General terms and conditions

§ 1 Scope of application.

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  1. These terms and conditions apply to all, including future, services provided by acto GmbH (hereinafter referred to as “provider”), in connection with the provision of services and software as well as the operation of portals, interfaces and Internet services (hereinafter “software”). They govern the contractual relationship between the provider and the entrepreneurs (hereinafter referred to as “customer”) who access or use the software.
  2. The provider's offers are aimed exclusively at entrepreneurs within the meaning of Section 14 BGB, i.e. natural or legal persons or partnerships with legal capacity who, when concluding a legal transaction, act in the exercise of their commercial or independent professional activity. Only these are customers within the meaning of these terms and conditions. In this respect, the provider refuses to conclude a contract with consumers. When concluding the contract, the customer declares that its use is primarily attributed to his commercial or independent professional activity.
  3. “Customers” are also understood to mean all customers who, by means of a separate declaration, enter into or have entered into a paid or free contractual relationship (e.g. by placing an order or registration) with the provider and have accepted these terms and conditions.
  4. Agreements, ancillary agreements, individual guarantees or assurances deviating from these conditions are only valid if they have been recorded in writing and confirmed in writing by the provider (more precisely: by a person entitled to them expressly or by virtue of his body, power of attorney or power of attorney).
  5. Deviating conditions confirmed in accordance with §1 (4) shall, unless explicitly stated otherwise, be considered to have priority over these terms and conditions in the event of conflict.

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§2 Scope of service.

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  1. The provider operates a software as a service solution that translates the customer's raw data into concrete activity suggestions for the customer's employees. The aim is to increase productivity thanks to these proactive signals. The software's (AI-supported) algorithms analyse all relevant customer data sources, updated daily and automatically in accordance with the specifications stored in the software. The analyses automatically generate proactive signals for identified abnormalities, risks and potentials in the data.
  2. At the customer's request, the software can be accessed either through seamless integration into existing systems (e.g. CRM system) or by providing employees with a lightweight web application in which the signals and key figures are clearly presented.
  3. The provider is currently focusing primarily on the “Sales” division. Here, customer data (in particular order and customer data from the ERP and CRM system) is automatically analyzed in accordance with the requirements stored in the solution and sales staff is proactively informed of customer anomalies, risks and potential.

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§ 3 Scope of services & right of use.

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1. As part of the software transfer, the provider makes the software available to the customer for use for its own purposes during the term of the contract. Key features of the software include:

  • Provision of the technical infrastructure and processes for combining, aggregating and processing the data provided by the customer from the relevant systems (currently primarily order and customer data) as a preparatory measure for carrying out the analyses
  • Carrying out the analysis as part of the relevant use cases for proactive management of the company (currently focus on sales)
  • Derivation of proactive signals and integration of them into the primary system to be named by the customer or provision of a web application
  • Provision of a front end to set the individual use cases and to display the status of the individual signals

2. The software stored in the provider's infrastructure is accessed and used via an Internet connection using an Internet browser, with the website being notified to the customer before use.

3. The provider is not responsible for ensuring the data connection between the transfer point and the customer's IT systems. It is the customer's responsibility to create the technical requirements for receiving the software at the transfer point and using it.

4. The customer receives a simple, non-transferable, non-sublicensable, spatially unlimited and non-exclusive right of use of the software limited to the individual term. There is no physical transfer of the software, but the software remains in the provider's infrastructure at all times.

5. The specified users are allowed to use the software. Users receive access authorization in the form of a user name and a password. Passwords can be changed by the respective user.

6. The customer may not transfer the software and associated documentation to third parties, either free of charge or against payment. The customer may neither rent, lease, lease the software nor use ASP (Application Service Providing) without prior written consent from the provider. In addition, see §4 (5).

§ 4 Customer's obligation to cooperate.‍

1. After a work environment has been set up for the customer by the provider, he is responsible for maintaining the confidentiality of all authentication data assigned to him, such as logins, passwords, tokens or API keys (collectively “access data”). He will not pass this on to third parties and is in particular responsible for any misuse that takes place with the access data assigned to him.

2. The customer is also obliged to prevent unauthorized access to the software by third parties by taking appropriate measures. For this purpose, the customer will, if necessary, inform his employees of compliance with copyright law. In particular, the customer will ask his employees not to make any unauthorized copies of the software.

3. The customer himself is responsible for entering and maintaining the data and information required to use the service offered — without prejudice to the provider's obligation to back up data.

4. The customer also undertakes to comply with these terms and conditions when using the software and to exercise normal business care. In particular, this means:

  • not to exploit occurring program errors to your advantage, but to report them immediately.
  • not to manipulate the program or its infrastructure.
  • not use the program for illegal or unfair purposes.
  • not to spread viruses, worms or other malicious code through the program.
  • not to attempt to obtain the profile and personal data of other customers or to jeopardize the provider's data protection.
  • not to intentionally mislead other customers of the software.
  • not to reproduce, copy, or modify the software.
  • not to translate provided program codes back into other forms of code (decompilation) or to rediscover the production stages of the software (reverse engineering)
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5. The customer is not entitled to rent, resell or otherwise transfer the services provided by the provider to third parties. The exception to this is use within the company as part of regular use. Affiliated companies within the meaning of Sections 15 et seq. AktG, §271 HGB, subsidiaries or locations in other countries are only included if they have been explicitly included in writing as part of the order. In any case, the customer will oblige affiliated companies in the same way in accordance with these terms and conditions and, if necessary, conclude legally necessary contracts for the transfer of data.

6. If there is evidence or serious suspicion that a customer has committed a breach of duty in accordance with § 4 (1-5) or has made an attempt to do so, the provider may exclude the customer from using its services with immediate effect until the matter has been finally clarified.

7. The customer's data required for transaction processing is processed electronically within the framework of the provisions of GDPR/BDSG/TMG. The provider guarantees compliance with the regulations and the customer agrees to the processing of his data in accordance with the provider's currently valid privacy policy to.

8. The customer supports the provider free of charge as part of the integration with expert resources in order to fully ensure a connection of the delivery systems and ensures that the provider has access to the relevant data in the delivery systems. If desired, the same applies to connecting the software to the relevant primary system (in most cases CRM systems) to return the signals.

9. In addition, as part of the integration, the parameters are adjusted to the customer's needs, with the customer providing the provider with competent employees free of charge to ensure problem-free integration.

10. The customer is responsible for ensuring that its IT systems meet the technical requirements and are always up to date. The provider assumes no responsibility for the correct display and functioning of the application if the user uses an Internet browser that the application does not support or that is not up to date.

11. All services, dates and prices mentioned require timely placement of orders and the provision of assistance and supplies by the customer free of charge, on time and in accordance with requirements.
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§ 5 Rights & Obligations, Disclosure and Use of Data.
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  1. The customer provides the provider with his own data within the meaning of the contractual scope of services. In this context, the customer grants the provider a right of use, unrestricted in time and space, to process and reproduce this data. The same applies to files uploaded by the customer to the provider's cloud storage. In the event of faults, the provider is entitled to make necessary changes to the format or structure of the data.
  2. The customer allows the provider to track interactions of its users anonymously in order to further develop the program's algorithm and enable continuous product development and improvement. The data is also used to verify security and data integrity, to develop new products, and for marketing purposes and benchmarking. The analyses and anonymization process are carried out in accordance with the provisions of the General Data Protection Regulation.
  3. The provider undertakes to treat all confidential data and information received from the customer confidentially and to make it available only to persons to whom disclosure is necessary to fulfill the order. The use of the data for any other purpose remains excluded.
  4. After termination of the contractual relationship, the provider must return to the customer all data, documents and data carriers that the provider has received in connection with this contract by handing them over to the customer or making them available for download. The data is provided in a CSV file or another suitable format. Within one week after the customer has downloaded the data, but no later than three months after the end of the contract, the provider completely deletes all data stored by the customer on its servers. Routine electronic back-up copies on IT systems (including emails) are also excluded from destruction, deletion and release. This information or copies is subject to confidentiality in accordance with §12.

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§ 6 Order, prices & terms.
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1. A contractual relationship with the customer is concluded through written or electronic transmission of an order to the provider or by telephone agreement with a customer advisor. It is considered confirmed if the customer does not object to the commercial order confirmation immediately after receipt of it or as soon as the first act of performance (such as the start of use after sending the access data) has taken place.

2. When ordering, the customer will provide all information necessary for the provision of services truthfully and completely. The provider must be informed immediately of subsequent changes, e.g. to the address or the contact person.

3. The fees valid at the time the contract is concluded and announced to the customer from the current price list, a specific offer made earlier or the prices shown on the website apply. All prices are in euros plus statutory sales tax.

4. Should the monthly inflation rate (consumer index) of the Federal Statistical Office exceed the 5% threshold for more than three months, the provider may adjust prices at the same percentage as the officially reported inflation (consumer index) by means of a unilateral declaration. The provider has this right of adjustment twice a calendar year.

5. Irrespective of the application of §6 (4), there is an annual increase of 5% in the fees agreed in the contract.

6. Unless otherwise agreed in writing in the offer or order confirmation, the following modalities apply: The minimum term for each contract from the provider is 12 months. At the end of the minimum contract period, the contract can be terminated for the first time with a notice period of one month. If this does not happen, the contract is extended by a further 24 months after the minimum contract period under the present conditions, unless the contract has been terminated with a notice period of three months before the end of the respective extension period. Effective termination must always be in writing.

7. The fees for each service period are always due in full for the entire term in advance. Invoices are issued exclusively digitally immediately after order confirmation and must be paid within 30 days of receipt by the customer.

8. In the event of late payment, the provider reserves the right to charge default interest of 9% above the respective base interest rate.

9. Both parties reserve the right to extraordinary termination for good cause, provided that the necessary conditions are met. The following circumstances give rise to an important reason:

  • The provider or customer files an insolvency application or the lack of insolvency has been rejected.
  • The provider fulfils its obligations in accordance with §3 and §5 of the Service Level Agreement has repeatedly failed to comply with a grace period of two weeks and under threat of termination of the contract and further cooperation is no longer reasonable for the customer.
  • The provider makes an adjustment to the fees and service content.
  • The customer is in default of payment obligations arising from the contractual relationship due to the payment deadline being exceeded and he has been reminded unsuccessfully with a grace period of two weeks and under threat of termination of the contract.
  • When using the services subject to the contract, the customer culpably violates legal provisions or interferes with copyrights, industrial property rights or naming rights of third parties.
  • When using the distributed services for the purpose of promoting criminal, illegal and ethically questionable acts.
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§ 7 Support.
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  1. The provider provides the customer with customer service by telephone to eliminate technical faults and correct errors that arise when using the software. The provider's customer service is available from Monday to Friday from 09:00 to 18:00 by telephone (+49 5251 6945707) or by e-mail (help@heyacto.com) available.
  2. Further contractual specifications for support include the Service Level Agreement to be removed.
  3. The provider must inform the customer of the software update no later than one week before each update. The software is only updated between 02:00 and 6:00. During the update process, the provider is released from its obligation under §3 (1).
  4. The provider does not guarantee that there is 100% availability of the software. There may be restrictions or disruptions that are beyond the provider's control. The provider may also be exempted from its performance obligation for a specific period of time outside of updating the software with the customer's consent. The customer is obliged to immediately inform the provider in writing (by letter or e-mail) as soon as the software is not available.
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‍§ 8 Liability.
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  1. In principle, the contracting parties are only liable for intent and gross negligence.
  2. The provider is also liable for breaches of essential contractual obligations (so-called cardinal obligations). These are such contractual obligations whose fulfilment has such a significant impact on the contract that their breach poses a risk to the achievement of the purpose of the contract and on whose compliance the customer may rely. Insofar as the cardinal obligations were breached simply by negligence, the customer's claim for compensation is limited to the foreseeable damage typical of the contract, but not more than an amount equal to the order value of the previous 12 months.
  3. The contractor's liability for subsequent damage, including lost profit, is excluded.
  4. The provider is also liable in accordance with legal provisions in accordance with the provisions of the Product Liability Act and for damage caused by injury to the life, limb or health of the customer.
  5. The provider is liable for damage suffered by its vicarious agents.

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§ 9 Copyright.
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  1. The software is protected by copyright in accordance with the provisions on the protection of computer programs. The customer expressly acknowledges the protection mentioned above. Copyright includes in particular the program code, the documentation, the appearance of the software, the design of the user interface and the input and output masks and printouts, the content, structure and organization of the program files, the program name, logos and other forms of presentation within the software. The provider as manufacturer is entitled to all rights resulting from copyright.
  2. The customer is prohibited from any reproduction, use, transfer, change or reproduction of the content of the software — for payment or free of charge — that is not expressly approved. Use, even of parts, outside of this software transfer agreement and the usually intended purpose of the software is expressly prohibited. The software is to be treated in the same way as any copyrighted material. Other parts of the software, e.g. included designs, templates, templates, may only be used in conjunction with the software and are also subject to these terms.
  3. Insofar as trade secrets are revealed to the customer when using the software, he undertakes to protect these secrets for an unlimited period of time. In particular, the customer undertakes to keep software and documentation secret and not to disclose or pass them on to third parties in whole or in part.
  4. Copyright notices, serial numbers and other features used to identify the program must not be removed or changed under any circumstances.

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§ 10 Third party property rights.
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1. The provider declares that the contract software is free from third-party property rights which may prevent or restrict the customer's use in accordance with the contract, and that the provider has ensured through appropriate agreements with the respective person of authorship and other rights holders that granting the rights under this software license agreement is possible and permitted.

2. Within the defined limits of liability in accordance with Section 8, the provider releases the customer from claims by third parties in connection with infringements of property rights when used by the customer in accordance with the contract. The prerequisite for this is that the customer immediately informs the provider of the claims made and does not make any concessions, acknowledgments or equivalent declarations without the prior consent of the provider and that the procedure in accordance with the following section be complied with by the customer.

3. If infringements of property rights are claimed and/or the existing rights are impaired or prohibited, the provider is also obliged, at its option, either.

  • to modify the software in such a way that the actual or alleged infringement of the third party's property rights is excluded, but the software nevertheless complies with the contractual provisions, or
  • the right to obtain that the software can be used in accordance with the contract at no additional cost to the customer.
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§ 11 Claims for defects.
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  1. The provider is liable for deficiencies in the contractual services.
  2. Claims under Section 536a BGB, in particular relating to no-fault warranty liability and the right of self-removal, are excluded.
  3. A material defect exists if the software does not have the contractually agreed quality. Minor deviations do not represent a material defect.
  4. The customer is obliged to immediately inform the provider in writing (by letter or email) of any defects that occur.
  5. Other claims for defects, in particular with regard to the exact features and quality levels (service levels), include the service level agreements to be removed.

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Section 12 Confidentiality and Confidentiality.

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1. The parties are obliged to keep secret all confidential information about the other party that has become known to them in connection with a concluded contract, not to disclose, record or otherwise exploit it, unless the other party has expressly and in writing consented to the disclosure or use of the information as a result of law, court decisions or administrative decisions. If there is no such consent or disclosure, the information that has become known is only to be used to execute a concluded contract.

2. The following are not confidential information in a contract:

  • Information that was already known to the other party.
  • Information that is generally known or publicly available.
  • Information that has been disclosed by a third party without the third party breaching the confidentiality obligation.

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3. The obligations under this paragraph shall also apply for a period of 3 years after termination of the contractual relationship.
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§ 13 Referenceability.
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  1. After placing the order, the customer allows the provider to publish a press release about the order and name it with the company logo provided by the customer on the website links to the customer's website and in printed matter such as flyers or other sales materials from the provider. In addition, the provider is authorized to use the present contract as a reference in the context of other bidding processes or bilateral discussions with potential new customers.
  2. In addition, the client is available as a reference contact to future interested parties of the contractor, although this is only possible after prior consultation, including the details of a contact (e.g. name of the interested party, expected duration of the contact).
  3. The publication of the press release requires prior technical review and approval by the customer.
  4. The customer declares that he is the owner of the rights referred to in paragraph (1). Consequences resulting from the intended use of the company name and/or logo cannot be blamed on the provider. In this respect, the customer releases the provider from any liability.
  5. This consent can be withdrawn in part or in its entirety by the customer at any time and without giving reasons.
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§ 14 Subject to change the terms and conditions.
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  1. The provider reserves the right to adjust these terms and conditions for valid reasons, in particular due to new technical developments, changes in case law or other equivalent reasons. The provider undertakes to inform customers of this in good time in writing. The change becomes part of the contract if the customer does not object in writing to the inclusion in the contractual relationship within one month of receipt of the notification of change.
  2. Should the customer exercise his right of objection, the contract with the old terms and conditions will continue unchanged. The provider's right to terminate the contract extraordinarily remains unaffected.
  3. The customer is obliged to immediately inform the provider in writing (by letter or e-mail) as soon as the software is not available.
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§ 15 Final Provisions.
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  1. Legally relevant declarations and notifications that are to be submitted after the conclusion of the contract must be made in writing to be effective.
  2. These terms and conditions apply exclusively. Any other terms and conditions of the customer or third party are hereby expressly rejected.
  3. There are no additional oral agreements. Amendments, additions and cancellation of this contract must be made in writing. This also applies to the amendment of this written form clause itself.
  4. Should a provision of these terms and conditions be or become void, ineffective or unenforceable in whole or in part, or should a provision necessary per se not be included, the effectiveness and enforceability of all remaining provisions of these terms and conditions shall not be affected. Instead of the void, ineffective or unenforceable provision or to fill the regulatory gap, the parties will agree on a legally admissible provision which corresponds as far as possible to what the parties wanted or would have agreed in accordance with the spirit and purpose of these terms and conditions if they had recognized the ineffectiveness or the regulatory loophole. If the invalidity of a provision is based on a measure of performance or time (deadline or deadline) specified therein, the parties will agree on a provision with a legally admissible measure closest to the original measure. It is the express wish of the parties that this severance clause does not simply result in a reversal of the burden of proof, but that Section 139 BGB is waived in its entirety.
  5. All contracts are subject exclusively to the laws of the Federal Republic of Germany. The application of UN sales law or CISG is excluded.
  6. All legal disputes between the parties arising from and in connection with this contract shall be settled by the ordinary German courts. The exclusive place of jurisdiction is, to the extent permitted by law, the registered office of the provider (Paderborn).
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As of 10/2024‍