Actano GmbH (here-in- after: Actano) offers web-based project software (here-in-after: Software) for companies on the website “Allex.ai” or “app.allex.ai” (hereinafter: Allex), for the planning and execution of projects, the allocation and control of resources and the management of project portfolios.
The following general terms and conditions of use apply to all usage agreements (here-in-after referred to as “Agreements”), which are concluded between Actano and customers, who are not consumers in the sense of § 13 BGB (German Civil Code) or other corresponding relevant legal provisions, regarding the software “Allex”.
Deviating general terms and conditions of the customer do not apply to contracts unless Actano expressly agrees to their application in writing.
The offer provided by Allex.ai to use the web-based software designated and described there does not constitute a binding offer by Actano.
The use of Actano’s software requires the creation of a customer account (here-in-after: account). For the creation of the account, the required data must be entered, and a password must be set. By confirming the creation of the account, the customer first makes a binding offer to conclude a contract for the free use of the software for testing purposes. Actano can accept this offer by setting up and granting access to the account or by sending a message to the specified e-mail address with the access data for the created account.
By concluding a contract for free use according to section 2.2, Actano grants the customer the right to use the software exclusively for test purposes for 14 days from the granting of access to the software or notification of the access data by Actano (test period). Each customer is entitled to only one test period. However, the test period can be extended upon request to Actano. Whether the test period is extended is solely at Actano’s discretion. After the trial period has expired, the customer’s account will be blocked. An automatic conversion into a contract for the paid use of the software does not take place.
After expiration of the trial period according to section 2.3, the customer has the option to conclude a fee-based contract with Actano for the use of the software. The concrete scope of services and conditions for this can be found at www.allex.ai/preise or in a written offer from Actano according to 2.5.
For the conclusion of a contract for the fee-based use of the software, Actano shall prepare a corresponding offer in written or text form upon request, which shall be accepted by the customer by confirmation in text form, written form or verbally, but no later than by payment of the invoice.
Actano provides the customer with access to the version of the software offered on Actano and selected by the customer as Software-as-a-Service (hereinafter: SaaS) via the Internet for the term of a contract. The functional scope of the booked software version results from the description on the website of Allex.ai under the heading “Prices”. Further services (e.g. (remote) support for the initial creation of an account) are not subject of a contract for the (chargeable) use of the software. Such further services can be provided by Actano based on a separate offer.
Customers with a paid contract to use the software must contact Actano’s account management (firstname.lastname@example.org) to change the version. If the customer changes to a version with a larger scope of features or to a version with a larger number of users or resources during a current billing period, the customer can use the additional functions of the software or manage a larger number of users or resources from the time Actano changes the account. If the customer changes to a version with a lower scope of features or with a lower number of users or resources to be managed, the customer can only use the reduced functions of the software or a lower number of users or resources from the time Actano changes the customer’s account.
Actano guarantees a 99% availability of the software provided as SaaS on an annual average. Excluded from this are times when the server cannot be reached due to other technical problems that are beyond Actano’s control (in particular force majeure, fault of third parties). Also excluded are planned maintenance works (e.g. updates of the software), which are either outside the usual business hours from Monday to Friday (taking into account public holidays at the Berlin location) between 9:00 a.m. and 6:00 p.m., or which have been announced in advance according to section 4.2.
Actano is entitled to interrupt the availability of the software for maintenance purposes and due to other technical requirements. As far as possible, maintenance work will be carried out outside of normal business hours from Monday to Friday (taking into account public holidays at the Berlin location) between 9:00 and 18:00. If a maintenance task will lead to an interruption of the use of the software of more than 30 minutes within the usual business hours from Monday to Friday (taking into account the public holidays at the Munich location) between 9:00 am and 6:00 pm, Actano will announce this maintenance work by e-mail. The announcement will be made at least 24 hours in advance. At the customer’s request, the announced maintenance work can be postponed, provided that this is justifiable from Actano’s point of view for technical and economic reasons.
Disruptions to system availability must be reported by the customer immediately after they become known. Actano will endeavor to ensure a response time for the start of the fault clearance of four hours for reports of faults in system availability that lead to a total failure of the software and that are received within the support hours (Monday to Thursday between 9:00 and 18:00 and Friday between 9:00 and 17:00, taking into account public holidays at the Berlin location). In the case of minor faults that do not lead to a total failure of the software and occur during ongoing operation, Actano will endeavor to respond no later than one working day after receipt of the fault report.
For fault reports received outside of support hours, fault clearance will begin on the following business day. Delays in fault clearance for which the customer is responsible (e.g. due to unavailability of a contact person on the customer’s side or delayed reporting of the fault) will not be counted towards the fault clearance time.
The following cooperation obligations are primary obligations of the customer and are not to be classified solely as secondary obligations or duties.
The customer is obligated to check the functionalities and general condition of the software during the test period according to clauses 2.2 and 2.3 and to notify Actano of any defects or other deviations from the requirements for the condition before concluding a contract for the fee-based use of the software. The customer cannot refer to defects or other deviations from the quality requirements that were already known or present during the test period but were not reported to Actano prior to the conclusion of a contract for the paid use of the software.
The customer is obligated to provide a qualified contact person along with a deputy who is authorized to make or immediately bring about all necessary decisions that are required to provide the contractually agreed service. The customer shall be obliged to notify any changes in the contact person (including deputy) without delay.
The Customer shall be exclusively responsible for the contents and data processed with the Software. The customer hereby agrees to use Actano’s software only in accordance with the contract and within the scope of the applicable legal provisions and not to violate any third-party rights during use. The customer will inform Actano immediately, if possible in writing, about: (i) misuse or suspicion of misuse of the contractually agreed service; (ii) a risk or suspicion of a risk to compliance with data protection or data security that occurs in the course of providing the contractually agreed service; (iii) a risk or suspicion of a risk to the service provided by Actano, e.g. due to loss of access data or hacker attack.
The customer is obliged to ensure the technical requirements himself.
The connection to the Internet in sufficient bandwidth and latency is the responsibility of the customer.
The customer is responsible for taking state-of-the-art IT security measures within his own organization and for his employees. These include, but are not limited to, the installation and regular updating of common antivirus software on the laptops, computers or other mobile end devices of the customer’s employees, ensuring the assignment and regular updating of secure passwords in accordance with the BSI IT Grundschutz or other equivalent, recognized security standards for the Allex account as well as for the laptops, computers or other mobile end devices of the employees or the use of appropriate mechanisms such as automatic inactivity lock, firewall, etc.
Customer shall further be obligated to ensure the secrecy of the identification and authentication data assigned to its users, i.e. also, for example, the organizational and, if applicable, technical prohibition of the disclosure of passwords as well as the prohibition of the use of so-called “shared accounts”. The ban on the use of shared accounts refers to the Allex account.
In addition, Customer shall ensure the security of the Internet connection used, i.e. in particular also the use of company-owned instead of public Virtual Private Networks (VPN) as well as ensuring the use of VPN connections in public networks.
The customer is responsible for the technical setup and administration of the account. This applies regardless of whether Actano supports the customer in setting up the account, in whatever form. This includes in particular: (i) the technical setup of the account, in particular migration of data, configuration of master data; (ii) the technical connection of interfaces on the customer’s side according to the specification for incoming and outgoing data; (iii) the administration of the account, in particular the creation of users and roles and assignment of access to the account.
The customer is obligated to inform Actano immediately in text form about occurring service disruptions (defects in services, lack of availability) and to provide comprehensible information about occurring service disruptions. The customer will support Actano to a reasonable extent in identifying and eliminating errors in case of occurring service disruptions. Actano is entitled to show the customer temporary error workarounds and to eliminate the actual cause later by adjusting the Actano software, provided this is reasonable for the customer.
Actano grants the customer a non-exclusive, simple, non-transferable right to use the booked software, limited in time to the term of the contract.
The customer is obligated to use the software exclusively according to the contract and not to make it available to third parties for use. In case of a corresponding contract conclusion with Actano, the customer’s rights of use also extend to companies associated with the customer in the sense of § 271 HGB (German Commercial Code), §§ 15 ff. AktG or the respective applicable provisions of company law.
The prices stated at the time of the order as shown on Allex’s website shall apply. The prices stated there are monthly net prices in Euro and are exclusive of the statutory value added tax at the statutory rate applicable from time to time, if applicable.
Customer may choose between monthly and annual billing. All payments shall in each case be due for payment in advance upon invoicing.
In the case of monthly billing, the billing period shall commence on the day of conclusion of a contract for the fee-based use of the software via the Account and shall end after the expiry of one month.
Payments for contracts for the chargeable use of the software with monthly billing are generally made by bank transfer monthly in advance.
In the case of monthly billing, a monthly invoice is sent to the customer in electronic form by e-mail. The payment term of the bank transfer is two weeks from the invoice date.
In the case of annual billing, the billing period shall begin on the day the account is activated or on the date defined in the offer and shall end after the expiry of one year.
In this case, the invoice amount is 12 times the monthly fee for the ordered software (section 7.1). Actano initially activates the customer access for one year according to the service period agreed with the customer and stated on the invoice.Payments for contracts for the fee-based use of the software with annual billing are usually made by bank transfer annually in advance.In the case of annual billing, the customer is sent an invoice for 12 months in electronic form by e-mail. The payment term of the bank transfer is two weeks from the invoice date.
In addition, payment by direct debit is available to the customer for monthly and annual billing. If payment by direct debit is selected, we will use the SEPA direct debit procedure. Actano will inform the customer of the execution of a direct debit using the SEPA direct debit procedure with reasonable advance notice, usually two days in advance. However, the parties agree that the period of advance notification of the SEPA Direct Debit shall be reduced to one day.
In the event of a return debit note (in particular due to lack of required coverage of the account, due to expiration of the account, unauthorized objection by the account holder or incorrect entry of the account data), the customer authorizes Actano to submit the debit note for the respective due payment obligation a second time. In such a case, the customer is obliged to pay the costs incurred by the return debit note. Further claims are reserved.
Should the desired version or the number of users or resources increase during the billing period in the case of monthly billing (clause 3.2), Actano will invoice the difference between the advance payment already made and the changed price by the end of the billing month either immediately or with the following invoice for the next billing month. If, in the case of monthly billing, the desired version or the number of users or resources is reduced during the billing period (section 3.2), the customer is not entitled to a (pro-rata) refund of the advance payment already made.
Should the desired version or the number of users or resources increase during the billing period in the case of annual billing (clause 3.2), Actano will additionally bill the difference between the advance payment already made or the amount already billed and the amount based on the changed price until the end of the annual term (billing to the day). If, in the case of annual billing, the desired version or the number of users or resources is reduced during the billing period (Section 3.2), the Customer shall not be entitled to a (pro rata) refund of its advance payment already made.
In case of default by the customer, if no payment has been made even after the expiration of a deadline set to the customer of one calendar week after the due date, Actano is entitled to immediately block the customer’s access to the software. Actano will inform the customer in advance about this blocking by setting a further deadline of one calendar week. In this case, the customer remains obligated to continue paying the agreed remuneration plus any default interest. Any damages caused to the customer by the blocking for this reason cannot be claimed against Actano. Furthermore, Actano has no right to block access to the software. Furthermore, in case of default, the legal provisions of §§ 286, 288 BGB (German Civil Code) or other corresponding relevant legal provisions apply.
8. Start of contract, minimum term and termination
The contract shall commence upon delivery of the access data to the customer. If the scope of use provided is subject to a charge, a free 14-day test phase shall commence at the start of the contract (see Sections 2.2 and 2.3). After expiry of this 14-day test phase, the term shall not be automatically extended. After the end of the test phase, the Customer may decide whether to conclude a contract for the paid use of the software.
In the case of contracts for the paid use of the software with monthly billing, a minimum term of one month shall apply. After expiration of the minimum term, the contract shall be extended by extension periods of one month each, unless the Customer terminates the contract before the beginning of an extension period.
In the case of contracts for the paid use of the software with annual billing, a minimum term of one year shall apply. After expiry of the minimum term, the contract shall be extended by extension periods of one year each, unless the Customer terminates the contract with one month’s notice before the start of an extension period. For the renewal of contracts for the fee-based use of the software with annual billing, Actano will provide the customer with a new annual invoice for transfer no later than two weeks before the start of the new renewal period.
Actano has the right to terminate contracts for the free use of the software or for the paid use of the software with monthly billing with a notice period of two weeks.
Contracts about the chargeable use of the software with annual billing can be terminated by Actano with a notice period of three months to the end of the respective billing period.
The right of both contractual partners to terminate for cause remains unaffected.
Notice of termination shall be given in text form. The customer’s account will be blocked when the termination takes effect.
9.1 Legal liability in case of paid service provision.
In the case of paid service provision, Actano is liable according to the legal provisions for damages from injury to life, body or health, as well as for other damages that are based on an intentional or grossly negligent breach of duty as well as fraudulent intent. In addition, Actano is liable for contracts for the use of the software for a fee according to the legal provisions for damages that are covered by liability under mandatory statutory provisions, such as in the case of the assumption of guarantees, fraudulent concealment of a defect or under the Product Liability Act. Guarantees by Actano are only made in writing and are in case of doubt only to be interpreted as such if they are described as a “guarantee”.
9.2 Limitation of liability in case of paid service provision.
In case of slight negligence, Actano is only liable for damages caused by Actano in the case of paid service provision and which are due to such essential breaches of duty that endanger the achievement of the purpose of this contract, or to the breach of duties, the fulfillment of which only makes the proper execution of the contract possible and on the compliance with which the customer may rely (so-called cardinal breaches of duty). In these cases, Actano’s liability is limited to the contract-typical foreseeable damage. Liability for the slightly negligent breach of obligations that are not cardinal obligations (see clause 9.2. sentence 1) is excluded, unless Actano’s liability is mandatory by law (see clause 9.1. sentence 2).
9.3 Liability in case of gratuitous service provision.
In case of free service provision (e.g. within the test period) Actano is only liable for damages that are based on intent, gross negligence as well as malice. This limitation of liability does not apply to damages resulting from injury to life, body or health, for which Actano is liable without limitation.
9.4 Claims against third parties.
The liability limitations of clauses 9.1. to 9.3. also apply to claims against executives, employees, other vicarious agents or subcontractors of Actano.
Actano collects and uses the customer’s personal data only within the framework of the respectively applicable legal provisions. The contractual partners shall conclude an agreement to this effect to the extent required by the respective applicable provisions.
Neither of the contractual partners is entitled to transmit confidential information of the respective other contractual partner to third parties without express consent (at least in text form). This shall apply both to customers with contracts for free use and to customers with contracts for paid use. All information, whether fixed in writing or transmitted orally, which (i) by its nature is considered confidential or in need of secrecy or (ii) which the contractual partner to whom the information is transmitted must already recognize as confidential or in need of secrecy due to the external circumstances of the transmission. Confidential information includes in particular product descriptions and specifications as well as prices. Both contracting parties undertake to use confidential information only for contractually agreed purposes. Both contracting parties shall take at least those precautionary measures which they also take with regard to their own confidential information. Such precautions shall at least be adequate to prevent disclosure to unauthorized third parties. Both contractual partners shall furthermore be obliged to prevent the unauthorized disclosure or use of confidential information by their customers, employees, subcontractors or legal representatives. The contracting parties shall inform each other in writing in the event of misuse of confidential information. Excluded from the above obligation is such information which (i) was already known to the other contracting party prior to transmission and without an existing confidentiality agreement, (ii) is transmitted by a third party not subject to a comparable confidentiality agreement, (iii) is otherwise publicly known, (iv) was developed independently and without use of the confidential information, (v) has been released for publication in writing or (vi) must be transmitted due to a court or official order, provided that the contracting party affected by the transmission is informed in good time in order to still be able to initiate legal protection measures. The obligation to maintain confidentiality shall also apply beyond the term of the contract until twelve months after the effective termination date of the contract.
Actano reserves the right to change the software or to offer deviating functionalities, unless changes and deviations are not reasonable for the customer. If the provision of a changed version of the software or a change of functionalities of the software is accompanied by a significant change of the customer’s workflows supported by the software and/or restrictions in the usability of previously generated data, Actano will announce this to the customer in text form at least four weeks before such a change takes effect. If the customer does not object to the change in text form within a period of two weeks from receipt of the change notification, the change becomes part of the contract. Actano will draw the customer’s attention to the aforementioned deadline and the legal consequences of its expiry in the event of failure to exercise the option to object whenever changes are announced.
Actano further reserves the right to change the software or to offer different functionalities (i) as far as this is necessary to make the services offered by Actano comply with the law applicable to these services, especially if the legal situation changes; (ii) as far as Actano thereby complies with a court or authority decision addressed to Actano; (iii) as far as this is necessary to eliminate security gaps in the software; or (iv) as far as this is predominantly advantageous for the customer.
Actano is entitled to adjust the prices for the chargeable contractual services annually in an appropriate amount to compensate for personnel and other cost increases. Actano will announce these price adjustments and the effective date of the price adjustment to the customer in text form. The price adjustments do not apply to periods for which the customer has already made payments. If the price increase amounts to more than 5% of the previous price, the customer may object to this price increase within a period of two weeks from notification. A change in the price resulting from a change in the scope of features or number of employees to be managed shall not be deemed a price adjustment within the meaning of this Section 11.4.
If the customer objects to a change within the meaning of this clause 11 in due form and time, the contractual relationship shall continue under the previous conditions. In this case, Actano reserves the right to terminate the contractual relationship extraordinarily with a notice period of one month.
The contractual relationship existing between the contracting parties shall be governed exclusively by the laws of the Federal Republic of Germany to the express exclusion of the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for all disputes arising from and/or in connection with this contractual relationship between Actano and the customer is, as far as legally permissible, Actano’s place of business.
For the conclusion of the contract, the customer has access to the languages in which these GTC are available on Actano’s website. Decisive for the conclusion of the contract for customers from the DACH region – Germany, Austria, Switzerland – is the German version valid at the time of the conclusion of the contract.