§1 Object of these Terms of Service
(1) Cotype GmbH (the “Provider”) renders SaaS services in the field of software development to the respective customer (the “Customer”) using the Provider’s software.
(2) The object of these terms of service (the “Terms”) consists of
(a) licensing the Provider’s software “Antetype” (hereinafter referred to as “Antetype”) for use both online and as a native application for the operating system “macOS”; and
(b) hosting data on the Provider’s servers.
(3) The Provider is permitted to involve subcontractors for purposes of data hosting. The use of subcontractors does not release the Provider from its sole obligation vis-à-vis the Customer to render contractual performance.
§ 2 Software licensing
(1) The Provider furnishes the Customer with the current version of the Antetype software via the Internet in accordance with these Terms and the agreement concluded between the Provider and the Customer (the “Agreement”). For this purpose, the Provider installs Antetype on a server that is accessible to the Customer online.
(2) Antetype’s current scope of functionality is set forth
(a) in the current specifications on the Provider’s website, www.antetype.com; and
(b) in the Antetype version selected by the Customer after registration:
- “Free Version”: The Provider furnishes the Customer with the current version of the Antetype software for macOS via the Internet for the duration of the Agreement free of charge. The Customer may download the software through Antetype Cloud. Antetype reserves the right to adjust and to limit the scope of the “Free Version” at any time. The complete scope of functionality of Antetype “Free Version” is set forth in the current specifications on the Provider’s website, www.antetype.com/pricing.
- “Paid Version”: The Provider furnishes the Customer with the current version of the Antetype software via the Internet for the duration of the Agreement against payment of a fee. It includes both the macOS application without any restrictions and Antetype Cloud to host and share prototypes. The complete scope of functionality of Antetype “Paid Version” is set forth in the current specifications on the Provider’s website, www.antetype.com/pricing.
- “Educational Version” (free for eligible students and teachers): The Provider furnishes the Customer with the current version of the Antetype software for macOS via the Internet for the duration of the Agreement free of charge. The Customer may download the software through Antetype Cloud. The Provider may grant the Provider additional features from paid versions for free for the duration the Customer is eligible to the “Educational Version”, e.g. free hosting and sharing of prototypes through Antetype Cloud without any entitlement to them. The Customer may need to regularly prove his or her current membership of an eligible educational institution as defined by the Provider, e.g. through valid student ID, educational email domain or other means deemed necessary and sufficient by the Provider. Antetype reserves the right to verify the authorization for using the “Educational Version” at any time and to withdraw the right to use this version if necessary. Furthermore, Antetype reserves the right to adjust and to limit the scope of the “Educational Version” at any time. The complete scope of functionality of Antetype “Educational Version” is set forth in the current specifications on the Provider’s website, www.antetype.com/pricing.
(3) To the extent technically possible, the Provider immediately eliminates all software errors. An error is present whenever the software does not fulfil the functions set forth in the specifications, delivers incorrect results or otherwise fails to function properly, to the effect that Antetype cannot be used or such use is limited.
(4) The Provider continues developing the software and will improve it by means of updates and upgrades.
§ 3 Rights to use Antetype
(1) The Provider grants the Customer the non-exclusive and non-transferable right to use Antetype in its current version for the duration of the Agreement as part of the SaaS services as intended.
(2) The Customer may process Antetype only to the extent that doing so is covered by the software’s intended use according to the current specifications associated with the relevant version of Antetype.
(3) The Customer may duplicate the software only to the extent that doing so is covered by the software’s intended use according to the current specifications associated with the relevant version of Antetype. Necessary duplication includes downloading Antetype to the Provider’s server as well as Antetype’s storage on media (e.g., hard drives or SSDs) as part of hardware used by the Customer.
(4) The Customer is not authorized to make Antetype available for third-party use, be it with or without a charge. In other words, the Customer specifically must not lease or otherwise share Antetype.
§ 4 Data hosting
(1) Subject to the current specifications associated with the relevant version of Antetype, the Provider grants the Customer defined disc space on a server for storing its data. The Customer may store contents generated by Antetype on such server up to the data volume declared in the specifications of the Antetype version selected by the Customer. If the disc space is no longer sufficient for data storage, the Provider will notify the Customer. Subject to availability on the Provider’s part, the Customer may then order additional capacity.
(2) The Provider ensures that stored data may be accessed online.
(3) The Customer is not authorized to make such disc space or any part thereof available for third-party use, be it with or without a fee. In keeping with the current specifications associated with the relevant version of Antetype, however, it may use the disc space to make the digital software prototypes generated via Antetype accessible to third parties following the path prescribed for this purpose in Antetype.
(4) The Customer must not use the disc space to store contents the provision, publication or use of which violates applicable law or contractual arrangements with third parties.
(5) The Provider is obligated to take appropriate precautions against the loss of data as well as unauthorized third-party access to the Customer’s data. However, if the Customer grants access to digital software prototypes created via Antetype to third parties, the Customer is himself responsible for taking appropriate precautions to maintain confidentiality.
(6) Upon the discontinuation of the contractual relationship, the Provider will not return to the Customer any data stored in the disc space assigned to the same. However, this does not apply to personal data within the meaning of the GDPR. Personal data will be returned on request to the customer by the Provider in accordance with the legal obligations. The respective personal data is provided via a download link. The customer is not entitled to any software required to use this data.
(7) With regard to the Customer’s data, the Provider holds neither a right of retention nor a statutory lessor’s lien (§ 562 of the Civil Code (Bürgerliches Gesetzbuch – BGB).
§ 5 Support
(1) The scope of support is defined in the current specifications associated with the relevant version of Antetype.
(2) The Provider will answer the Customer inquiries about Antetype and the other SaaS services in accordance with the current specifications associated with the relevant version of Antetype via E-Mail based on the ticket system.
§ 6 Disruption of service / accessibility
(1) Adjustments, changes and additions to the SaaS services contemplated herein as well as measures for identifying and eliminating malfunctions will prompt a temporary disruption of service and/or accessibility only if and to the extent required for technical reasons.
(2) The basic functions of SaaS services are monitored daily. Maintenance for SaaS services is available Monday to Friday from 8.00 AM to 7:00 PM CET as a rule. In the event of major errors (i.e., the use of SaaS services is no longer possible or severely limited), maintenance will – during these hours – be conducted within three hours of such error being discovered by the Provider or reported by the Customer. The Provider will promptly notify the Customer of such maintenance work and complete it as quickly as possible given technical conditions.
If a given error cannot be corrected within twelve hours, the Provider will provide notice thereof to the Customer by email within 24 hours, stating the reasons as well as the anticipated duration of its remediation efforts.
(3) The availability of the services agreed upon in each instance pursuant to § 1 (2) of these Terms, including maintenance work, averages 98.5% over the year; under no circumstances, however, may their availability be limited or disrupted for more than two successive calendar days.
§ 7 Customer’s duties
(1) The Customer undertakes not to place illicit contents violating applicable law, official requirements or third-party rights in the disc space provided.
(2) The Customer must take suitable precautions to prevent unauthorized third-party access to the protected areas of Antetype. For this purpose, the Customer will instruct its staff to observe copyright law as needed.
(3) Irrespective of the Provider’s obligation to back up data, the Customer itself is responsible for entering and maintaining such data and information as may be needed for the use of the SaaS services.
(4) Prior to entry, the Customer must check its data and information for viruses or other damaging components using state-of-the-art virus protection programs.
(5) The Customer itself will generate a user ID and password for its access to and use of the SaaS services, which are required for its future use of the SaaS services. The Customer must keep the user ID and password secret and not make it accessible to third parties.
(6) The contents that the Customer stores using the disc space provided for it may be subject to protection under copyright and/or data-protection law. The Customer hereby grants the Provider the right to make the contents placed on the server available to the Customer online upon request and, specifically, to copy and transmit them accordingly as well as to duplicate them for back-up purposes.
§ 8 Fee
(1) The Customer undertakes to pay to the Provider in exchange for the use of Antetype as well as the provision of disc space the monthly fee agreed pursuant to the current specifications associated with the relevant version of Antetype, plus VAT as required by law. Unless otherwise agreed, such fee reflects the Provider’s rate schedule in effect at the time of the closing. An additional fee may be charged for Antetype upgrades, which offer significantly expanded software functionalities.
(2) The Customer must raise objections to invoices for services rendered by the Provider within eight weeks of its receipt thereof by addressing a written notice to that effect to the office specified on the invoice. Once such period has expired, the Customer is deemed to have approved the invoice. The Provider will specially note the significance of the Customer’s response along with the transmission of the invoice.
§ 9 Warranty for defects, liability
(1) The Provider guarantees the SaaS services’ functional and operational availability pursuant to the provisions of these Terms and in accordance with the current specifications associated with the relevant version of Antetype.
(2) In the event that an unauthorized third party accesses the Provider’s services using the Customer’s log-in data, the Customer bears liability for any resulting fee to the extent permitted by civil law until the Customer’s request for a change of its log-in data or a report on the loss or theft has been received, provided that the Customer is at least partly culpable in such unauthorized third-party access.
(3) If it has reason to suspect that stored data are unlawful and/or violate third-party rights, the Provider may immediately block access to the disc space. A reasonable suspicion as to an infraction or violation of law exists whenever the Provider is so notified by courts, authorities or other third parties. The Provider must inform the Customer of such lock as well as the underlying reason. The lock is to be lifted as soon as the suspicion has been invalidated.
(4) Claims for damages against the Provider are excluded irrespective of legal grounds unless the Provider, its legal representatives or (vicarious) agents acted with willful intent or gross negligence. In cases of basic negligence, the Provider bear liability only in the event that the Provider, its legal representatives, senior staff or (vicarious) agents breached an essential contractual obligation. The Provider’s liability is limited to foreseeable damages that should typically be anticipated. Essential contractual obligations are the obligations that form the basis of the Agreement, critically bore on its execution and on the satisfaction of which the Customer reasonably relies.
(5) The Provider bears no liability for the loss of data insofar as the damages are the result of the Customer’s failure to back up data and ensure in so doing that data lost may be recovered at reasonable expense.
(6) The Provider’s liability is unlimited with respect to damages caused deliberately or through negligence that result from injuries to the life, body or health of the Customer, its legal representatives or (vicarious) agents.
§ 10 Term and termination
(1) The Agreement is concluded for an indefinite period of time.
(2) The contractual relationship begins with the registration by the Customer. If payment is required in the respective version selected by the Customer, the Customer pays in advance for the period selected by him.
(3) The contractual relationship may be terminated by the Customer at any time via the “End Subscription” button contained in the personal settings or via the “deletion of the company”. If the customer has selected a paid version of Antetype, he can continue to use Antetype including all functions until the end of the period he already paid in advance. The latter does not apply to the deletion of the company. In this case, Antetype can no longer be used after the deletion and all related data will be deleted.
(4) The right of either party to terminate the Agreement with immediate effect for cause is not affected. The Provider is entitled to terminate the Agreement with immediate effect, for instance, if the Customer fails to transact payments when due even after receiving a reminder and being allotted a grace period, or if it violates the contractual provisions governing the use of the SaaS services. Irrespective of circumstances, termination with immediate effect requires that the other party received a written reminder and was called upon to cure the alleged grounds for termination with immediate effect within a reasonable period of time.
§ 11 Data protection, confidentiality
(1) With respect to its use of Antetype, the Customer will observe applicable provisions of data-protection law. The Provider is not the controller within the meaning of Art. 4 no. 7 of the General Data Protection regulation (GDPR).
(2) The parties hereto agree that the object and duration of processing, its nature and purpose, the type of personal data, the categories of data subjects and the Customer’s rights and obligations in connection with contract processing, among other items, are set forth in a separate agreement on data processing. Insofar as personal data is processed, the data processing agreement is concluded by Cotype and is made available at www.antetype.com/privacy-policy/.
(3) The Provider undertakes to hold in the strictest confidence and not to share or otherwise exploit such confidential processes, including the Customer’s business and trade secrets, as it may glean in the course of preparing, implementing and rendering performance under these Terms and the Agreement. This applies to relations with any unauthorized third party, including unauthorized staff of both the Provider and the Customer, unless the disclosure of information is needed for the proper discharge of the Provider’s contractual obligations. In cases of doubt, the Provider will obtain the Customer’s consent for such disclosure.
(4) The Provider undertakes to impose requirements identical to those set forth in item (3) above on all staff and subcontractors involved in preparing, implementing and rendering performance under these Terms.
§ 12 Applicable law, legal venue
(1) These Terms and the Agreement are subject to German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) The exclusive legal venue for disputes arising from these Terms and the Agreement is the location of the Provider’s registered offices.
§ 13 Miscellaneous
(1) There are no oral subsidiary agreements. The parties’ changes, amendments and additions to these Terms must be made in writing. The same is true for this formal requirement.
(2) In the event that a provision of these Terms is or becomes ineffective, the remaining provisions hereof continue in full force and effect. The ineffective provision is deemed to have been replaced by such effective one as may best approximate the economic purpose of the ineffective provision. This applies accordingly in cases of a loophole.