itemis SaaS - Terms of Use (ToU)

These Terms of Use are entered into between the customer ("Customer") and the itemis legal entity responsible for providing the SaaS offering ("ITEMIS"), as determined by the Customer’s principal place of business at the time the agreement is concluded:

a) If the Customer’s principal place of business is located in the United States of America, the contracting entity is:

itemis Inc.
150 North Michigan Avenue, 35th Floor.
60601 Chicago
USA

b) If the Customer’s principal place of business is located outside of the United States of America, the contracting entity is:

itemis AG
Speicherstraße 8
44147 Dortmund
Germany

The applicable itemis entity shall be the sole contractual partner of the Customer under these Terms of Use and shall be responsible for the provision of the SaaS offering and for compliance with all obligations arising from this agreement.

These Terms of Use ("ToU" or "Terms") of ITEMIS apply exclusively to Entrepreneurs (Business Customers) acting in their professional or commercial capacity, and not to consumers. They govern the provision of the itemis Software (CREATE, ANALYZE, SECURE, CORTEX, collectively the "Software") as a Software as a Service ("Service") via the Internet.

For the purposes of these Terms, universities, colleges, research institutions and comparable academic or scientific organisations are deemed to be Business Customers, provided that they use the Service in their institutional or professional capacity.

Sole traders, freelancers and self-employed persons (i.e., natural persons acting in the course of their commercial or professional activity without forming a separate legal entity) are considered Business Customers within the meaning of these Terms of Use, provided that they act in the course of their commercial or professional activity.

Any trial, test or evaluation access to the Software or the Service is offered exclusively to Business Customers within the meaning of these Terms of Use. The eligibility requirements for trial, test or evaluation use are identical to those applicable to paid use. Consumers are excluded from any trial, test or evaluation access.

The commercial details of the subscription (e.g., duration, price, number of users, specific product tier) are defined by the individual Offer issued by ITEMIS or the Order Confirmation following the Customer’s selection via the Webshop/Checkout Process. Deviating terms of the Customer are rejected.

For the avoidance of doubt, these Terms of Use also apply to any trial, test or evaluation access granted by ITEMIS, subject to the specific provisions set out in section Section 9.

ITEMIS provides the Customer with the Software for remunerated use via the Internet for the agreed number of authorised users ("Users"). The definitive scope of the Service and its functionalities are defined in the Offer or Order Confirmation and the Documentation.

The Customer receives the non-exclusive, time-limited, non-transferable, and non-sublicensable right to use the Software solely for its internal business purposes, within the agreed User count, and via the Internet as a Service.

Any use by or for third parties is prohibited. The Customer is not permitted to modify, reverse engineer, adapt, or create derivative works of the Software.

In case of a material breach of these Terms, all rights of use shall immediately revert to ITEMIS.

ITEMIS aims for a target availability of 98% of the Service over the calendar year.

The Service is deemed provided at the router output to the Internet of the data centre used by ITEMIS. The Customer is responsible for its own Internet connection and required hardware.

Maintenance times agreed upon with the Customer, unforeseen security maintenance, and outages due to force majeure or non-preventable external attacks (e.g., viruses, hacking) are considered harmless for the availability calculation.

Maintenance-related outages are limited to a maximum of 48 hours of downtime per calendar year.

ITEMIS may update and further develop the Software at any time.

The Customer must meet the necessary system requirements and is responsible for independently establishing and maintaining its Internet connection.

The Customer must keep access data secret and immediately notify ITEMIS of any misuse. The Customer is responsible for using a supported browser version and carrying out security-relevant browser updates.

The Customer remains the owner of its data and is obliged to regularly create backup copies.

Upon termination of the contract, the Customer may request the return of its data. If not requested within 30 days after termination, the data will be deleted.

ITEMIS guarantees the contractual quality of the Software; however, it is not free of defects. In the event of defects, ITEMIS shall provide supplementary performance (remedy or circumvention of the defect). The no-fault liability of the lessor for initial defects (§ 536 a para. 1 BGB) is excluded.

Claims of the Customer for defects shall become statute-barred within twelve (12) months.

Both parties shall maintain secrecy regarding all designated or otherwise confidential information (e.g., trade secrets, know-how, Software) for a period of 3 (three) years after the termination of the contract.

The processing of personal data by ITEMIS is governed by the separate Privacy Policy, which is available at: Privacy Policy for itemis SaaS

Insofar as ITEMIS processes personal data on behalf of the Customer (Commissioned Processing), a separate Data Processing Agreement (DPA) pursuant to Art. 28 GDPR shall be concluded.

In the event of any conflict between the Terms of Use and the Data Processing Agreement, the provisions of the Data Processing Agreement (DPA) shall prevail with respect to the processing of personal data.

The Privacy Policy does not form part of the contractual agreement, except where it is explicitly incorporated by reference, in particular for the specification of approved sub-processors pursuant to the Data Processing Agreement (DPA).

These Terms of Use and any contractual or non-contractual obligations arising out of or in connection with them shall be governed by the laws applicable to the respective ITEMIS contracting entity, as follows:

(a) If the contracting entity is itemis AG, these Terms of Use shall be governed by the laws of the Federal Republic of Germany, excluding its conflict-of-laws rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes arising out of or in connection with these Terms of Use shall be Dortmund, Germany.

(b) If the contracting entity is itemis Inc., these Terms of Use shall be governed by the laws of the State of Illinois, United States of America, excluding its conflict-of-laws rules and the United Nations Convention on Contracts for the International Sale of Goods (CISG). The exclusive place of jurisdiction for all disputes arising out of or in connection with these Terms of Use shall be Chicago, Illinois, USA.

ITEMIS may amend these Terms of Use from time to time for valid reasons, in particular to reflect changes in law, regulatory requirements, security requirements, or to further develop the Software or the Service.

ITEMIS shall notify the customer of any proposed amendments at least six (6) weeks prior to their intended effective date. The customer may object to the proposed amendments no later than one (1) week prior to the effective date. If the customer does not object within this period, the amendments shall be deemed accepted and shall become effective on the announced effective date.

The foregoing shall not apply to amendments that materially affect the essential contractual obligations of the parties, including in particular provisions relating to remuneration, liability or the core functionality of the Software or the Service. Such amendments shall require the customer’s explicit consent.

If the customer objects to an amendment that does not require explicit consent, ITEMIS may terminate the contractual relationship with effect from the date on which the amendment was intended to become effective.

Amendments shall not apply to the Data Processing Agreement, which may only be amended by mutual agreement of the parties, except where mandatory changes are required by applicable data protection law.

ITEMIS may, at its sole discretion, grant the customer temporary access to the Software or the Service for evaluation, testing or demonstration purposes ("Evaluation Access").

Evaluation Access is provided free of charge, for a limited period of time, and exclusively to Business Customers within the meaning of these Terms of Use.

The Software or Service made available under an Evaluation Access may be used solely for evaluation, testing and demonstration purposes and not for productive, operational or commercial use.

ITEMIS may restrict, modify or terminate the Evaluation Access at any time, in whole or in part, without prior notice and without stating reasons.

Where the Customer uses the Evaluation Access to process personal data relating to other individuals (e.g., employees or test users), ITEMIS processes such data on behalf of the Customer, and the Data Processing Agreement applies.

Where the Customer uses the Services exclusively for their own purposes and does not process personal data relating to other individuals, ITEMIS acts as an independent controller, and the Data Processing Agreement does not apply.

In the event of a conflict between Section 9 and other provisions of these Terms of Use, the provisions of Section 9 shall prevail solely with respect to the scope, duration, permitted use, support and liability applicable to the Evaluation Access.

The term of evaluation access (the "Subscription Term") is limited to three (3) months from the Effective Date of access, which may be extended by ITEMIS upon prior communication to the Customer. The access is granted solely for internal development, evaluation, testing, or demonstration purposes on a trial basis ("Authorized Use") to allow ITEMIS to receive feedback.

Upon termination of the Evaluation Access, the Customer will cease all use of the Service and remove all of its content and data from the Service. ITEMIS will not provide any data back-up or data migration, and Section 5.4 does not apply.