TAPIO ECOSYSTEM
TERMS OF USE FOR SERVICEASSIST

GENERAL
1. The present Terms of Use for serviceAssist of HOMAG GmbH, 72296 Schopfloch ("we", "us") govern the special conditions for licensing and using the services offered by us on the tapio ecosystem (“tapio“) for our customers ("Customer(s), "You").
2. In addition to these Terms of Use, the tapio ecosystem General Terms of Use (“Platform Terms of Use“) agreed between tapio GmbH and the customer shall also apply to the use of tapio, even if this is not expressly clarified again for individual topics. In the event of contradictions between the provisions of the Platform Terms of Use and the provisions of these terms of Use, but only with respect to the use of tapio, the provisions of the Platform Terms of Use shall take precedence over these Terms of Use.

REGISTRATION

To use serviceAssist it is necessary that you are registered on tapio as an Authorized Service User. If the service refers to certain machines or systems, the service usage right only applies to such machines and systems that the customer uses for himself and his affiliated companies for handling his own internal business transactions (“Authorized machines”). The use of services for machines and systems of third parties (in particular through registration of third-party machines/systems in the admin portal) is expressly prohibited.

INFORMATION DUTIES

If you would like to use serviceAssist, tapio GmbH asks each service user to register by providing the e-mail address as well as the name and consent to the processing of personal data. The responsible customer administrator can then assign the rights to use the serviceAssist to the users. Use is only possible with the entry of the generated access data.

SCOPE OF SERVICES
1. The scope of functions of serviceAssist shall be conclusively derived from the product description available for serviceAssist in the tapio shop (https://store.tapio.one).
2. The concrete scope of use (e.g. maximum number of machines and/or users and/or tools) results from the product description. At the end of the initially agreed term, the period of use will be extended automatically by the additional term selected at the time of purchase.
3. Otherwise, the type, content, scope and limits of the right of use acquired for serviceAssist shall result from the product description.

DATA USE, DATA PROTECTION
1. The service is provided by Homag GmbH on a professionally protected cloud infrastructure, which is regularly checked and certified according to customary market standards for IT security. Data from tapio will also be collected and transmitted to us in order to provide the Service. The data are primarily your user name, contact data of the user, machine and tool data (master data, process data), which are necessary for the provision of the service. The data are used anonymously / pseudonymized for the optimization of services and for the further development of machines and processes.
2. In addition, our policy also applies to the use of data and data protection, which you can call up at https://www.homag.com/en/company/policy.
3. For the processing of data by tapio GmbH, the data protection provisions from the Platform Terms of Use and their Policy, which you can access at https://www.tapio.one/en/policy, shall apply.

FEES
1. The amount of the fees to be paid by the customer shall be determined in accordance with the fee model applicable to serviceAssist and the prices applicable at the time of the order.
2. All prices are subject to the applicable statutory sales tax.
3. Unless otherwise agreed, the remuneration owed shall be due for payment within 30 (thirty) days of invoicing.
4. The customer shall only be entitled to assert a right of retention or set-off if the rights or claims asserted by the customer are legally established or undisputed.
5. serviceAssist is sold by tapio GmbH as a commercial agent of HOMAG GmbH. HOMAG GmbH authorizes tapio GmbH to sell the app on its behalf to all customers registered on the portal.
6. Unless otherwise agreed, tapio GmbH will invoice you for the fees and collect payment thereof in its own name. The partner authorizes tapio GmbH to collect the payments.

CUSTOMER RESPONSIBILITY
1. The customer is responsible for the production and maintenance of the system requirements specified in the product descriptions as well as in the platform terms of use.
2. serviceAssist may only be used by authorized users who adhere to these Terms of Use and the Platform Terms of Use.

TERM, TERMINATION
1. Unless expressly provided otherwise in the product description, serviceAssist cannot be terminated before the end of the initially intended term. The customer has the right to cancel serviceAssist no later than 3 days before the expiration of the respective automatically extended term. Cancellation is carried out for services managed at https://my.tapio.one using the function provided there (My Account>Account>Subscriptions). To cancel service contracts, please contact your service partner and for licenses without a limited term, please contact intern-smartservices@homag.com.
2. The remaining provisions of the Platform Terms of Use, including the right to premature extraordinary termination for good cause, remain unaffected.

QUALITY AND AVAILABILITY
1. Contents and quality of serviceAssist as well as type and scope of the services to be rendered by us in connection therewith, if applicable, result conclusively from the respective product description and the present terms of use. Unless otherwise stipulated in the respective product description or these terms of use, the following shall apply:
  1. We take appropriate measures and security precautions to avoid damaging effects of our services on the customer’s user environment and to ensure adequate data security.
  2. Information on our services on websites, in applications (e.g. mobile apps), in catalogues, general product descriptions, data sheets, plans, drawings, in particular information on availability, functionality, performance data, etc. shall only be legally binding if the product-specific conditions expressly refer to these or if we have otherwise expressly confirmed them in writing.
  3. Unless otherwise expressly agreed in writing, serviceAssist does not included any customer-specific services, such as individual case specific data evaluations, which go beyond the standard functionalities of serviceAssist.
  4. We have no influence on the quality of the data collected and collected in the customer’s sphere, in particular during the operation of the machines and equipment. Before the automated evaluation of the raw data, there is no separate examination of the data formats, the content and scope as well as the quality, completeness, reliability and/or correctness of the raw data.
  5. The software and algorithms used to evaluate the raw data shall evaluate them on the basis of certain methods which may be revised at any time. The resulting data evaluations and the results displayed to the customer are largely based on the configurations of the relevant machines, systems and tools and the settings selected by the customer. The evaluation process carried out on this basis, like any scientific method, are subject to natural limitations and do not permit any final binding recommendations for action. serviceAssist is only intended as a support or aid and cannot replace an independent examination and/or a critical judgement by the customer and its authorized users as to whether and which organizational and technical measures are to be taken with regard to the use and operation of machines, plants and tools and the production processes of the customer. In particular, we do not carry out any legal checks as to whether the measures planned by the customer on the basis of our services are lawful, e.g. with regard to data protection or labour law aspects. The customer is solely responsible for the use of serviceAssist.
2. We are constantly striving to improve serviceAssist. It may be necessary to update serviceAssist with new versions from time to time. This usually takes place automatically, without the customer’s consent being obtained or the customer being made aware of this separately. The service usage rights acquired by the customer remain unaffected by this.
3. Certain availabilities and service levels only apply if they are part of the respective service description.
4. We shall not be responsible for malfunctions of the tapio platform, the Platform Terms of Use shall apply here.
5. We are not responsible for any malfunctions of serviceAssist that
  1. are attributable to causes beyond our control (e.g. natural disasters, wars, terrorist attacks, riots, industrial disputes, government measures, network or device failures, including at the customer’s location or between the customer’s location and the computer center used by tapio);
  2. arise from the use of services, hardware or software that have not been provided or expressly recognized by us, including, among other things, problems in connection with insufficient bandwidth or software or services of third parties;
  3. caused by the customer’s use of serviceAssist, after we have instructed the customer to change the use of serviceAssist and the customer has not changed the use as instructed;
  4. the unauthorized act (including erroneous input) or omission of any necessary act by the customer or its employees, agents, contractors or suppliers or by any other person who has gained access to serviceAssist or which is otherwise caused by the customer’s failure to comply with reasonable security procedures;
  5. were caused by the customer’s failure to comply with required configurations or due to a use of serviceAssist that is incompatible with serviceAssist’s features and functions (e.g. attempts to perform unsupported operations) or does not comply with our published assistance.

SUPPORT
1. In case of technical problems and questions regarding the use of serviceAssist, the hotline service is available to the customer under the contact data provided to the customer at the times specified therein.

AMENDMENTS
1. We are entitled at any time to amend these Terms of Use and the product-specific conditions ("Amendments"). This includes in particular regular technical and functional updates, to which we are, however, not obliged.
2. We shall inform the customer about essential amendments in an appropriate form and with an appropriate lead time. Material changes are in particular those which have a noticeable effect on the availability, functionality or quality of serviceAssist or the contractual relationship.
3. If the amendment means a substantial deterioration of the availability, the functional scope or the quality of serviceAssist for the customer, the customer is entitled to a special right of termination. The exercise of the special termination right must be declared in writing and must reach us within a period of 15 (fifteen) working days after receipt of the information about the change by the customer.
4. Amendments to these Terms of Use or to any product specific terms shall be effective unless we receive a written objection from the customer within 30 (thirty) days of receipt by the customer of the notice of the amendment at the contact details below. In the event of the customer’s objection, we shall have a special right of termination with respect to all contractual relationships affected by the customer’s refusal to accept the change. The customer will be informed of this consequence separately upon notification of the amendment(s).

CONFIDENTIALITY
1. Each party to the contract undertakes to keep the confidential information of the other party to the contract secret and to exercise the same care as with regard to its own trade and business secrets of similar significance, but to take at least an appropriate level of technical and organizational measures of secrecy; this includes, among other things, adequate safeguards against access by unauthorized persons or misuse activities,
2. Confidential information includes all trade and business secrets of the contracting parties as well as all embodied or oral information and data, such as technical or business data (in particular raw data and service data), evaluations based Theron, development plans, plans for product development and product design, information about hardware, databases, used or produced software, source codes and algorithms as well as documents or knowledge which the contracting parties exchange in connection with the customer’s use of tapio and which – insofar as embodied in writing or in any other form – are marked as “confidential“ or with a similar note o rare to be regarded as confidential by their nature.
3. If unauthorized access, unauthorized use, an unauthorized copy, unauthorized forwarding or other unauthorized action with regard to the confidential information of the transferring contractual partner takes place in the area of responsibility of the receiving contractual partner or becomes known to him, the receiving contractual partner shall inform the transferring contractual partner of this immediately in text form and shall immediately take all necessary measures and incur all costs to remedy the respective infringement.
4. The obligation to maintain secrecy shall not apply to confidential information which
  1. were lawfully known to the receiving contractual partner prior to their surrender without any obligation to maintain secrecy;
  2. are or become publicly accessible without the receiving contractual partner being responsible for this, provided that confidential information is not deemed to be publicly accessible simply because only parts thereof are or become publicly accessible;
  3. is lawfully communicated or provided to the receiving contractual partner by a third party without obligation to maintain secrecy, provided that the third party – to the receiving contractual partner’s knowledge – does not breach its own obligation to maintain secrecy upon surrender of the information;
  4. have been developed independently by the receiving contractual partner without recourse to confidential information or in accordance with the exceptions set out in sections 12.4.1 to 12.4.3 or 12.4.6;
  5. are to be disclosed pursuant to a binding administrative or judicial order or mandatory legal provision, provided that the other party to the contract has been informed of such disclosure in writing; or
  6. have been expressly released by the assigning contractual partner.
5. The contractor party invoking an exception must prove that the prerequisites have been met.

WARRANTY, INDEMNITY
1. We guarantee that the serviceAssist provided to the customer has the respectively agreed quality. We do not guarantee the safe, uninterrupted or error-free operation of tapio and/or serviceAssist. Unless expressly stated in the product description, we do not assume any warranty for the suitability of our functions for a specific purpose.
2. In the event of defects, we shall take the necessary measures to remedy the defect within a reasonable period of time. We shall also only be liable for such defects, which already existed at the time of the legally effective agreement of serviceAssist, if we are guilty of a fault.
3. If a third party asserts claims against the customer based on the fact that serviceAssist constitutes an infringement of copy rights or industrial property rights of the third party for which we are responsible, we shall indemnify the customer against all claims for damages and costs imposed by a court of law, provided that we were immediately notified in writing of the assertion of such a claim and that information and appropriate support are proved. In addition, it is a prerequisite that we are granted the authority to defend or settle the asserted claim.
4. Warranty and indemnity claims are excluded
  1. in the cases specified in clause 9.4, unless the customer can prove that the defect/infringement of rights would have occurred even without the circumstances specified therein;
  2. to the extent that the breach of the customer’s duty to cooperate or the omission of immediate and detailed notification of a defect in text form was (co-)cause of the damage or the defect cannot (any longer) be remedied as a result thereof; the prerequisites stated in clause 13.3 shall remain unaffected thereby.

LIABILITY
1. We shall be liable without limitation in the event of personal injury, fraudulent intent and for all damage caused intentionally or through gross negligence by our legal representatives or vicarious agents.
2. Otherwise, we shall only be liable on the merits for any breach of a material contractual obligation for which we are responsible. Essential contractual obligations are those obligations the fulfilment of which is essential for the proper use of serviceAssist and on the observance of which the customer may regularly rely. The liability for the violation of such an essential contractual obligation is limited to the total amount of the typically foreseeable damage at the time of conclusion of the contract. The upper limit of the typically foreseeable damage shall be the annual remuneration owed to serviceAssist.
3. In all other respects, liability on our part for damages caused by negligence, regardless of the legal grounds, is excluded. This shall also apply to the benefit of our legal representatives, employees, vicarious agents and subcontractors to whom a transfer of duties took place.
4. The aforementioned limitations of liability shall not apply in the event that we assume an express guarantee or in the event of liability in accordance with the product liability act.
5. Claims for damages against us as well as our legal representatives, employees, vicarious agents and subcontractors shall become statute-barred one year after they have arisen. Excluded from this are the cases mentioned in clause 14.1.

DECLARATIONS, NOTIFICATIONS
1. If the text form is provided for declarations or messages under these Terms of Use, these can be declared by e-mail or using the input fields expressly provided for this purpose.
2. If written form is exceptionally required for declarations or communications under these Terms of Use, these must be signed by an authorized representative of the declaring contracting party and sent to the other contracting party by post for fax.
3. Special notices and declarations to the customer shall be sent to the contract data provided during the customer’s tapio registration or, alternatively, to the customer’s business address, unless the customer has provided us with other contact data. Messages and declarations that affect all or several customers may also be published as customer notices on our homepage or the tapio platform.
4. Declarations to us shall be addressed to:
  
  HOMAG GmbH
  Homagstr.3-5
  72296 Schopfloch
  info@homag.com

MISCELLANEOUS
1. With the product description available at https://store.tapio.one including price information and the separately available platform terms of use, these terms of use represent the entire agreement between us and the customer to order serviceAssist.
2. The customer’s general terms and conditions of purchase or other terms and conditions do not apply.
3. These Terms of Use and their interpretation shall be governed by the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply. The exclusive place of jurisdiction for all disputes concerning rights and obligations arising from these Terms of Use, including their validity, shall be our registered office.
4. Should individual provisions of these Terms of Use be or become invalid or unenforceable in whole or in part, the validity of the remaining provisions of these Terms of Use shall not be affected thereby. The contractual partners shall immediately replace the invalid or unenforceable provision with one that comes closest to the legal and economic purpose of the invalid or unenforceable provision. Until then, such a provision shall be deemed to have been agreed. The foregoing shall apply mutatis mutandis to the closing of any loopholes in the contract.

TAPIO ECOSYSTEM TERMS OF USE FOR SERVICEASSIST

TAPIO ECOSYSTEM
TERMS OF USE FOR SERVICEASSIST