Rhesis AI — SaaS Terms and Conditions

These SaaS Terms and Conditions (hereinafter referred to as "SaaS Terms") shall apply to any contract between Rhesis AI GmbH, August-Bebel-Str. 89, 14482 Potsdam, Germany (hereinafter referred to as "Rhesis AI") and the customer (hereinafter referred to as the "Customer") for the Customer's use of any Software-as-a-Service solution provided by Rhesis AI. Rhesis AI and the Customer are hereinafter also referred to individually as "Party" and jointly as "Parties".

Subject Matter
1. These SaaS Terms govern the provision and use of the Rhesis AI's SaaS solution by the Customer. Details of the SaaS solution to be provided by Rhesis AI for the Customer's use via the internet (hereinafter the "SaaS Solution"), are laid out in the service description referenced in contract between Rhesis AI and the Customer that incorporates these SaaS Terms (hereinafter the "SaaS Contract"). Unless otherwise agreed by the Parties in the SaaS Contract, the fees specified by Rhesis AI on its website apply for the relevant SaaS Solution.
2. The Customer represents and warrants that it is acting in a business capacity (Unternehmer) within the meaning of § 14 of the German Civil Code (BGB). The use of the SaaS Solution by consumers (Verbraucher) is not permitted.
3. The terms of the SaaS Contract shall also apply to any changes Rhesis AI may make to the SaaS Solution during the term of the SaaS Contract, e.g. through patches, updates, or upgrades.
4. Deliverables and services not expressly agreed upon are not part of the subject matter of the SaaS Contract. In particular, Rhesis AI shall not be obliged to deliver software object code for installation and use at the Customer's premises, or to provide the Customer with any software source code.
5. The Customer's terms and conditions shall not apply, except to the extent Rhesis AI has expressly agreed to the Customer's terms and conditions in writing.
Access to the SaaS Solution, Access Credentials
1. Rhesis AI will operate the SaaS Solution on servers set up for this purpose, and make available the SaaS Solution in accordance with the agreed availability (Section 4) for access and use by the Customer over the internet.
2. Rhesis AI shall provide the Customer with access to the SaaS Solution by either providing the Customer with username and password and/or other means of authentication (together the "Access Credentials"), or by enabling the Customer to set up the Access Credentials itself. The Customer can take access to the SaaS Solution by using a web browser supported by the SaaS Solution.
3. The Customer shall ensure that only authorized users designated by the Customer (each a "User") have access to the SaaS Solution. The Customer shall appropriately protect Access Credentials against unauthorized access or use. Any use of Access Credentials or the SaaS Solution, including any use in violation of the SaaS Contract and other unauthorized use, is deemed, in relation to Rhesis AI, as usage on behalf of the Customer, unless the Customer is not responsible (kein Vertretenmüssen) for the unauthorized use.
Scope and Quality of the SaaS Solution
1. The SaaS Solution provides the features described in the applicable service description referenced in the SaaS Contract. Unless otherwise agreed, the SaaS Solution's user interface and the user documentation is available in English language.
2. The Customer is aware and agrees that
  1. the Customer requires a sufficiently dimensioned internet connection to properly use the SaaS Solution;
  2. Rhesis AI does not verify whether information entered into the SaaS Solution by or for the Customer are complete or accurate;
  3. Rhesis AI may, but is not required to, monitor the scope of use of the SaaS Solution by the Customer, in particular to ensure the Customer's compliance with any usage restrictions agreed upon;
  4. The SaaS Solution can support the Customer in generating test cases; however, the selection, deployment, and use of test cases as well as any testing of systems and its effects remain solely and entirely the responsibility of the Customer; and
  5. Rhesis AI assumes no responsibility or liability for any test cases deployed by the Customer, for the testing of systems by the Customer, or for any impact such testing may have on the respective systems.
3. Rhesis AI may update and make other reasonable changes to the SaaS Solution during the term of the SaaS Contract without an explicit additional consent of the Customer being required, in particular to align with legal changes, technical developments (e.g. new versions of web browsers or operating systems), and to improve IT security of the SaaS Solution. In doing so, Rhesis AI will appropriately take into account the legitimate interests of the Customer.
Availability of the SaaS Solution
1. If the minimum technical requirements communicated by Rhesis AI are met by the Customer, Rhesis AI warrants a minimum average annual availability of the SaaS Solution of 97.5%.
2. The SaaS Solution is deemed unavailable if essential functions of the SaaS Solution cannot be accessed at all. The relevant measuring point shall be the internet node situated within the data center from which the SaaS Solution is made available.
3. Outages and interruptions due to (i) planned maintenance work; (ii) emergency maintenance measures; or (iii) circumstances outside Rhesis AI's direct control, such as cases of force majeure or external attacks on the SaaS Solution or the underlying infrastructure, shall not be taken into account when calculating the SaaS Solution's non-availability.
4. Rhesis AI will make reasonable efforts to keep downtimes of the SaaS Solution due to maintenance as short as possible.
Use of the SaaS Solution
1. During the term of the SaaS Contract and subject to the Customer's payment of any due fees, the Customer is permitted to access the SaaS Solution via the internet using the Access Credentials, and to use the functionalities of the SaaS Solution in accordance with the terms of the SaaS Contract for its internal business purposes only. The scope of the permitted use is subject to the limitations agreed in the SaaS Contract (e.g. limited creation of test cases, limited execution of tests, limited users).
2. The Customer shall not be permitted to use or have the SaaS Solution used beyond the scope of use expressly permitted. The Customer shall particularly not be permitted to reproduce, sell, rent, lend or otherwise transfer the SaaS Solution or (parts of) the underlying software. The Customer shall not be permitted to make the SaaS Solution available to third parties, except to its Users. Mandatory statutory rights the Customer may have remains unaffected.
3. The Customer shall promptly notify Rhesis AI if the Customer becomes aware of any violation of Section 5 in writing.
Customer's Cooperation Duties and Responsibilities
1. The Customer shall promptly provide Rhesis AI with any information from within the Customer's sphere that is reasonable requested by Rhesis AI for the implementation of the SaaS Contract.
2. The Customer shall only use the SaaS Solution within the contractually permitted scope and must ensure compliance with any statutory and regulatory requirements applicable to the Customer's use of the SaaS Solution. In case the Parties have agreed additional usage restrictions for the use of the SaaS Solution (e.g. a maximum number of Users), the Customer shall take appropriate measures to ensure compliance with these usage restrictions.
3. The Customer must not deploy test cases generated with the support of the SaaS Solution on systems not owned by the Customer or for which the Customer has not obtained the explicit prior written authorization of the owner or operator.
4. The Customer shall adequately test the SaaS Solution for usability and suitability for the Customer and the Customer's purposes prior to their operational use, and shall commence such operational use only if the test results are positive. The foregoing shall not affect the Customer's statutory and contractual obligations to inspect and give notice of defects (Rügeobliegenheiten).
5. The Customer shall instruct each User to treat Access Credentials confidentially, and to comply with the permitted use and use restrictions agreed upon in the SaaS Contract. The Customer shall adequately monitor compliance of its Users.
6. The Customer is solely responsible for the functionality and adequate dimensioning of its internet connection for accessing and using the SaaS Solution.
7. If the Customer suspects or becomes aware of (i) an unauthorized use of the SaaS Solution; (ii) misuse, loss or theft of Access Credentials; or (iii) other circumstances or incidents compromising the security of the SaaS Solution, the Customer shall promptly notify Rhesis AI at least in text form.
8. In the event of any malfunction, functional failure, or impairment of the SaaS Solution, the Customer shall promptly inform Rhesis AI as precisely as possible. If the Customer fails to make such a notification, § 536c of the German Civil Code (BGB) shall apply. If remote access to the Customer's account is necessary for rectifying the issue, the Customer will facilitate such access.
9. The Customer shall provide all cooperation duties and services at its own expense, in a timely manner, and in a professionally proper manner.
Customer Content
1. The Customer shall bear exclusive responsibility for the completeness, accuracy, and legality of the information entered, uploaded, or otherwise stored by or on behalf of Customer while using the SaaS Solution (collectively "Customer Content").
2. By entering, uploading, or otherwise providing Customer Content, the Customer grants Rhesis AI a non-exclusive, irrevocable, worldwide right to use the Customer Content for the purpose of fulfilling the SaaS Contract. This includes the rights to reproduce, process, and display the Customer Content as part of the SaaS Solution, until the SaaS Contract has been fully executed. Rhesis AI may exercise this right through third parties on its behalf, such as hosting service providers. The Customer assures that it possesses all necessary rights to the Customer Content, including image, trademark, and copyright rights, and that the Customer has validly obtained all necessary consents and approvals, especially for the processing of personal data.
3. The Customer shall ensure and warrant that:
  1. neither the Customer Content itself nor its input, storage, retrieval, or processing infringes upon the rights of third parties (including copyrights, personal rights, and industrial property rights) or violates applicable law;
  2. the Customer Content is neither wholly nor partially glorifying violence, shocking, discriminatory, inciting hatred, inhuman, racist, extremist, sexist, or otherwise immoral, criminal, abusive, threatening, defamatory, or offensive, nor does it incite criminal, immoral, or endangering acts;
  3. the Customer has validly obtained and maintains all consents and approvals of third parties required for the input, storage, and processing of the Customer Content, including consents required under data protection law; and
  4. the Customer Content does not contain or spread malicious software code.
4. The Customer must properly and regularly backup the Customer Data. Rhesis AI shall not be obliged to backup any Customer Data, unless expressly agreed otherwise by the Parties.
Fees and Payment Terms
1. The Customer shall be obligated to pay the fees agreed upon in the SaaS Contract. All prices and price agreements are subject to the applicable statutory value-added tax at the time the relevant service is provided.
2. Unless expressly agreed otherwise, the claim to payment of the agreed fees shall become due in advance for each term.
3. Payments are due on the day of invoicing (invoice date) and is payable within thirty (30) days of the invoice date.
4. During an agreed Free Trial Phase, Section 14 applies.
Warranty in case of Defects
1. Rhesis AI warrants that the SaaS Solution meets the agreed-upon quality and that the contractual use of the SaaS Solution by the Customer does not infringe upon any rights of third parties.
2. Any material defects (Sachmängel) of the SaaS Solution shall be remedied by Rhesis AI within a reasonable period of time.
3. In the event of defects of title (Rechtsmängel), Rhesis AI shall provide the Customer with a contractual scope of use (vertragsgemäße Benutzungsmöglichkeit) of the SaaS Solution or eliminate the defect of title by adjusting the SaaS Solution accordingly. Rhesis AI will appropriately take into account the legitimate interests of the customer in this process.
4. If the Customer asserts a defect even though there is actually no defect, the Customer shall reimburse Rhesis AI for any expenses and costs incurred as a result, unless it was not recognizable to the Customer with the care customary in the industry that there was no defect.
5. In all other respects, §§ 535 et seq. of the German Civil Code (BGB) shall apply with the proviso that the strict liability for defects existing at the time of conclusion of the contract pursuant to § 536a para. 1, 1st alternative of the German Civil Code (BGB) shall be excluded.
IPR Infringement
1. If a third party asserts claims against the Customer based on an infringement of intellectual property rights in connection with the SaaS Solution, the Customer shall notify Rhesis AI without undue delay and in text form.
2. Rhesis AI shall reasonably assist the Customer in defending against such claims by providing available relevant information concerning the SaaS Solution.
3. The statutory provisions and contractual obligations of Rhesis AI regarding material defects and defects of title, including those under Section 9, shall remain unaffected.
Liability
1. Rhesis AI shall be liable without limitation in cases of intent, gross negligence, and culpable injury to life, limb, or health.
2. In the event of slight negligence, Rhesis AI shall only be liable in the event of a breach of essential contractual obligations, i.e. obligations the fulfillment of which is a prerequisite for the proper execution of the contract or the breach of which jeopardizes the achievement of the purpose of the contract and on the fulfillment of which the Customer may regularly rely (Kardinalpflichten). In these cases, Rhesis AI's liability is limited to damages that are foreseeable at the time of the conclusion of the contract and are typical for the contract. The unlimited liability according to Section 11.1 remains unaffected.
3. Beyond Section 11.1 and Section 11.2 Rhesis AI shall not be liable for slight negligence.
4. The above limitations of liability shall not apply to liability under the Product Liability Act, and within the scope of guarantees by Rhesis AI assumed in writing.
5. Section 11 shall also apply in favor of the Rhesis AI's employees, representatives, and vicarious agents.
Term and Termination
1. Unless otherwise agreed in the SaaS Contract, the SaaS Contract is concluded for an indefinite period.
2. In case of a monthly subscription, either Party may terminate the SaaS Contract without cause (ordentliche Kündigung) with a notice period of seven (7) days giving effect to the termination by the end of the contract month. In case of a yearly subscription, either Party may terminate the SaaS Contract without cause (ordentliche Kündigung) with a notice period of thirty (30) days giving effect to the termination at the end of the contract year. If a minimum term is agreed upon between the Parties, termination without cause is possible by giving effect to the termination at the end of this minimum term at the earliest.
3. The Parties' right to termination for good cause remains unaffected. A good cause shall particularly be deemed to exist if
  1. the other Party repeatedly violates material contractual obligations under the SaaS Contract after written notice and reasonable cure period;
  2. the other Party commits a tortious act in connection with the SaaS Contract; or
  3. the other Party ceases business operations in whole or in part, and continued operation is not secured by a direct legal successor.
4. Any termination must be at least in text form to be effective. The Customer may also declare termination by using the functionality to terminate the SaaS Contract provided in SaaS Solution.
5. Upon termination of the SaaS Contract, for whatever reason, the Customer's contractual rights to use the SaaS Solution shall end.
Restrictions, Suspension and Deletion
1. If Rhesis AI has reasonable grounds to suspect that the Customer's Access Credentials are being misused or used in violation of the SaaS Contract, Rhesis AI is entitled to block and replace the Access Credentials.
2. Rhesis AI also is entitled to temporarily suspend the Customer's access to the SaaS Solution if (i) the Customer is in default of a significant portion of the agreed-upon fees or (ii) the Customer's systems deviate from normal operational behavior, thereby compromising the security, integrity, or availability of the SaaS Solution.
3. If Rhesis AI, based on actual indications, has reason to believe that the Customer has entered or processed Customer Content in violation of the SaaS Contract, particularly contrary to Section 7.3, Rhesis AI may inform the Customer and provide the Customer an opportunity to either (i) remove the relevant Customer Content, or (ii) demonstrate that the input and processing are in accordance with the SaaS Contract. If the Customer fails to fulfill either of these options within a reasonable period, Rhesis AI may remove or block the Customer Content concerned.
4. Rhesis AI shall appropriately consider the legitimate interests of the Customer in making the aforementioned decisions and implementing the aforementioned measures.
5. This Section 13 shall not affect any other of Rhesis AI's claims and rights, such as retention and termination rights.
Free Trial Phase
1. If the Parties have agreed on a free trial phase for the SaaS Solution ("Free Trial Phase"), the provisions of this Section 14 shall take precedence over any other provisions of the SaaS Terms during the Free Trial Phase.
2. During the Free Trial Phase, Rhesis AI will provide the SaaS Solution free of charge. The Customer is aware and agrees that during the Free Trial Phase, the SaaS Solution may not be available, may be available only in a limited manner, may be available with significant interruptions and/or may be defective.
3. Rhesis AI does not promise a specific availability of the SaaS Solution during the Free Trial Phase. Section 4 shall not apply during the Free Trial Phase.
4. During the Free Trial Phase, Rhesis AI is liable as set out in the provisions of the law governing loan agreements (§§ 598 et seq. of the German Civil Code (BGB)). Section 9 and 11 do not apply beyond this.
5. The Free Trial Phase shall end automatically upon expiry of its agreed duration. Unless otherwise agreed by the parties and subject to termination of the SaaS Contract pursuant to Section 14.6, the SaaS Contract shall remain unaffected thereby. In particular, the Customer shall be obligated to pay the agreed fees for the SaaS Solution from this point in time.
6. During the Free Trial Phase, either party may terminate the SaaS Contract at any time without prior notice.
Confidentiality
1. The Parties shall treat as confidential all Confidential Information disclosed or otherwise becomes known to them in connection with the SaaS Contract, and shall not use or disclose such information except as necessary for the performance of this Agreement. "Confidential Information" of a Party means information relating to competitively relevant know-how, information marked as confidential or otherwise identifiable as confidential on the basis of an objective recipient horizon, as well as trade secrets of a Party.
2. Either Party will
  1. treat the other Party's Confidential Information as confidential and use it only for the performance of the SaaS Contract;
  2. not disclose or make accessible the other Party's Confidential Information to their employees or third parties, except to the extent absolutely necessary for the performance of the Customer Agreement (need-to-know) and only if such employees or third parties have been obliged to maintain confidentiality; and
  3. protect the other Party's Confidential Information against access by unauthorized persons through appropriate and suitable measures (e.g., access control, encryption).
3. Section 15.2 shall not apply to Confidential Information, which
  1. a Party has lawfully received or receives from a third party, without breaching a confidentiality obligation;
  2. was already generally known at the time of the conclusion of the SaaS Contract or subsequently become generally known without any breach of the obligations contained in the SaaS Contract;
  3. already existed with a Party prior the establishment of the business relationship and is not subject to a confidentiality obligation; or
  4. is developed independently by a Party.
4. Furthermore, the Parties may disclose Confidential Information to the extent required by law or by governmental authorities. In such case, the Party concerned shall promptly inform the other Party in writing of the scope and basis of the disclosure.
5. The confidentiality obligations remain in effect for a period of three (3) years after the end of the SaaS Contract.
Marketing and Reference
1. Rhesis AI may publish and otherwise use the Customer's name and logo in press releases and other marketing materials as well as for advertising purposes on social media platforms and elsewhere on the internet, also as a reference customer and in connection with Rhesis AI's products and services. Rhesis AI shall, to the extent possible, take into account design specifications provided by the Customer for this purpose.
2. The Customer may revoke the permission pursuant to Section 16.1 by notifying Rhesis AI in writing. Upon receipt of such revocation, Rhesis AI's authorization pursuant to Section 16.1 shall cease with effect for the future. In particular, Rhesis AI shall not be obliged to destroy any marketing materials or communications already printed or produced prior to receipt of the revocation, or to remove or recall any published marketing materials or communications.
Data Protection
The data processing agreement available on Rhesis AI's website shall be an integral part of the SaaS Contract.
Governing Law, Place of Jurisdiction
1. The SaaS Contract shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
2. The exclusive place of jurisdiction for all disputes arising from or in connection with the SaaS Contract shall be Potsdam, Germany.
Miscellaneous
1. Rhesis AI may engage subcontractors as vicarious agents (Erfüllungsgehilfen). Rhesis AI shall be liable for actions and omissions of vicarious agents as if they were Rhesis AI's own actions or omissions.
2. The Parties may only assign rights or obligations arising under the SaaS Contract with the consent of the respective other Party. § 354a of the German Commercial Code (HGB) remains unaffected.
3. The Customer may only set off against Rhesis AI claims arising from the SaaS Contract which are undisputed or have been finally legally established by a court of law and may only exercise a right of retention on the basis of such claims.
4. Should individual provisions of the SaaS Contract be or become invalid, this shall not affect the validity of the remainder of the SaaS Contract. The invalid provision shall be replaced by the statutory provisions.
5. The SaaS Contract conclusively and exclusively governs the relationship between the Parties in connection with the use of the SaaS Solution. The Parties have not concluded any oral side agreements. Amendments, supplements and additions to the SaaS Contract shall only be valid if agreed between the Parties in writing. This shall also apply to amending this written form clause itself. Unless expressly otherwise agreed, Text form is sufficient to fulfill any written from requirement.

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