Terms of Service

Scope of Application

(1) These General Terms and Conditions (hereinafter "GTC") apply to all contracts between TWWIM UG (haftungsbeschränkt), Stapperstr. 65, 52080 Aachen, Germany (hereinafter "TWWIM"), and its customers regarding the use of the SaaS platform TWWIM AI.

(2) The offering of TWWIM is directed exclusively at entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), legal entities under public law and public-law special funds. Consumers within the meaning of Section 13 BGB are excluded from contract conclusion.

(3) By concluding the contract, the customer warrants that they enter into the contract in the exercise of their commercial or independent professional activity. TWWIM shall be entitled to request appropriate proof (e.g. excerpt from the commercial register, business registration, VAT ID).

(4) Deviating, conflicting or supplementary general terms and conditions of the customer shall not become part of the contract unless TWWIM expressly agrees to their application in text form. This shall also apply if TWWIM renders performance without reservation while being aware of deviating terms of the customer.

(5) These GTC shall also apply in their respective current version to future contracts between the parties without the need for a renewed agreement on their inclusion.

Subject Matter of the Contract

(1) TWWIM provides the customer with access to the SaaS platform TWWIM AI via the internet within the scope of the booked plan. TWWIM AI is a dialogue and voice-controlled AI assistant for online shops, websites and applications of the customer. Visitors to the customer's platform can interact with the assistant via voice, text or chat input; the assistant answers questions based on the content provided by the customer and performs actions directly on the respective page (e.g. navigation, filtering, selection, shopping cart actions, form filling).

(2) The contract for the use of TWWIM AI is a contract sui generis containing elements of rental law, contract for work and services law, and service contract law. To the extent that individual provisions of these GTC do not expressly refer to a specific type of contract, an analogous application of statutory provisions of a specific contract type shall only be considered insofar as it corresponds to the nature of the contract and the intention of the parties.

(3) The integration of TWWIM AI into the customer's platform is implemented at the customer's choice via:

a)

a TWWIM plugin (e.g. for WordPress, WooCommerce, Shopify, JTL Shop),

b)

a generic JavaScript snippet on the customer's website,

c)

any other integration method provided by TWWIM.

(4) The exact scope of functions as well as the included quotas (in particular the number of processed visitor requests, the number of integrated websites, the number of knowledge entries) shall be determined by the plan booked by the customer. The plans valid at the time of the order can be viewed at twwim.ai/pricing.

(5) TWWIM shall be entitled to further develop the scope of services, to add, modify or replace individual functions, provided that this is reasonable for the customer taking into account TWWIM's interests and provided that the essential purpose of the contract is not impaired. Material functional changes that are disadvantageous to the customer shall be communicated to the customer in text form at least 30 days before they take effect; in this case, the customer shall be entitled to terminate the contract extraordinarily with effect from the date on which the change takes effect.

(6) The provision shall be made at the respective transfer point of the server infrastructure operated by TWWIM. TWWIM shall not be responsible for the internet connection between the customer or the customer's end customers and this transfer point.

Conclusion of Contract

(1) The presentation of the plans on twwim.ai does not constitute a binding offer by TWWIM but rather an invitation to the customer to submit an offer.

(2) The customer submits their offer by registering on twwim.ai and selecting a plan. Before completing the order, the customer confirms by appropriate declaration that they are entering into the contract as an entrepreneur within the meaning of Section 14 BGB and that they accept these GTC, the Privacy Policy and the Data Processing Agreement (DPA).

(3) The contract is concluded as soon as TWWIM confirms the customer's registration in text form (by e-mail) or actively activates the service for the customer.

(4) For paid plans, the conclusion of the contract is simultaneously linked to the customer's obligation to pay the agreed remuneration. The order is placed in a payment-obligated manner by clicking the correspondingly designated button.

(5) TWWIM reserves the right to refuse a contract conclusion without giving reasons, in particular if there are doubts about the customer's entrepreneurial status or creditworthiness.

Prices and Payment

(1) The prices displayed on twwim.ai at the time of the order shall apply.

(2) All prices are net prices plus any applicable statutory value added tax.

(3) Invoicing is carried out monthly in advance, unless a different billing period (e.g. annual billing) has been expressly agreed.

(4) Permitted payment methods are credit card and SEPA direct debit via the payment service provider Stripe. Additional payment methods may be agreed upon request.

(5) With the order, the customer grants TWWIM a recurring payment authorisation for the respective billing period. The customer shall ensure that the stored payment method has sufficient funds at all times.

(6) If the customer is in default of payment, TWWIM shall be entitled to:

a)

demand default interest at a rate of 9 percentage points above the respective base interest rate in accordance with Section 288 (2) BGB,

b)

demand a flat-rate sum of EUR 40.00 pursuant to Section 288 (5) BGB,

c)

temporarily suspend the customer's access to the platform after prior reminder and reasonable grace period,

d)

in the event of continued default of more than 30 days, terminate the contract extraordinarily for cause.

(7) The customer may only set off claims against TWWIM's claims with undisputed or legally established counterclaims. The customer shall only have a right of retention insofar as it is based on the same contractual relationship.

(8) Price adjustments are not unilaterally reserved in these GTC. Any adjustment of the prices applicable to the customer shall be made exclusively in accordance with § 13 of these GTC (Amendments to the GTC), and the customer shall have a right of objection and special termination in this respect.

Term and Termination

(1) The contract is concluded for an indefinite period, with the respective booked billing period as the minimum term.

(2) Both parties may terminate the contract ordinarily with a notice period of 30 days to the end of the current billing period.

(3) Termination may be effected in text form by e-mail to [email protected] or via the customer dashboard.

(4) The right of both parties to extraordinary termination for cause shall remain unaffected. Cause for TWWIM exists in particular if:

a)

the customer is in default of payment for more than 30 days,

b)

the customer violates material contractual obligations despite warning,

c)

insolvency proceedings are opened over the customer's assets or rejected for lack of assets,

d)

the customer uses TWWIM AI in a manner likely to expose TWWIM to legal or reputational risks.

(5) After the end of the contract, TWWIM shall be entitled to irrevocably delete all customer-related data after a retention period of 30 days, unless statutory retention obligations prevent this. The customer is obliged to export their data before the expiry of this period.

Customer's Obligations

(1) The customer operates the platform into which TWWIM AI is integrated on their own responsibility. In particular, they shall ensure that the integration of the assistant is carried out correctly from a technical point of view and that their end customers are properly informed about its use.

(2) The customer is responsible for the correct installation of the TWWIM plugin or the JavaScript snippet on their websites, online shops or applications, and for the proper configuration.

(3) The customer ensures that they are authorised to use the content provided by them (product catalogues, knowledge documents, FAQ entries, other uploaded documents) and that no rights of third parties, in particular copyright, trademark, data protection or personality rights, are infringed.

(4) The customer informs the visitors of their platform in accordance with Art. 13 GDPR transparently about the use of TWWIM AI and the associated processing of personal data. Consent of visitors shall remain required to the extent that it arises from applicable law. TWWIM provides sample texts as an aid for this purpose; these do not replace legal advice and do not release the customer from their own responsibility to verify.

(5) Before processing personal data of visitors to their platform, the customer is obliged to conclude the Data Processing Agreement (DPA) under Art. 28 GDPR offered by TWWIM.

(6) The customer undertakes not to use TWWIM AI improperly. In particular, the customer shall not use TWWIM AI in order to:

a)

process or distribute unlawful content, content infringing personality rights or content violating morality,

b)

circumvent security measures of TWWIM,

c)

overload or disrupt TWWIM's technical infrastructure,

d)

generate automated requests in a manner that exceeds the contractually agreed use.

(7) The customer shall keep their access data secret and protect it against access by third parties. In case of suspected misuse, TWWIM shall be informed without delay.

(8) The customer shall indemnify TWWIM against all third-party claims based on a culpable breach of the aforementioned obligations, including reasonable costs of legal defence.

Availability and Service Level

(1) TWWIM provides the SaaS platform with an availability of at least 99.0 % on an annual average.

(2) The following shall be excluded from the availability calculation:

a)

scheduled maintenance work that TWWIM announces at least 48 hours in advance by e-mail or via the customer dashboard; scheduled maintenance work shall be carried out outside the usual business hours where possible,

b)

circumstances outside TWWIM's control, in particular force majeure, failures at upstream suppliers or infrastructure providers (e.g. hosting provider, internet routing), governmental orders, strikes, cyberattacks,

c)

impairments based on faulty configuration by the customer, the customer's intervention in the software or a breach of customer obligations.

(3) In the event of a proven failure to reach the agreed availability in the respective billing month, the customer shall be entitled to a credit on the monthly remuneration as follows:

a)

availability below 99.0 % down to and including 98.0 %: 5 % of the monthly net remuneration,

b)

availability below 98.0 % down to and including 95.0 %: 10 % of the monthly net remuneration,

c)

availability below 95.0 %: 25 % of the monthly net remuneration.

(4) The credit pursuant to paragraph 3 shall be set off against the next invoice or, if no further invoice follows, reimbursed to the customer. The credit claim is conditional on the customer's written assertion within 30 days after the end of the affected billing month.

(5) A reduction of the contractual remuneration pursuant to provisions of rental law (in particular Section 536 BGB) is excluded. The customer retains the reimbursement claims regulated in paragraph 3; further claims for damages shall remain unaffected in accordance with § 9 of these GTC.

Warranty

(1) TWWIM warrants that the SaaS platform is essentially functional when used in accordance with the contract and that it does not exhibit defects that significantly impair the contractually agreed use.

(2) An insignificant impairment of functionality that only insignificantly restricts the contractually agreed use shall not give rise to claims for defects.

(3) Strict liability for initial defects within the meaning of provisions of rental law is excluded to the extent permitted by law.

(4) Defects shall be notified to TWWIM without delay in text form after discovery and described as precisely as possible (reproducibility, function affected, time of occurrence, effects).

(5) TWWIM shall be entitled to remedy defects at its own discretion either by eliminating the defect or by providing a defect-free version (subsequent performance). If subsequent performance ultimately fails despite a reasonable grace period, the customer may, under the statutory conditions, reduce the remuneration or withdraw from the contract.

(6) Claims of the customer based on defects shall become time-barred 12 months after the provision of the defective service. The shortening of the limitation period under sentence 1 shall not apply to:

a)

claims based on intent or gross negligence of TWWIM, its legal representatives or vicarious agents,

b)

claims based on injury to life, body or health,

c)

claims based on the breach of material contractual obligations (cardinal duties),

d)

claims based on fraudulently concealed defects,

e)

claims falling under a guarantee expressly assumed by TWWIM,

f)

claims under the German Product Liability Act.

The statutory limitation periods shall apply to such claims.

Liability

(1) TWWIM shall be liable without limitation:

a)

in cases of intent and gross negligence,

b)

for damages resulting from injury to life, body or health,

c)

under the provisions of the German Product Liability Act,

d)

to the extent of any guarantee expressly assumed by TWWIM.

(2) In cases of slight negligence, TWWIM shall only be liable for the breach of material contractual obligations (cardinal duties). Material contractual obligations are those obligations the fulfilment of which is essential to the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely. In such cases, liability shall be limited to the foreseeable damage typical for the contract.

(3) TWWIM's liability pursuant to paragraph 2 shall be limited in amount to the net remuneration actually paid by the customer in the 12 months preceding the damage-causing event.

(4) Any further liability of TWWIM, in particular for indirect damages, lost profits, missed savings, loss of data or third-party claims, shall be excluded to the extent that mandatory statutory provisions do not prevent this.

(5) For loss of data, TWWIM shall only be liable in the amount of the expenditure that would have been necessary to restore the data in the case of proper and regular data backup by the customer.

(6) TWWIM shall not be liable for damages attributable to the customer's breach of their obligations under § 6 of these GTC.

(7) The above limitations of liability shall also apply in favour of TWWIM's legal representatives, senior employees and other vicarious agents.

(8) TWWIM's liability for damages resulting from the conduct of TWWIM AI towards the customer's end customers (e.g. incorrect answers, inaccurate product recommendations, faulty actions on the website) shall be excluded unless one of the constellations under paragraph 1 applies. The customer operates TWWIM AI on their own responsibility within the framework of their own business operations.

Confidentiality

(1) The parties undertake to keep all confidential information of the other party obtained in the course of contract performance secret and to use it only for purposes of contract performance.

(2) Confidential information includes all information that is marked as confidential or that is recognisable as confidential from the circumstances, in particular technical data, business strategies, customer lists, source code, price calculations and all information that constitutes a trade secret within the meaning of Section 2 No. 1 of the German Trade Secrets Act (GeschGehG).

(3) The confidentiality obligation shall not apply to information that:

a)

was demonstrably already generally known at the time of disclosure or has subsequently become generally known without fault on the part of the recipient,

b)

was demonstrably already known to the recipient at the time of disclosure,

c)

the recipient has demonstrably received lawfully from a third party without any confidentiality obligation,

d)

the recipient has demonstrably developed independently and without reference to the information of the other party,

e)

must be disclosed due to statutory, official or judicial orders.

(4) The confidentiality obligation shall apply for the duration of the contract and for a period of three years after the end of the contract. For trade secrets within the meaning of the GeschGehG, no time limitation shall apply.

Data Protection

(1) In processing personal data, the parties shall observe the provisions of the GDPR, the German Federal Data Protection Act (BDSG) and other relevant data protection regulations.

(2) Insofar as TWWIM processes personal data on behalf of the customer, the parties shall conclude a Data Processing Agreement (DPA) pursuant to Art. 28 GDPR. The DPA is part of the contract and can be accessed at twwim.ai.

(3) Insofar as TWWIM processes personal data as a data controller (e.g. customer master data), the provisions of TWWIM's Privacy Policy, available at twwim.ai, shall apply.

Rights of Use

(1) TWWIM grants the customer for the duration of the contract a simple, non-exclusive, non-transferable and non-sublicensable right to use the SaaS platform TWWIM AI within the scope of the booked plan.

(2) All rights to the SaaS platform TWWIM AI, including the source code, database structures, AI models used, algorithms, documentation and all associated industrial property rights, shall remain exclusively with TWWIM.

(3) The customer is in particular prohibited from:

a)

decompiling, reverse engineering or disassembling the software, except as permitted by mandatory statutory provisions (in particular Section 69e of the German Copyright Act, UrhG),

b)

copying, modifying or creating derivative works from the software in whole or in part,

c)

transferring the software to third parties for use, renting it out or otherwise distributing it,

d)

removing or altering notices regarding TWWIM, copyright notices or other notices of protective rights.

(4) Content provided by the customer in the course of using TWWIM AI (product catalogues, knowledge documents, configurations) shall remain the property of the customer. The customer grants TWWIM the rights of use necessary for contract performance.

Amendments to the GTC and Prices

(1) TWWIM shall be entitled to amend these GTC as well as the prices of the individual plans with effect for the future, insofar as this is necessary in order to:

a)

react to changes in the legal situation,

b)

implement supreme court rulings,

c)

reflect technical further developments,

d)

close regulatory gaps,

e)

restore the contractual balance of value in case of unforeseeable changes in general cost development (in particular hosting, personnel, licence, energy or tax costs).

(2) Amendments affecting material contractual obligations or the main performance obligations of the parties (including the amount of remuneration to a not merely insignificant extent) shall only be possible with the express consent of the customer.

(3) Other amendments shall be communicated to the customer in text form (by e-mail) at least 30 days before they take effect. The notification shall contain an express reference to the amendment and to the customer's right of objection.

(4) If the customer does not object to the amendment in text form within 30 days of receipt of the notification of amendment, the amended conditions shall be deemed accepted. TWWIM shall expressly inform the customer of this legal consequence in the notification of amendment.

(5) If the customer objects to the amendment within the deadline, TWWIM shall be entitled to terminate the contractual relationship with a notice period of 30 days to the end of the current billing period. Until the amendment takes effect or until the termination of the contract, the previous conditions shall remain unchanged.

(6) Any cost reductions affecting the contractual balance of value pursuant to paragraph 1 lit. e) shall be passed on by TWWIM to the customer in a comparable manner.

Final Provisions

(1) German law shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

(2) Exclusive place of jurisdiction for all disputes arising from or in connection with this contract shall be Aachen, Germany. TWWIM shall also be entitled to bring an action at the customer's registered office.

(3) Place of performance for all contractual obligations shall be Aachen, Germany.

(4) Should individual provisions of these GTC be or become invalid or unenforceable in whole or in part, the validity of the remaining provisions shall remain unaffected. The invalid or unenforceable provision shall be replaced by a valid and enforceable provision that comes closest to what the parties intended in economic terms.

(5) Amendments and additions to this contract shall require text form. This shall also apply to amendments to this text form requirement.

(6) There are no oral side agreements. The contract, these GTC, the Privacy Policy and the Data Processing Agreement constitute the entire agreement of the parties.