General Terms and Conditions for Software-as-a-Service by Stenon GmbH

General Terms and Conditions for Software-as-a-Service by Stenon GmbH

Stenon GmbH, Hegelallee 53, 14467 Potsdam (“Stenon“) offers an online platform to evaluate the measurement results of soil samples generated with the Stenon hardware. The online platform is controlled via a dashboard using standard browsers or via the Stenon hardware and is based on an IT infrastructure based on Software-as-a-Service (“Software”), which is provided for a fee. These General Terms and Conditions (“GTC”) govern the contractual relationship between Stenon and the customer regarding the use of the software.

The services of Stenon are offered exclusively to professionals.

1. Subject matter and Conclusion of the Contract; Customer GTC

1.1
These General Terms and Conditions apply to the paid provision of the software by Stenon.

1.2
Use of the software is only offered to professionals within the meaning of Sect. 14 of the German Civil Code. Professionals are natural or legal persons or partnerships with legal capacity who, at the time the contract is concluded, act in the exercise of their trade, business or profession.

1.3
By filling out and submitting the registration form on the online platform, the customer makes an offer to conclude the contract. This usually happens during the initial setup of the first Stenon device. The available billing models depend on whether the device was purchased or leased. Until submission of the registration form, the customer can correct any input errors by clicking on the respective field of the registration form and correct the error. The contract is concluded when Stenon explicitly accepts the customer’s offer or when Stenon activates access to the online platform.

1.4
Additional measuring devices can also be added to the customer’s account at a later date.

1.5
Any general terms and conditions provided by the customer shall only become part of the contract if this has been expressly agreed in writing.

2. Services by Stenon

2.1
Stenon provides the customer access to the software via the Internet for a period of time limited to the term of the contract (“Software-as-a-Service“). Stenon is responsible for the operation and maintenance of the software and the IT infrastructure on which it runs. The place of performance is the router exit of the data centre. The customer is responsible for ensuring that he can receive the service. In particular, the provision of the necessary hardware and software (e.g. browser) by Stenon is not part of the contract. The customer has no right to access the source code of the software provided by Stenon. The customer is responsible for the operation of the software.

2.2
The exact scope of the services to be provided by Stenon are set out within the description of services in force at the time of conclusion of the contract. The customer may also purchase additional service packages during the term of the contract (for example additional measurements or the measurement of additional values and parameters).

2.3
The average availability of the software due is 99% on a monthly average, i.e. the software may be unavailable for up to 7.5 hours per month. This does not include required planned maintenance work as well as malfunctions that are beyond Stenon’s control such as force majeure. Stenon will inform the customer about planned maintenance work in time where reasonably possible via notice in text form to the contact person designated to Stenon. However, Stenon expressly reserves the right to carry out unannounced maintenance work if necessary, especially if this is necessary for data and/or operational safety.

2.4
Stenon performs daily backups of the data stored in the software by the customer, which are kept for three days. Individual checks of the accuracy and completeness of the data backups is neither performed nor owed.

2.5
Stenon provides the customer with a documentation of the software as well as instructions for its use in electronic form in German and/or English language, which may be accessed online for retrieval. The customer is not entitled to edit, distribute or make publicly available the documentation or instructions for use. A printed documentation shall not be due.

2.6
Stenon is entitled to engage subcontractors as vicarious agents for the performance of services at its own discretion.

2.7
Stenon is entitled but not required to extend and develop the functionality of the software. Stenon reserves the right to offer extensions and/or further developments only against payment of an additional fee. If the customer books a paid extension or further development to this contract by means of a corresponding supplementary agreement, these General Terms and Conditions apply accordingly to this booking. If Stenon provides extended or additional functions free of charge after conclusion of the contract, such functions are considered a voluntary service of Stenon.

2.8
Stenon may change the functional scope of the software at any time to an extent reasonable for the customer. The change is particularly considered reasonable if it becomes necessary for good cause – for example, due to disturbances of the performance of services by subcontractors or for safety reasons – and the performance characteristics defined in the service description are essentially maintained as well as the main performance obligations of Stenon. If the changes do not exclusively concern extensions of the function or not only insignificant components of the services to be provided by Stenon, Stenon will inform the customer about the change by e-mail at least four weeks before it enters into force.

2.9
Stenon is entitled to block the customer’s access to the software if

a) there are indications that the customer’s login credentials have been or will be misused or that the access data has been or will be given to an unauthorized third party or that access data is being used by more than one natural person;

b) there are indications that third parties have otherwise gained access to the software provided to the customer;

c) the blocking is necessary for technical reasons;

d) Stenon is legally, judicially or officially obligated to block;

e) the customer is more than two weeks behind schedule with the payment of the agreed remuneration;

f) the customer has submitted wrong or invalid contact data and communication between Stenon and the customer is no longer possible;

g) the customer has deposited incorrect payment data and regular fulfilment of the customer’s performance obligations is not guaranteed.

Stenon shall announce the blocking to the customer at the latest one working day before the blocking, at least in text form, as far as the announcement is reasonable and compatible with the purpose of the blocking under consideration of the mutual interests.

3. Duties of the customer

3.1
The customer must keep the login credentials to the software in a safe place and may only make them accessible to authorized employees. The customer acknowledges in particular that he is liable for all analyses triggered with his account, unless he is not responsible for an improper use. The customer agrees to bind his employees contractually to handle the login credentials confidentially and to inform Stenon immediately if there is a suspicion that login credentials might have been disclosed to unauthorized persons.

3.2
The customer must back up his data himself at regular intervals and in accordance with the risk, insofar as this is technically possible for him. This applies to the data on the customer’s local systems as well as to the data the customer stores on the IT infrastructure provided by Stenon.

3.3
The customer grants Stenon a non-exclusive, worldwide, unlimited licence to use all contents and raw data transferred to the servers of Stenon when using the software, as required for the performance of the contract with the customer, especially to copy the contents and to use them on the platform according to the settings of the customer and to make them available to the end users and other third parties, as well as to use the transferred contents and raw data as well as measured values and analyses generated from them in anonymized form for the improvement of the Stenon software (e.g. by machine learning). Stenon is entitled to grant sublicenses to its vicarious agents as far as this is necessary for the performance of the contract. Otherwise, the licence is not transferable. Stenon is entitled to keep contents by the customer beyond the duration of the contract as far as technically or legally necessary. In particular, Stenon is entitled to keep backup copies of the contents provided by the customer and to retain such information temporarily or permanently which is required for accounting, documentation and billing purposes.

4. Scope of the licences

4.1
Upon execution of the contract, Stenon grants the customer the non-exclusive, worldwide, non-transferable and non-sublicensable right, limited to the term of the contract, to use the software in accordance with the contract and to the agreed scope. All other rights are reserved.

4.2
Excluded from the licence are components of the software that are recognizable to the customer as subject to rights by third parties and in particular open source licenses. Especially the components disclosed by Stenon within the software or in included text files as contents of third parties are considered recognizable.

4.3
The customer may only use the software for internal company purposes and may not, in particular, mediate the use of the software in a SaaS model to third parties for their own use, whether for payment or free of charge, and may not use the services of Stenon for providing own services to his contract partners (e.g. analysis of soil samples for third parties).

5. Information on data protection

Stenon does not process personal data on behalf of the customer. Stenon collects and uses personal data of the customer (especially names and contact data of the contact persons in the customer’s company) according to the applicable data protection laws, especially the GDPR. For further information, please refer to our privacy policy.

6. Fees

6.1
For the use of the software, the customer pays to Stenon the respectively agreed fee according to the respectively agreed service description.

6.2
Unless stated otherwise, the fees are monthly and net plus applicable VAT.

6.3
Unless stated otherwise in the service description, invoices for service packages are issued in advance when the service package is booked. The invoiced fees are due upon receipt of the invoice. If the Customer grants Stenon a SEPA Direct Debit Mandate, Stenon will not debit the invoice amount from the agreed account before the seventh day after the invoice date and the SEPA Pre-Notification.

7. Warranty

7.1
The relevant statutory provisions on warranties under German law apply to free services.

7.2
Otherwise, Stenon is liable for defects in the provision of the software exclusively in accordance with the following provisions.

7.3
Defects are significant deviations from the contractually agreed functional scope of the software.

7.4
If the services to be provided by Stenon under this contract are defective, Stenon will, within a reasonable period of time and after receipt of a written notice of defects by the customer, either repair or re-perform the services at its option. If third party software is used that Stenon has licensed for use by the customer, the remedy of defects shall consist in obtaining and installing generally available upgrades, updates or patches.

7.5
The provision of instructions that enable the customer to reasonably deal with or circumvent defects that have occurred, in order to use the software in accordance with the contract, is also deemed subsequent rectification.

7.6
If the performance of the services without any defects fails for reasons for which Stenon is responsible even within a reasonable period of time notified by the customer in writing, the customer may reduce the agreed remuneration by a reasonable amount.

7.7
Insofar as a fee is agreed for a specific period, the right to reduce the fee is limited to the amount of the monthly fixed price for the defective part of the service for each month in which the defect persists. If the reduction according to this clause reaches the maximum amount mentioned in two consecutive months or in two months of a quarter, the customer may terminate the contract without notice.

7.8
The customer will notify Stenon immediately in writing or by e-mail of any defects that may occur. Furthermore, the customer will support Stenon free of charge in the remedy of defects and will provide Stenon in particular with all information and documents that Stenon needs for the analysis and remedy of defects.

8. Compensation for damages and liability

8.1
Stenon is liable for free services in accordance with the statutory provisions.

8.2
In all other cases, Stenon is fully liable for intent and gross negligence as well as for damages resulting from injury to life, body or health.

8.3
For simple negligence in cases other than those mentioned in clause 8.2, Stenon is only liable in case of violation of a material contractual obligation. A material contractual obligation for the purpose of this provision is an obligation that must be fulfilled in order to make the implementation of the agreement possible in the first place and on the performance of which the Partner may therefore generally rely.

8.4
Stenon is not liable in cases according to clause 8.3 for lack of economic success, loss of profit and indirect damages.

8.5
Liability in accordance with the above clause 8.3 is limited to the typical, foreseeable damage at the time of the conclusion of the contract.

8.6
Liability for damages due to loss of data in cases according to clause 8.3 is limited to the amount for data recovery that would have been incurred even if the customer had regularly backed up the data in accordance with the risk.

8.7
These limitations of liability apply accordingly in favour of the directors, employees, representatives and vicarious agents of Stenon.

8.8
Any potential liability of Stenon for any guarantees (which must be be expressly designated as such in order to be guarantees in the legal sense) and for claims based on the German Product Liability Act remains unaffected.

8.9
Any further liability of Stenon is excluded.

9. Confidentiality and Non-Disclosure

9.1
The customer is required to treat as trade secrets confidential information and documents (“confidential information“) of Stenon that are either obviously to be considered confidential or have been designated by Stenon as confidential, not make them available to third parties and to protect them adequately against unauthorized disclosure, transmission and access. For the purposes of this contract, third parties also include affiliated companies in which the customer does not hold a capital majority and majority of votes. The customer’s employees and other third parties commissioned by the customer (including subcontractors and freelancers) are to be obligated accordingly.

9.2
Confidential information is especially the software itself as well as all technologies of Stenon, and any information that Stenon provides in the context of support requests or cooperation for troubleshooting. The licences granted by Stenon remain unaffected.

9.3
The customer is entitled to pass on the information and documents made available to him to third parties if and insofar as this is indispensable for the fulfilment of this contract or the exercise of contractual rights or if this is mandatory for legal or supervisory reasons. In case of inquiries of third parties, judicial or administrative authorities regarding the disclosure of confidential information, the customer has to inform Stenon immediately in writing or in text form and support Stenon in its efforts to prevent the disclosure of the confidential information.

9.4
The duty of confidentiality does not apply if the confidential information was already known to the customer before disclosure by Stenon, is generally known or becomes known without fault of the customer, was developed by the customer himself without access to the confidential information of Stenon or is brought to the attention of the third party by a bona fide third party authorized to do so. The mandatory legal obligations to inform remain reserved. If the customer invokes one or more of the aforementioned reasons, he has to prove them by presenting suitable evidence.

9.5
The duty of confidentiality begins with the knowledge of the confidential information and continues for the entire term of this contract and beyond that for five years from termination or the end of the contract term, unless statutory provisions provide for a longer duty of secrecy. The customer guarantees within the scope of what is legally possible that the confidentiality obligations are also binding for his successors in title, assignees and affiliated companies.

9.6
During the period of validity of this duty of confidentiality, confidential information have to be returned immediately, undamaged and complete at first request of Stenon. Stenon may also order that certain confidential information have to be destroyed, deleted or put into safekeeping and that the execution has to be confirmed in writing by the customer. The above provisions in this clause only apply to the extent that this does not significantly impair the use of the contractual performance in accordance with the contract.

9.7
Notwithstanding the above provisions, Stenon is entitled to name the customer as a reference customer by stating the full company name and using the company logo in marketing materials (including websites).

9.8
With the exception of Section 9.7, the above provisions do not establish any licences under intellectual property law. All licences granted under this contract remain unaffected by the above provisions.

10. Term and Termination

10.1
Stenon offers different usage models for the Stenon software. Term and ordinary notice periods are laid out within the respective agreed service description.

10.2
Stenon is entitled to terminate the contract without notice if the customer is more than six weeks in arrears with the payment of an agreed fee and Stenon has notified the possibility of termination with a period of two weeks before the termination takes effect in text or written form towards the customer.

10.3
Stenon reserves the right to restrict or discontinue the functionality of the client software or the IT infrastructure for reasons other than those mentioned in clauses 2.7 and 2.8 under the conditions of clause 11.

10.4
The statutory right to extraordinary termination without notice for good cause remains unaffected for both parties.

10.5
Upon termination of the contract, regardless of reason, Stenon will delete the customer’s data. Stenon is entitled but not required to store data for security reasons for a period of four weeks after termination of the contract to protect the customer from accidental loss of data. Stenon is also entitled to store data about the termination of the contractual relationship if Stenon is legally or officially obliged to do so, especially for reasons of commercial and tax law.

11. Changes to these General Terms and Conditions

These General Terms and Conditions may be amended by agreement between the customer and Stenon as described below, if the amendment is necessary due to a change in the applicable law (including case law) or for similar compelling reasons and the main obligations of the parties are not changed to the disadvantage of the customer: Stenon transmits the amended terms and conditions in text form before the planned entry into force and separately points out the new regulations and the date of the planned entry into force. At the same time, Stenon will grant the customer a reasonable period of time of at least six weeks to declare whether he accepts the changed terms of use for further use of the services. If no declaration is made within this period, which begins to run from receipt of the message in text form, the changed terms and conditions are deemed to be agreed. Stenon will separately inform the customer about this legal consequence, i.e. the right to object, the objection period and the meaning of silence, at the beginning of the period.

12. Final provisions

12.1
Changes and additional agreements to this contract must be made in writing. This also applies to this written form clause.

12.2
In case of inconsistencies between the Contract Form and the General Terms and Conditions, the provisions of the Contract Form prevail over the General Terms and Conditions. In the event of contradictions between other Annexes, the Contract Form or these General Terms and Conditions, the provisions of the other Annexes shall prevail.

12.3
The customer is only entitled to offset or exercise a right to retain against claims of Stenon if the counterclaim is undisputed or legally binding or is in a synallagmatic relationship to the respective claim concerned.

12.4
The contractual language is German. Translations into other languages are for the sole purpose of comprehensibility and are not legally binding.

12.5
The law of the Federal Republic of Germany applies excluding the UN Convention on Contracts for the International Sale of Goods.

12.6
The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Potsdam (Germany), provided that the parties to the contract are merchants or the customer has no general place of jurisdiction in Germany or in another EU member state or has moved his permanent residence abroad after these General Terms and Conditions have come into effect or his place of residence or usual abode is unknown at the time of filing a suit.

Status: July 7, 2020

Service description Software-as-a-Service

1. Functions of the software

1.1
Farm Management

– Create fields by directly drawing or importing shape files (only selected shape formats are allowed)
– Creation and management of different operations
– User management per operation
– Individual assignment of measuring devices (FarmLab) per operation

1.2
Measurements

– The measuring range of the instrument depends on the type of soil. The measurement result is valid for a measuring depth of 0-30 cm. The FarmLab/XLab is only intended for soil analysis of sandy, silty and loamy soils. The measuring range over all soil types is shown below.

Analysis of soil nutrients

Soil nutrient	Measuring range
Nmin	> 0.5 to < 6 mg/100 g
N total	> 0.1 to < 0.4 %
P	> 2.5 to < 22 mg/100 g
K	> 4 to < 25 mg/100 g
Mg	> 2.5 to < 22 mg/100 g /td>

Analysis of soil quality

Bodennährstoff	Measuring range
Corg	> 1 to < 3 %
pH	6.0 > to < 7.8
Humus	> 1.75 to < 5.25 %
Soil moisture	> 5 to 25 Percent by weight
Soil temperature	> 0 to 50°C
Condition	Loamy/sandy/silty

Microclimate

Environmental properties	Measuring range
VIS radiation	low, medium, high
IF radiation	low, medium, high
Relative air humidity	10 to 90%
Air pressure	300 to 1100 hPa
Air temperature	-40 to +85°C
Air quality	IAQ (Indoor Air Quality Index)

Measurements after fertilisation are only permitted after the following waiting periods:

• After organic fertilization a waiting period of 8 weeks is required (special rules apply to compost, manure and pellet fertilizers, these fertilizers must be sufficiently decomposed, therefore a waiting period of more than 8 weeks is recommended)
• After the mineral fertilization a waiting period of 4 weeks is required. In addition, at least 30 mm of precipitation must have fallen during this waiting period.

1.3
Data storage and Data Preparation

– Visualization of the collected measurement data
– Interpolation of spatial concentration differences with adjustable resolution
– Impact mapping
– Creation of application maps for site-specific fertilisation
– Temporal filtering of measurement data
– Storage of raw data for an unlimited period. Data may be deleted by Customer support.

1.4
Fertilizer recommendation

– Fertilizer recommendation for different nutrients based on the German Fertilizer Ordinance – DüV (Attention, the software can only give a recommendation, a user must check the plausibility of the recommendation)
– Provision of area-specific fertilizer maps for direct application in selected fertilizer spreaders (Attention: the software can only give a recommendation, a user must check plausibility of the recommendation competently)

2. Included measurements

During the first 12 months of the contract and month, the user receives the following included measurements: 5. Measurements not used in a month can be transferred for up to 12 months subsequently expire For clarification: In each month the included measurements of this month are used first and then the oldest transferred included measurements.