’s employees, other staff, bodies, representatives and vicarious agents.

Limitation period

Customer claims are forfeited if not asserted within twelve months after they became known and/or no later than 36 months after the time at which the service in question was provided or the breach of duty in question was committed. In addition, the statutory time limitation applies to damages resulting from wilful and grossly negligent acts and to claims resulting from wilful or negligent injury to life, limb, or health, fraudulent deception, or under the Product Liability Act.

Confidentiality

13.1 The parties shall treat confidential information as strictly confidential, take appropriate protective measures and use the information only for the purpose of executing the contract.

13.2 Confidential information is all information that is made available before or during the term of this agreement within the scope of the purpose of the contract in oral, written, electronic or other form, in particular but not exclusively: all business, financial, legal, technical, personal and other information and trade secrets and in particular the content of the offer.

13.3 All confidential information shall be kept secret by the other party, protected from access by third parties and used only for contractual purposes. Confidential information shall only be passed on to employees of the other party and employees of affiliated companies if they need to have knowledge of the information in question in order to fulfil the purpose of the contract.

Data protection

14.1 The parties undertake to comply with the applicable data protection laws.

14.2 Insofar as the cooperation takes the form of commissioned processing or joint responsibility, the parties agree to conclude a corresponding contract.

14.3 In any case, each party shall provide transparent information within the meaning of Art. 5 lit. a) GDPR concerning the transfer of data and thus fulfil the obligation to provide information arising for the other contracting party from Art. 14 GDPR.

14.4 Our privacy policy applies and may be viewed at www.ftapi.com/Datenschutz

Reservation of the right to make amendments

15.1 The Provider has the right to amend these GTC insofar as this does not affect essential provisions of the contractual relationship and this is necessary to adapt to developments that were not foreseeable at the time the contract was concluded and whose non-consideration would noticeably disturb the balance of the contractual relationship. Essential provisions are in particular those concerning the type and scope of the contractually agreed services and the duration of this agreement, including provisions on its termination. Furthermore, adjustments and additions to these GTC may be made insofar as this is necessary to eliminate difficulties in the execution of the contract due to loopholes that have arisen after the conclusion of the contract. This can be the case in particular if case law changes and one or more clauses of these GTC are affected.

15.2 The Provider has the right to change the services if this is necessary for a valid reason, the customer is not objectively worse off than at the time of conclusion of the contract (e.g. retention or improvement of functionalities) and there is no significant deviation from this. A valid reason exists if there are technical innovations on the market for the services owed or if third parties, from whom the Provider obtains services necessary for the provision of its services, change their range of services.

15.3 The Provider shall send the new general terms and conditions to the customer by email. These will be deemed to have been accepted if the customer fails to object to their validity within 14 days of receipt of the email. The objection must be in text form (e.g. by email). The customers will be especially notified in the email about their option to object, the deadline to make such objections, and the consequences of inaction. In the event of an objection, the Provider has the right to terminate this contract within a period of 2 weeks from receipt of the objection with one month’s notice to the end of the month.

Fair use / Additional charge for excessive traffic

The customer recognises the principles of so-called fair use with regard to the scope of the data transfer initiated by it and undertakes to refrain from excessive use of FTAPI’s facilities and capacities. As a rule, excessive use has taken place if the system is used for illegal activities or if monthly data transfer volumes significantly exceed the average monthly data transfers of comparable offers. Specifically, this means that every customer who uses the FTAPI Cloud solution is provided with 1 TB (terabyte) of free outgoing traffic (downloads from the FTAPI Cloud solution) and 1 TB of free ingoing traffic (uploads to the FTAPI Cloud solution) per month. If a customer has more than 1 TB of outgoing traffic or more than 1 TB of ingoing traffic in a month, there is no automatic throttling, but they will be charged €150 for each TB or part thereof.

Final provisions

17.1 This contract is governed by the laws of the Federal Republic of Germany, excluding private international law and the United Nations Convention on Contracts for the International Sale of Goods (CISG). In dealings with consumers, the law of the consumer’s place of residence is applicable, provided it includes mandatory consumer law provisions that work to their advantage.

17.2 The exclusive place of jurisdiction for disputes arising from or in connection with this contract is Munich, insofar as the parties are merchants, legal entities under public law or special funds under public law and no exclusive place of jurisdiction is established by law.

17.3 Any subsidiary agreements, amendments and additions as well as cancellations of this contract including its annexes must be made in writing. This also applies to changes to this written form requirement. Details regarding the contractually agreed written form are set out in clause 9.3.

17.4 The parties are not entitled to transfer rights and obligations under this contract to third parties without the prior written consent of the other party.

17.5 Should one or more provisions of this contract be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. The same applies in the event of a loophole. The invalid or unenforceable provision or loophole shall be replaced by a provision that comes as close as legally possible to the economic intentions of the parties.