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- We are QA Systems GmbH, a company registered in Stuttgart, Germany with registered number HRB 18146. and having its principal place of business at Roggenstr. 11, 71334 Waiblingen, Germany (hereinafter "Licensor").
- You are any legal entity or Natural Person (herein after “Licensee”). The Licensee is an entrepreneur acting in exercise of his or her trade, business or profession.
- These Terms of Service constitute a legally binding agreement made between Licensor and Licensee entered into by the Licensee clicking-to-accept these Terms of Service at the point of a requesting a subscription (paid for or otherwise) for use of the AI Controller software including associated Software Documentation (hereinafter collectively “Licensed Software”).
- Licensor offers standard Licensed Software for the control and monitoring of requests to and responses from AI (Artificial Intelligence) Large Language Models (LLMs), developed and marketed by Licensor. The provisions specified hereinafter shall regulate the permitted use of the Licensed Software regardless of whether in return for payment or free of charge as well as for temporally restricted use.
- These contractual license Terms of Service are substantial and inseparable part of the respective software license agreement between Licensee and Licensor. If not accepted earlier, Licensee consents by installing, copying or using the Licensed Software in any other way, to the following contractual license terms as Terms of Service. If Licensee does not agree to the terms within these Terms of Service, the installation or use of the Licensed Software in any way is prohibited.
- Any terms and conditions of the Licensee included in or referenced by a purchase order for Licensed Software or in any other document of Licensee conflicting with or deviating from these Terms of Service shall not become part of the license agreement.
- Subject Matter of these Terms of Service is the right of use for Licensed Software that Licensee receives from Licensor as per the definition of these Terms of Service. Licensee may use the Licensed Software only in accordance with the terms and conditions of these Terms of Service.
- “Licensed Software” means the computer software offered and sold by Licensor including accompanying Subscription License Key, and Software Documentation, all of which denominate the purchased license type, the activation key, the owed quality, the requirements and specifications of the hardware and software environment in which the Licensed Software is to be operated as well as any further specifications. Unless the following provisions of these Terms of Service expressly state otherwise, the term “Licensed Software” shall also include License-Updates and License-Upgrades of the original version as well as Software Updates and Software Upgrades, and any other related software provided by Licensor free of charge.
- Maintenance and Support services are provided by Licensor to Licensee during the Subscription Term. Where Maintenance and Support services are provided (at the sole discretion of Licensor) they shall comprise:
- Upgraded versions of Licensed Software which may from time to time be made available to Licensee.
- Commercially reasonable endeavors to correct errors in Licensed Software which may take the form of workarounds or upgraded versions of Licensed Software.
- Reasonable technical advice and guidance on use of the Licensed Software
- Support provided by telephone, email, and webinar.
- Upon full payment of the respective fee in accordance with section § 1 of these Terms of Service, the Licensee shall be granted the non-exclusive right to use the Licensed Software in accordance with the following conditions and as further specified in the respective License Key.
- The Licensed Software may only be used simultaneously by a Maximum number of Concurrent Accesses (MCA) at the same time in a 24 hour period. Each Access is a unique use of Licensed Software, through the frontend or API Key, from any given machine/user combination (i.e. a chat user interface, and AI-integrated tool, or an agentic system making autonomous LLM requests). The MCA is specified in the License Key supplied to the Licensee by the Licensor.
- The Licensed Software shall be temporally restricted such that it may only be used by Licensee until the end of the Subscription Term date specified in the License Key.
- Licensor offers three different types of licenses: Monthly Subscription License (see § 3.6) Yearly Subscription License (see § 3.7) and Trial Subscription License (see § 3.8),
- Use of the Licensed Software by Licensee for all of these license types is not geographically restricted so may be used at any locations world-wide.
- Monthly Subscription License: Licensee receives a non-exclusive, non-assignable, non-sub-licenseable and revocable right to use the Licensed Software. This right is temporally restricted to one calendar month and ends on the Subscription Term date specified in the License Key.
- Yearly Subscription License: Licensee receives a non-exclusive, non-assignable, non-sub-licenseable and revocable right to use the Licensed Software. This right is temporally restricted to one calendar year and ends on the Subscription Term date specified in the License Key.
- Trial Subscription License: Licensee receives a non-exclusive, geographically unrestricted, non-assignable, non-sub-licenseable and revocable right to use the Licensed Software for testing and evaluation purposes. This right is temporally restricted to one calendar month and ends on the Subscription Term date specified in the License Key. The purpose under the Trial Subscription License type is solely for Licensee to test and evaluate the Licensed Software in order to determine whether or not Monthly Subscription License or Yearly Subscription License and for what number of MCAs such licenses shall be purchased.
- Licensee hereby grants Licensor permission to use any information, ideas, suggestions, and/or reports Licensee submitted to Licensor in marketing or publicity materials associated with the Licensed Software. Licensor will not use any such information in a way which identifies Licensee or Licensor’s project without Licensor’s consent. To the extent that any such information, ideas, suggestions, and/or reports include any intellectual property rights of Licensee, Licensee hereby assigns and agrees to assign all rights in such intellectual property to Licensor.
- Licensee shall not have the right to rent, sub-license or otherwise make the Licensed Software available to third parties, external consultants or affiliated companies. The Licensed Software can only be resold subject to a complete transfer of the Licensed Software. If the Licensed Software is sold to a third party, Licensee must delete the Licensed Software and any copies from all its computer units and all its other hardware.
- Licensee may not modify, decompile or decrypt the Licensed Software. The Licensed Software’s monitoring functions or expiration of access keys may not be deactivated. Copyright signs, trademarks, serial numbers or any other sign to identify the Licensed Software shall not be removed or altered. Only if all conditions of §§ 69d para 3, 69e German Act on Copyright and Related Rights (Urheberrechtsgesetz, UrhG) are met shall Licensee have the right to modify the Licensed software if this is necessary for the use of the Licensed Software in accordance with the contractual purpose. Any other change, modification or adaption of the Licensed Software, its Software Documentation or sections thereof in any way are prohibited.
- At the expiry of the Subscription License Term specified in the License Key, Licensee shall immediately cease to use the Licensed Software and shall completely and finally delete the Licensed Software as well as any copy made, the License Key, Software Documentation and any other accompanying documents from all used hardware, servers or other data storage location and to destroy any accompanying documents by himself at own expenses. Licensee shall provide written evidence of the destruction and deletion of the Licensed Software when requested by the Licensor. [bodytext]
- License management of the permitted contractual use of Licensed Software by Licensee is performed by a license key system to validate an control use as specified in the Software Documentation. For the license management Licensee may select the default Cloud Licensing (validation through a connection to a cloud license server) or On-Premise licensing (validation locally without external communication).
- For On-Premise licensing, if the License Management Software is installed on a Virtual Machine or on a Terminal Server, Licensee must not permit more than one (1) instance of such license manager to run at any time. Licensee will maintain a complete and unaltered set of On-Premise license manager user logs for the duration of two years and provide Licensor a copy of such logs on request. In the event that such logs show usage in excess of the number of Maximum Concurrent Accesses (MCAs) as specified in the License Key, Licensee will pay damages for such excessive use and purchase additional licenses to cover future excessive usage.
- Licensee must not engage in any other activity involving the Licensed Software or Software Documentation, or other IP of Licensor that is not expressly authorized in writing by Licensor.
- Licensee undertakes to protect the Licensed Software and the License Key, from unauthorized access and from use beyond what is permitted under these Terms of Service.
- Licensor is upon request and only during the regular business hours of Licensee entitled to audit and verify that Licensee uses the Licensed Software in a way as is permitted by these Terms of Service and the corresponding contractual relationship. Licensor shall make sure that such audit only involves minimum interruption to Licensee’s course of business.
- The parties shall not disclose, publish or make available to any third party any confidential information or trade secret of the other party except if this is required by law. The parties will grant access to confidential information only to persons that are by law or contract bound to confidentiality and need to know the information.
- In the event of a violation of the provisions of these Terms of Service or any other infringement of Licensor’s rights by Licensee, Licensee shall immediately inform the Licensor and pay a contractual penalty – without prejudice to any claims for damages. This contractual penalty for each act of infringement amounts to the higher of (a) the Subscription License fee applicable to Licensee’s actual use of Licensor’s Software in excess of the permitted Use under the license type purchased by Licensee or (b) the profit gained by Licensee by and in relation to the infringement or violation. The Licensee reserves the right to prove that Licensor has suffered less or even no damages. Any contractual penalty paid will be set off against the Licensor’s claim for damages.
- In the event of an infringement or violation of any of his rights in connection with the Licensed Software, the Licensor may further end the contractual relationship and revoke the license granted.§ 4.12 applies.
- Licensee undertakes to inspect the Licensed Software immediately after it has been received or downloaded as well as immediately after it is installed by Licensee, as far as this is possible in the ordinary course of business and, if there is any defect, to immediately give notice to the Licensor. If Licensee fails to give notice of the defect in due time, the Licensed Software is considered approved unless the defect is one which could not be recognized during the inspection. If such a defect appears, notice has to be made immediately after the defect could have been discovered; otherwise the product is considered to be approved. This shall not apply if and in as far as the Licensor has fraudulently concealed a defect. § 377 HGB (German Commercial Code) applies.
- The owed quality of the respective Licensed Software is specified by the License Key and the Software Documentation of the respective Licensed Software.
- Faults of the Licensed Software that have appeared after an intervention in the Licensed Software by Licensee himself or through any third party without the prior written consent of Licensor shall not be deemed a defect. Licensee is free to provide evidence showing that the Licensed Software’s defect was not caused by the intervention. The same applies if the Licensed Software is used on a Platform which does not meet the requirements defined in these Terms of Service, the License Key, or the Software Documentation.
- Licensor is not liable for defects following the decision of Licensee to refrain from installing (as per the directions of Licensor) a software update provided by Licensor that is necessary in order to maintain the proper functioning of the Licensed Software as provided for in this contract, within a reasonable time after having received a respective information about the update.
- In case of a defect Licensee is entitled to choose the option of remedying the defect or delivering a substitute for the Licensed Software (subsequent performance). Licensor is, however, entitled to refuse the option of subsequent performance chosen by Licensee if it would result in disproportionate costs or if Licensee has not paid the Subscription License fees.
- Licensor warrants that the owed quality of the software will be maintained during the Subscription License Term. The Licensor shall remedy any material defects and defects of title in the Licensed Software within a reasonable period of time and only during business hours of Licensor if and insofar such modification, amendment or update of the Licensed Software is necessary to meet the current state of the art. Licensee shall grant Licensor the necessary access to the Licensed Software for this purpose. The Licensee is obligated to notify the Licensor in writing of any defects in the Licensed Software immediately after their discovery and describe the time of occurrence of the defect and its detailed circumstances.
- The limitation period for any warranty claims shall correspond to the Subscription License Term.
- The Licensor is only liable for the loss of data and/or programs to the proven amount of the costs that would be incurred assuming the Licensee carried out regular data back-ups to ensure that the lost data can be restored with a reasonable effort.
- Licensor does not grant any implied guarantees.
- Licensor shall be liable without limitation for all damages caused intentionally or due to the Licensor’s gross negligence, for damages to life, limb or health as well as in accordance with the provisions of the German product liability law (Produkthaftungsgesetz). In case of a slight negligence with a breach of cardinal obligations that fundamentally compromise the purpose of the contract, the liability of the Licensor is limited to the amount predictable and typical for the type of transaction in question for the Licensor. Any other liability of the Licensor is excluded, unless stated explicitly otherwise in these Terms of Service. This limitation applies to the personal liability for damages caused by Licensor’s employees, representatives, agents and any other person acting for and on behalf of Licensor as well as to Licensee’s demands for futile expenses instead of a claim for compensation for damages rather than performance itself.
- Licensor’s total liability arising out of or in connection with these Terms of Service and in relation to anything the party concerned may have done nor not done in connection with these Terms of Service (and whether the liability arises because of a breach of contract, negligence or for any other reason) shall be limited to an amount equal to the total amount paid or payable by Licensee for the respective Subscription License during the twelve months period preceding the date of the claim giving rise to such liability.
- Compensation for damages which Licensee incurs when using patches and/or prototypes, that are still at the development stage and have not yet been approved, is excluded. This shall not apply to damages claims based on intent or gross negligence as well as to claims resulting from damages to life, limb or health and claims according to the provisions of the German Product Liability Law (Produkthaftungsgesetz).
- In the case of Licensed Software provided to the Licensee free of charge, the Licensor does not provide any warranty or liability for material defects, except in the event of fraudulent or malicious intent and for bodily injury and personal damage based on the Product Liability Act.
- Licensee is informed that in accordance with the relevant export conditions of the Federal Republic of Germany, the European Union and/or the United States of America, exporting the Licensed Software or the Software Documentation may be subject to a permission or may be excluded – e.g. due to their nature or intended use or final destination – and that infringement of such conditions may be subject to prosecution. Licensee is, therefore, responsible for strictly observing all national or international relevant and applicable export conditions and for obtaining any permissions or approvals that may be required for export. With regard to this, Licensee in particular shall take note of the following rules and regulations:
- If the Licensed Software is intended to be used in relation to armament, nuclear technology or weapons technology and/or supplied to the military with the approval of the relevant and in particular national authorities, this approval must be obtained in advance and in any event of resale;
- The Licensed Software must not be delivered to companies and individuals listed in the “List of Parties of Concern”, including but not limited to the “Denied Persons List”, the “Entity List” and the “Unverified List” of the US Department of Commerce and to companies and individuals listed in the “Specially Designated Nationals and Blocked Persons List” of the US Department of the Treasury;
- EU-Council Regulations on sanctions and embargoes, in particular the prohibition to deliver the Licensed Software to persons mentioned in the EU-Council Regulations (EU) 2021/821, (EU) 258/2012 and (EU) 2019/125;
- The relevant and applicable UN resolutions,
- And the relevant and applicable German laws and lists issued by the responsible German authorities.
- Should Licensee breach any of its export control obligations, Licensee will indemnify Licensor at first request from all claims and will provide full compensation for damages asserted against Licensor by third parties or state and/or international bodies or organizations.
- Licensee may only offset with a claim that is undisputed or declared legally binding by final judgment.
- Any amendments and addenda to these Terms of Service, shall only be valid if concluded in writing between authorised nominees of both Licensor and Licensee.
- Licensor shall have the right to assign or transfer its rights, obligations and claims under these Terms of Service to any third party. Licensee may assign or transfer its rights, obligations and claims under these Terms of Service after prior written approval by Licensor.
- The invalidity of individual provisions of these Terms of Service shall not affect the validity of the remaining regulations. The Licensee und Licensor shall replace the invalid condition by a regulation whose intended legal and economic purpose is as close as possible to that of the invalid regulation. The same shall apply if a loophole requiring regulation or supplementation becomes apparent during the execution of these Terms of Service.
- Licensor may contact Licensee regarding the provision of essential information concerning the proper use of the Licensed Software (including but not limited to: available security updates, updates necessary to maintain the proper functioning of Licensed Software, remedy of defects of Licensed Software, reminder for the approaching expiry of the Subscription License or available upgrades (updates with enhanced functionality) without prior request of Licensee via the licensed software, via e-mail or by letter to the address stated at the time of purchase or updated later by Licensee. The legal basis for potential processing of personal data is Art. 6 paragraph 1 lit. f GDPR. In case of an objection to this data processing, Licensor shall be entitled to terminate the contractual relationship with a reasonable period of notice after weighing the interests of both parties and taking into account the scope of data processing still permissible, if Licensor cannot reasonably be expected to continue the contractual relationship until the agreed term of the contract. Further information about the processing of personal data as well as the rights of the data subject are to be found in the Data Protection Policy which is available from the website of licensor via https://www.ai-controller.ai/data-protection/.
- These Terms of Service shall be governed exclusively by the substantive laws of the Federal Republic of Germany; the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
- In the case of any disputes between the Parties arising out of or in connection with these Terms of Service, the registered office of the Licensor is agreed to be the place of performance. The Stuttgart Commercial Court, Germany shall have jurisdiction. The Licensor is entitled to sue the Licensee at his general place of jurisdiction or at the place of the copyright or intellectual property rights infringement.
