Terms of service
Agreement on the use of the
yasp.ai.compile and yasp.ai.platform Software
between
yasp.ai GmbH, Auf der Linge 37, 79112 Freiburg i. Br.
– hereinafter referred to as "yasp.ai" –
and
[insert name, address, etc. of the Customer]
– hereinafter referred to as "Customer" –
– yasp.ai and Customer individually also referred to as "Party" and collectively as "Parties" –
enter into the following "Agreement":
2. Subject Matter of the Agreement
2.1. yasp.ai provides the Customer with Software-as-a-service (hereinafter referred to as "SaaS Services") via the Internet in the field of business management software.
2.2. The subject matter of this Agreement is the:
- 2.2.1.1. the provision, for a fee and limited to the term of the Agreement, of yasp.ai's compiler and platform solution for the automated optimization of PyTorch models (AI models) for inference and training on hardware-accelerated computing systems (hereinafter referred to as the "Software") for use via the Internet, and
- 2.2.1.2. the provision of storage space on the servers of yasp.ai.
2.3. yasp.ai is permitted to involve subcontractors in the provision of storage space. The use of subcontractors does not release yasp.ai from its sole obligation to the Customer to fulfill the Agreement in full.
3. Software Provision
3.1. yasp.ai shall make the latest version of the Software available to the Customer via the Internet for the duration of this Agreement. For this purpose, yasp.ai shall set up the Software on a server that is accessible to the Customer via the Internet.
3.2. The current range of functions of the Software is specified in its current service description attached hereto as Annex 1 (hereinafter the "Service Description").
3.3. yasp.ai will immediately send the Customer access data for the agreed number of authorized users in electronic form after conclusion of the Agreement.
3.4. [yasp.ai shall send the Customer user documentation in electronic form after conclusion of the Agreement. The user documentation can also be viewed at any time during use of the Software and can be downloaded in a common format.]
3.5. yasp.ai shall remedy all Software errors without delay, subject to technical feasibility. An error shall be deemed to exist if the Software does not perform the functions specified in the Service Description or otherwise does not function properly, rendering the use of the Software impossible or restricted. With regard to the functions of the Software and the results it produces, it should be noted that the Software uses artificial intelligence (AI) and that AI, by its very nature, does not offer 100% reliability and results are not always correct (see Sections 7.1 and 9.2).
3.6. yasp.ai is continuously developing the Software and will improve it through ongoing updates and upgrades. Without being obligated to do so, yasp.ai may update or further develop the Software at any time and, in particular, adapt it due to changes in the legal situation, technical developments, or to improve IT security. yasp.ai will take the legitimate interests of the Customer into account appropriately and inform the Customer in good time about necessary updates. In the event of a significant impairment of the Customer's legitimate interests, the Customer shall be entitled to a special right of termination.
4. Rights of Use for the Software
4.1. yasp.ai grants the Customer the non-exclusive and non-transferable right to use the Software specified in this Agreement for the contractually agreed number of users during the term of the Agreement within the scope of the SaaS Services in accordance with its intended purpose.
4.2. [The Customer may only edit the Software to the extent that this is covered by the intended use of the Software according to the current Service Description.]
4.3. The Customer may only reproduce the Software to the extent that this is covered by the intended use of the Software in accordance with the current Service Description. Necessary reproduction includes loading the Software into the working memory on yasp.io, but does not include even temporary installation or storage of the Software on data carriers (such as hard disks or similar) of the hardware used by the Customer.
4.4. The Customer may only use the Software within the scope of their own business activities by their own personnel. Any further use of the Software by the Customer is not permitted.
4.5. In particular, the Customer is not entitled to make the Software available to third parties for use, either for a fee or free of charge. The Customer is therefore expressly not permitted to sublicense or sublease the Software.
5. Granting of Storage Space
5.1. yasp.ai provides the Customer with a defined amount of storage space on a server for storing their data. The Customer may store content [to the extent of [insert data volume] MB in accordance with the technical specification set out in the Service Description] on this server. If the storage space for storing the data is no longer sufficient, yasp.ai will notify the Customer accordingly. The Customer may order additional quotas subject to availability from yasp.ai.
5.2. yasp.ai shall ensure that the stored data can be accessed via the Internet.
5.3. The Customer is not entitled to transfer this storage space to a third party, either in part or in full, for a fee or free of charge.
5.4. The Customer undertakes not to store any content on the storage space or process it with the Software whose provision, publication, or use violates applicable law or agreements with third parties.
5.5. yasp.ai is obliged to take appropriate precautions against data loss and to prevent unauthorized access by third parties to the Customer's data. For this purpose, yasp.ai will perform daily backups, check the Customer's data for viruses, and install state-of-the-art firewalls.
5.6. In any case, the Customer remains the sole owner of the data and can therefore demand the release of individual or all data at any time.
5.7. Upon termination of the contractual relationship, yasp.ai shall immediately return to the Customer all data stored on the storage space allocated to them.
5.8. The data will be released at the Customer's discretion either by handing over data carriers or by sending it via a data network. The Customer is not entitled to receive the computer program suitable for using the data.
5.9. [optional: yasp.ai has neither a right of retention nor a statutory landlord's lien (Section 562 German Civil Code (BGB)) with regard to the Customer's data.]
6. Support
6.1. [The scope of support is set out in Annex 2 to this Agreement.]
6.2. yasp.ai shall respond to Customer inquiries regarding the use of the contractual Software and other SaaS Services within the business hours published on the website [insert link] [alternatively: Monday through Friday, 9:00 a.m. to 5:00 p.m.] [in accordance with the provider's support policy, as shown in Annex 2], by telephone or in writing after receiving the respective question.
7. Interruption / Impairment of Availability
7.1. Adjustments, changes, and additions to the contractual SaaS Services, as well as measures serving to identify and remedy malfunctions, will only lead to a temporary interruption or impairment of availability if this is absolutely necessary for technical reasons.
7.2. The basic functions of the SaaS Services are monitored daily. Maintenance of the SaaS Services is generally guaranteed from Monday to Friday, 9:00 a.m. to 5:00 p.m. In the event of serious errors – where the use of the SaaS Services is no longer possible or seriously restricted – maintenance will be carried out within three (3) hours of the Customer becoming aware of or being informed of the error. yasp.ai will notify the Customer of the maintenance work immediately and carry it out as quickly as possible in accordance with the technical conditions.
If the error cannot be rectified within twelve (12) hours, yasp.ai will notify the Customer by email within twenty-four (24) hours, stating the reasons and the estimated time required to rectify the error.
7.3. The availability of the agreed SaaS Services is 98.5% on an annual average, including maintenance work, but availability may not be impaired or interrupted for more than two (2) calendar days in a row. The decisive factor is the availability at the transfer point, which is the router output of the yasp.ai data center.
8. Obligations of the Customer
8.1. The Customer is aware of (i) the dependence of the Software and its results on third-party information and (ii) the potentially limited reliability of the Software's results due to the AI used (see Section 9.2). The Customer is therefore required to make their own final assessment of the content and results of the Software according to the criteria relevant to their project and will therefore not adopt the results of the Software for their business purposes without checking them.
8.2. The Customer undertakes not to store any illegal content on the storage space provided that violates laws, official requirements, or the rights of third parties.
8.3. The Customer is obliged to prevent unauthorized access by third parties to the protected areas of the Software by taking appropriate precautions. To this end, the Customer shall, where necessary, instruct its employees to comply with copyright law.
8.4. Notwithstanding yasp.ai's obligation to back up data, the Customer is responsible for entering and maintaining the data and information required to use the SaaS Services.
8.5. The Customer is obliged to check their data and information for viruses or other harmful components before entering it and to use state-of-the-art virus protection programs for this purpose.
8.6. The Customer is obliged to keep the "User ID" and password secret and not to make them accessible to third parties.
8.7. The content stored by the Customer in the storage space designated for them may be protected by copyright or other property rights. The Customer hereby grants yasp.ai the right to make the content stored on the server accessible to the Customer when they request it via the Internet and to reproduce and transmit it for this purpose, as well as to reproduce it for the purpose of processing by the Software and for data backup.
8.8. Furthermore, the Customer grants yasp.ai the irrevocable, spatially and temporally unlimited right to use the results generated with the Software, in particular the kernels created, for its own development and exploitation purposes for training the Software (AI system), for example for improving automated selection and continuously improving the Software's optimization strategies.
9. Remuneration
9.1. The Customer undertakes to pay yasp.ai the agreed monthly fee plus statutory VAT for the provision of the Software and the granting of storage space. Unless otherwise agreed, the remuneration shall be based on the yasp.ai price list valid at the time of conclusion of the Agreement.
9.2. The Customer must raise any objections to the billing of the services provided by yasp.ai in writing within a period of eight weeks after receipt of the invoice to the address indicated on the invoice. After expiry of the aforementioned period, the invoice shall be deemed to have been approved by the Customer. yasp.ai will specifically inform the Customer of the significance of their behavior when sending the invoice.
10. Liability for Defects / Liability
10.1. yasp.ai guarantees the functionality and operational readiness of the SaaS Services in accordance with the provisions of this Agreement.
10.2. However, no warranty is given regarding the accuracy of the results achieved with the Software (see the Service Description and Section 7.1). In case of uncertainty, the Software falls back on secure reference implementations, which is why formally or mathematically correct results cannot be warranted. Furthermore, not all model structures, operators, or hardware architectures are fully supported by the Software. Although the Software aims to accelerate the AI models processed by the Customer, specified minimum speedups are not guaranteed. Results depend not least on the model, the target hardware, and the runtime environment at the Customer's site. The Customer therefore assumes sole responsibility for the results created with the support of the Software, and the use thereof.
10.3. In the event that yasp.ai's services are used by unauthorized third parties using the Customer's access data, the Customer shall be liable for any fees incurred within the scope of civil liability until receipt of the Customer's order to change the access data or notification of loss or theft, provided that the Customer is at fault for the unauthorized third party's access.
10.4. yasp.ai is entitled to immediately block the storage space if there is reasonable suspicion that the stored data is illegal and/or infringes the rights of third parties. Reasonable suspicion of illegality and/or infringement of rights shall be deemed to exist in particular if courts, authorities, and/or other third parties notify yasp.ai thereof. yasp.ai shall immediately inform the Customer of the blocking and the reason for it. The blocking shall be lifted as soon as the suspicion is refuted.
10.5. Claims for damages against yasp.ai are excluded regardless of the legal basis, unless yasp.ai, its legal representatives, or vicarious agents have acted with intent or gross negligence. yasp.ai shall only be liable for slight negligence if one of the essential contractual obligations has been breached by yasp.ai, its legal representatives, executive employees, or vicarious agents. yasp.ai shall only be liable for foreseeable damages that can typically be expected to occur. Essential contractual obligations are those obligations that form the basis of the Agreement, were decisive for the conclusion of the Agreement, and on whose fulfillment the Customer can rely.
10.6. yasp.ai shall not be liable for the loss of data insofar as the damage is due to the Customer's failure to perform data backups and thereby ensure that lost data can be restored with reasonable effort.
10.7. yasp.ai shall be liable without limitation for damages caused intentionally or through negligence resulting from injury to life, limb, or health by yasp.ai, its legal representatives, or vicarious agents, as well as under the Product Liability Act.
11. Third Party Rights; Indemnification
11.1. yasp.ai warrants to the best of its knowledge that the Software does not infringe any third-party rights. yasp.ai shall indemnify the Customer against all third-party claims for infringements of property rights for which it is responsible in connection with the contractual use of the Software within the scope of Section 9.5 and shall reimburse the costs of reasonable legal action. The Customer shall immediately inform yasp.ai of any claims asserted against it by third parties due to the contractual use of the Software and shall grant it all necessary powers of attorney and authorizations to defend the claims.
11.2. The Customer warrants that the content and data stored on yasp.ai's servers, as well as its use and provision by the provider, do not violate applicable law, official orders, third-party rights, or agreements with third parties. The Customer shall indemnify yasp.ai against any claims asserted by third parties due to a violation of this clause upon first request.
12. Term and Termination
12.1. The Agreement shall enter into force upon signature by both Parties and shall have a fixed term of twelve (12) months ("Initial Term"). Upon expiry of the Initial Term or any subsequent extension period, the Agreement shall automatically renew for additional twelve (12)-month periods ("Extension Periods") unless terminated in writing by either Party with three (3) months' notice prior to the expiry of the Initial Term or any subsequent Extension Period.
12.2. Ordinary termination is excluded during the Initial Term or any Extension Period.
12.3. This shall not affect the right of either Party to terminate the Agreement without notice for good cause. yasp.ai shall be entitled to terminate the Agreement without notice in particular if the Customer fails to make due payments despite reminders and the setting of a grace period, or violates the contractual provisions governing the use of the SaaS Services. Termination without notice requires in any case that the other Party be warned in writing and requested to remedy the alleged reason for termination without notice within a reasonable period of time.
13. Data Protection
13.1. The Customer shall comply with the applicable data protection regulations when using the Software. yasp.ai is not responsible in this respect within the meaning of Art. 4 No. 7 GDPR.
13.2. If and to the extent that yasp.ai has access to the Customer's personal data in the course of providing its services, or if this cannot be ruled out, the Parties shall conclude a corresponding data processing agreement before processing begins and attach this agreement as Annex 3. In this case, yasp.ai shall process the relevant personal data solely in accordance with the provisions set out therein and in accordance with the Customer's instructions.
14. Confidentiality
14.1. For the purpose of executing this Agreement, the Parties shall grant each other access to information, documents, drawings, and other materials, in particular data, that contain confidential information and/or know-how of the Disclosing Party. "Confidential Information" within the meaning of this Agreement is all financial, technical, economic, legal, tax, and other information in any form or on any medium (including drafts, photographs, technical drawings, (product) descriptions, instructions, Software, programs, instructions, technical, scientific, and business know-how, operating procedures, methods, evaluation results, business or technical plans and offers, other data) that is made available to one Party ("Receiving Party") by the other Party ("Disclosing Party") in any form whatsoever and regardless of its quality as a trade secret within the meaning of Section 2 No. 1 of the German Trade Secrets Protection Act (GeschGehG).
14.2. Confidential information does not include information that:
- 14.2.1. was already lawfully in the possession of the Receiving Party without any obligation of confidentiality before receiving it from the Disclosing Party;
- 14.2.2. was already publicly available at the time it came to the knowledge of the Receiving Party or became publicly available thereafter through no fault of the Receiving Party;
- 14.2.3. was disclosed by the Disclosing Party to third parties without imposing a confidentiality obligation on the third party;
- 14.2.4. was obtained by the Receiving Party from a third party prior to or after the conclusion of this Agreement, without breach of this Agreement, provided that the third party lawfully came into possession of the information;
- 14.2.5. has been independently developed by the Receiving Party without reference to or reliance on the Confidential Information of the Disclosing Party; or
- 14.2.6. is disclosed by the Receiving Party with the prior written consent of the Disclosing Party.
Otherwise, § 5 GeschGehG remains unaffected by this Agreement.
14.3. The Customer warrants that it is entitled to disclose the information brought to its attention in the course of the performance of the Agreement to yasp.ai without violating any contractual or other confidentiality or rights agreements.
14.4. The Parties undertake to treat the Confidential Information of the other Party as strictly confidential and not to make it accessible to third parties, pass it on, or allow third parties to gain knowledge of it for any purpose whatsoever, unless the Disclosing Party has given its prior written consent. "Third parties" are all persons and companies that are not Parties to this Agreement, with the exception of subcontractors employed by yasp.ai and necessary for the performance of the Agreement.
14.5. Furthermore, the Parties undertake to make the Confidential Information available within their companies only to those of their executive board members, employees, and, if applicable, consultants who absolutely need this Confidential Information (need-to-know principle) and who are bound to secrecy in accordance with this Agreement. In addition, the Receiving Party shall ensure that only secure information transmission and communication channels are used when passing on Confidential Information.
14.6. The Confidential Information may only be used by the Receiving Party for the intended contractual purpose and under no circumstances for its own or other commercial purposes. In cases of doubt, the Parties are obliged to request the other Party's written consent before disclosing the information.
14.7. The Parties are only permitted to make notes, store data on data carriers, or make other recordings and copies to the extent that this is necessary and useful for carrying out the activities required to fulfill the purpose of the Agreement.
14.8. Physical information material and all records of Confidential Information must be protected from unauthorized access by secure storage, including appropriate and up-to-date electronic security measures. The Receiving Party shall exercise at least the same care as it does to protect its own confidential information, but no less than the due care of a prudent businessman.
14.9. The Parties shall oblige all employees who will have access to the information and documents to comply with the above provisions and to maintain confidentiality in accordance with the GDPR.
14.10. The Receiving Party shall be entitled to disclose the Confidential Information if and to the extent required by order or directive of a competent court, authority, or mandatory legal provision. To the extent permissible and possible, the Receiving Party shall notify the Disclosing Party in advance and shall make reasonable efforts to limit the disclosure.
14.11. If Confidential Information of one Party becomes known to third parties, or if there is reasonable suspicion that this is the case, the other Party shall immediately inform the other Party thereof and of the measures taken.
14.12. The Receiving Party is prohibited from obtaining Confidential Information by means of reverse engineering. "Reverse engineering" includes all actions, including observation, testing, examination, and disassembly, with the aim of obtaining Confidential Information. This prohibition ends as soon as the product in question has been made publicly available.
14.13. The Parties shall immediately return all Confidential Information made available to them, insofar as it is embodied in physical form, upon request and upon termination of the contractual relationship, or, if this is not possible, destroy it and delete it from their electronic and other storage systems and provide verifiable proof of this without delay. However, the Receiving Party is entitled to retain a copy in order to comply with the obligations of this Agreement.
14.14. All rights to the Confidential Information shall remain with the Disclosing Party, unless otherwise agreed. Neither this Agreement nor the provision of Confidential Information shall be construed as a grant or transfer of any rights by way of license or otherwise, except for the use of the Confidential Information as provided for in this Agreement.
14.15. This confidentiality obligation shall remain in effect for a period of two (2) years after the termination of the Agreement.
14.16. Any right of retention (for whatever legal reason) to the Confidential Information is excluded.
14.17. The statutory confidentiality obligations, in particular § 23 GeschGehG, remain unaffected.
14.18. [optional: Neither Party may hire employees of the other Party during the term of this Agreement or in the following twenty-four (24) months, or employ them in any other way, unless the other Party agrees to this in writing. The provisions of this Section also apply to affiliated companies of the Parties.]
14.19. yasp.ai is entitled to name the Customer as a reference in marketing materials, on its website, and in other marketing measures.
15. Applicable Law, Place of Jurisdiction
15.1. This Agreement is governed by German law, excluding the UN Convention on Contracts for the International Sale of Goods.
15.2. The exclusive place of jurisdiction for disputes arising from this Agreement is Freiburg, Germany.
16. Miscellaneous
16.1. No verbal side agreements have been made. Amendments, supplements, and additions to this Agreement are only valid if they are agreed in writing between the Parties.
16.2. Should individual provisions of this Agreement be or become invalid and/or contradict statutory provisions, this shall not affect the validity of the remaining provisions of this Agreement. In place of the invalid or unenforceable provision, a provision shall be deemed to have been agreed which, to the extent legally permissible, comes closest in economic terms to the original meaning and purpose. This severability clause supersedes Section 139 BGB in its entirety.
16.3. Annexes referred to in this Agreement are an integral part of the Agreement.
Annexes:
Annex 1: Service Description
Annex 3: Data Processing Agreement
