Glogauer Str. 5, 10999 Berlin
(hereinafter referred to as "Provider")
for the use of the application smao
1. General provisions and subject of performance
1.1 The Provider makes available to its customers a web-based software (Software as a Service) including maintenance and care in accordance with these terms and conditions.
1.2 The services offered by the Provider are exclusively aimed at entrepreneurs within the meaning of § 14 BGB and freelancers. No contracts will be concluded with consumers/private individuals within the meaning of § 13 BGB.
1.3 The Provider does not recognize any terms and conditions that deviate from these business conditions and are used by the customer, unless expressly agreed otherwise. Individually agreed services take precedence over the regulations of these terms and conditions.
2. Subject matter of the contract and services
2.1 The Provider makes a software (hereinafter referred to as "smao") available to the customer, with which the customer can set up and operate a digital telephone service or telephone assistant. Thus, smao can process, prepare, forward external inquiries directed to the customer automatically with the help of AI and, if necessary, offer follow-up scenarios for the inquiry. The current range of functions of smao is outlined in the respective service description in the offer or on the website.
2.2 The subject matter of the contract exclusively includes the provision of the software for use over the Internet as well as the granting of storage space on the Provider's servers. To this end, the Provider sets up smao on a server that is accessible to the customer via the Internet. Customers receive access data from the Provider for smao and can configure the software themselves via a dashboard within the framework of the contractual agreement.
2.3 The Provider will promptly eliminate all software errors in accordance with technical possibilities. An error exists in particular when smao does not fulfill the functions specified in the service description, provides incorrect results, or otherwise does not operate in a functional manner, so that the use of smao is not possible or only limited.
2.4 The Provider delivers its services while observing the respective state of technology. It continuously develops bla and improves it through regular updates and upgrades. [A2] [A3]
2.5 The availability of smao is 98.5% on an annual average, including maintenance work, but availability may not be impaired or interrupted for more than two calendar days in a row. Necessary regular maintenance work and periods in which availability is restricted due to events for which the Provider is not responsible (e.g. force majeure, actions of third parties, or changes in the legal situation) are excluded from this.
3. Usage rights to the software
3.1 The Provider grants the customer the non-exclusive and non-transferable right to use smao within the framework of the SaaS services for the duration of the contract as intended. The customer may only modify or reproduce smao to the extent provided for in the respective service description. Necessary reproduction includes loading smao into the memory on the customer’s server/computer, but not temporary installation or storage of smao on storage media (e.g., hard drives) of the hardware used by the customer. [A4] [A5]
3.2 The customer is not entitled to make smao or the provided storage space available to third parties, either partially or completely, for a fee or free of charge. A subletting of smao is expressly prohibited for the customer.
4. Provision of storage space
4.1 The Provider grants the customer storage space on a server for storing the data necessary for using smao. If the storage space is limited, this will be communicated to the customer at the time of the contract conclusion. All details regarding order processing, data storage, and data security (especially regarding the handling of personal data, backups, and technical and organizational measures) result from Annex A1.
4.2 Based on the regulations contained in Annex A1 – AVV, the Provider ensures that proper processing and storage of the (possibly personal) data takes place and that a secure connection to the Internet is guaranteed.
4.3 The customer remains exclusively entitled to their data in any case; details about any claims for release and storage periods are governed by Annex A1.
5. Free trial access
5.1 Customers who have never been registered (new customers) may be granted free trial access for a period defined by the Provider (e.g., 7 days) after registration.
5.2 Registration occurs when the customer selects the trial period, enters the mandatory information, and completes the registration by clicking the sign-up button after going through all other required steps.
5.3 The free trial access allows the customer to use smao and its functions free of charge for the specified period.
5.4 The Provider reserves the right to change the services of smao at any time during the trial period, particularly to restrict or discontinue them.
5.5 Both parties can terminate the trial access during the trial period without notice.
5.6 The service relationship for the trial access automatically transitions into a paid subscription after the expiration. Further provisions regarding the duration can be found in Section 14.
6. Support
6.1 Application or software issues will be addressed by the Provider as part of the support. Support is generally available on weekdays from Monday to Friday, 09:00 am – 06:00 pm. Support inquiries should be submitted via the designated contact option on the website or through a provided ticket system. Inquiries will be processed in the order they are received during regular business hours.
7. Use of Artificial Intelligence (AI)
7.1 The Provider is entitled to use technologies of Artificial Intelligence (AI) for the creation of content (e.g., text, image, sound, or video) within the scope of service provision. The details, especially regarding GDPR-compliant usage, are outlined in Annex A1.
7.2 The Provider guarantees that content created wholly or in part with AI does not infringe third-party rights. If exclusive usage rights for AI-generated content are to be transferred, the Provider will ensure that such transfer is possible (e.g., by modifying the AI-generated results).
7.3 A separate labeling of AI-generated content is only required when and as far as it is legally mandated or where it is foreseeable that such labeling obligation will be legally introduced in the future.
7.4 The Provider regularly checks and updates the AI system.
8. Impairment of accessibility
8.1 Adjustments, changes, and additions to the contractual application, as well as measures aimed at detecting and correcting malfunctions, only lead to a temporary interruption or impairment of accessibility when this is technically unavoidable.
8.2 The fundamental functions of smao are monitored daily. The maintenance of the SaaS services is generally ensured on weekdays from Monday to Friday, 09:00 am – 06:00 pm. In the case of serious faults that render the use of smao impossible or severely restricted, maintenance will be initiated within 3 hours of being made aware or informed by the customer. The Provider will promptly inform the customer of the maintenance work and carry it out as quickly as technically possible. If the fault cannot be rectified within 12 hours, the Provider will inform the customer within 24 hours by email about the reasons and expected duration of the fault correction.
9. Customer obligations
9.1 The customer is obliged to keep the information provided at registration up to date and to refrain from violations of these terms and conditions as well as applicable law. They must ensure that the Provider's claims are settled in a timely manner. Furthermore, only the customer themselves may use their account; access data must be treated confidentially and protected against access by third parties. If the customer culpably violates this obligation, they are liable for any resulting damages.
9.2 The customer is obliged to use smao only for the intended purpose and to comply with all contractual and legal regulations when using smao. In particular, the customer is prohibited from:
registering multiple times under different identities,
spreading false or misleading claims about smao,
violating these terms and conditions or applicable law,
automatically retrieving data (e.g., using crawlers),
distributing content that violates applicable law or good morals.
9.3 Without prejudice to the provisions in Annex A1, the customer is solely responsible for the proper input and maintenance of the data they process in smao. If a loss of data occurs for which the Provider is liable, the Provider's liability is limited to the restoration costs of the data that would have also been lost even with proper data backups by the customer.
9.4 The customer is obliged to check content they enter into smao for viruses or other harmful components in advance and to use appropriate antivirus programs for this purpose.
9.5 To the extent that the customer uploads content to the storage space assigned to them, they must ensure that this content does not infringe third-party rights or violate applicable law. Further details on responsibilities and obligations regarding data processing are contained in Annex A1.
10. Compensation
10.1 The customer agrees to pay the Provider the agreed fee for the provision of smao and the granting of storage space at the agreed intervals. The prices and rates will be communicated to the customer before the conclusion of the contract.
10.2 Objections to the billing of services provided by the Provider must be made by the customer in writing within eight weeks of receiving the invoice to the address indicated on the invoice. After this period, the billing is deemed approved. The Provider will inform the customer about the significance of their silence upon sending the invoice.
11. Blocking and unlawful content
11.1 The Provider is entitled to block smao if the customer is in default of at least one full payment installment or if partial amounts of outstanding payment installments sum up to a full installment. Blocking does not relieve them of the payment obligation.
11.2 No content may be stored in smao that violates applicable law or third-party rights or contravenes good morals (e.g., pornographic, extremist, or violent content). If the Provider detects a violation, they may block or delete the relevant content and require the customer to comment. In the case of serious or repeated violations, the Provider is entitled to terminate the contract without notice.
12. Warranty for defects
The Provider guarantees the functional and operational readiness of smao within the framework of statutory warranty provisions for defects and in accordance with these terms and conditions.
13. Liability and indemnification
13.1 The Provider is fully liable for intent or gross negligence, for violations of life, body, or health, due to a guarantee promise (if agreed) or based on mandatory statutory provisions (e.g., Product Liability Act). In the case of negligent violations of essential contractual obligations, the Provider's liability is limited to typical, foreseeable damages. Otherwise, liability is excluded.
13.2 The above liability provisions also apply to the statutory representatives and vicarious agents of the Provider.
13.3 The customer indemnifies the Provider from all claims of third parties resulting from an illegal or contractual use of smao by the customer; this includes the necessary costs for a legal defense.
14. Duration, termination
14.1 Subject to different regulations, the contract has a minimum duration of one month or 12 months after the expiration of any agreed trial period in accordance with Section 5. The notice period is 3 months before the end of the term. If the contract is not terminated on time, it shall automatically renew for another 12 months each time. The right to terminate extraordinarily and without notice for an important reason remains unaffected, particularly in the event of payment default or significant violations of these terms and conditions.
14.2 Already paid fees for ongoing booking periods will not be refunded in the event of early termination unless there are statutory refund claims (e.g., due to warranty for defects).
15. Release and deletion of data after termination of contract
After termination of the contract, the release or deletion of data stored at the Provider will occur in accordance with the regulations agreed in Annex A1. There is no entitlement to the transfer of software for further use of the data.
16. Confidentiality and secrecy
16.1 The Provider is obliged to treat all confidential information of the customer that becomes known to them during the performance of the contract as strictly confidential. This includes, in particular, business and trade secrets. Disclosure to third parties may only occur to the extent necessary for the fulfillment of the contract. In case of doubt, the customer's consent must be obtained.
16.2 The Provider undertakes to conclude a corresponding confidentiality agreement with all employees and subcontractors involved in this contract. Supplementary regulations on confidentiality and data protection, especially for personal data, are contained in Annex A1.
17. Final provisions
17.1 The contracts between the Provider and the customer are subject to the law of the Federal Republic of Germany, excluding the UN Sales Convention.
17.2 If the customer is a merchant or does not have a general place of jurisdiction in Germany, the Provider's location shall be the exclusive place of jurisdiction for all disputes arising from or in connection with this contract, unless a mandatory exclusive jurisdiction is established by law.
17.3 The Provider is entitled to change these terms and conditions for objectively justified reasons (e.g., changes in case law, legal situation, or corporate strategy) while observing a reasonable notice period. Existing customers will be notified of the changes by email at least two weeks before they take effect. If the existing customer does not respond within the set period, consent is deemed granted. If they object, the changes will not take effect; however, the Provider is entitled to terminate the contract at the time of the changes coming into effect. The change notification includes information on the planned change, the deadline, and the consequences of an objection or its absence.
17.4 All regulations regarding order processing (especially regarding the processing of personal data) are regulated in Annex A1. This becomes part of the contractual relationship between the Provider and the customer.
18. Annexes
The regulations regarding order processing, data security, and data protection contained in Annex A1 will become part of this contract.
As of: January 2025