This version of the ToS is a translation of the original German version of the ToS. Only the German version shall be decisive for the legal effects between the Parties. The same applies to all Annexes to these ToS in any other language than German. The German version of the ToS is available here.
Effective Date: August 1st, 2024
1.1 These Terms of Service ("ToS") apply to all contractual relationships between Omnifact GmbH, Hansaallee 154, 60320 Frankfurt, Germany ("Omnifact") and the contractual partner ("Customer"). The current version of the Terms of Service, which are available on Omnifact's homepage at the time the contract is concluded, shall apply.
1.2 All services and offers from Omnifact are provided exclusively on the basis of these ToS. The ToS are an integral part of all contracts between the customer and Omnifact. They also apply to all future services and offers, even if they are not separately agreed again or not expressly referred to.
1.3 All services and offers of Omnifact as well as these ToS are directed exclusively at entrepreneurs within the meaning of § 14 BGB (German Civil Code), legal entities under public law and special funds under public law.
1.4 Conflicting or deviating ToS or other conditions of the customer will only become part of the contract if Omnifact and the customer (together the "parties") expressly agree to this, even if Omnifact performs services without reservation in the knowledge of the ToS or other conditions of the customer.
2.1 All offers from Omnifact are subject to change.
2.2 The contract between Omnifact and the customer is concluded by the acceptance of the offer. Acceptance can also be made by e-mail or via the conclusion form on the website.
2.3 For the conclusion of the contract, it is imperative that the Omnifact Data Processing Agreement (DPA) is accepted by the customer and that this is effectively agreed between the parties. This is also possible by e-mail or via the conclusion form on the website.
3.1 The subject matter of this Agreement is the provision of the Omnifact software ("Software") designated in the respective order confirmation by Omnifact to the customer in the form of the user software, made available to the customer for use via a remote data connection as a Software-as-a-Service service ("SaaS"), as well as the provision of storage space for the data generated and/or contributed by the customer through the use of the Software (the "Data Sets") and the granting of rights of use to the Software.
3.2 Omnifact guarantees the functionality and availability of the software for the duration of the contractual relationship and will maintain it in a condition suitable for contractual use. This warranty expressly does not apply to the availability of third-party AI systems to which the software has access.
3.3 The source code of the software is generally not part of the subject matter of the contract and can only become part of the subject matter of the contract if this is expressly agreed between the contracting parties.
3.4 For the quality of the software, the service description delivered by Omnifact is definitive. Omnifact is not obligated to provide software with qualities deviating from this description. In particular, the customer cannot derive such an obligation from representations of the software in public statements or in the advertising of Omnifact, or of its employees or sales partners, unless Omnifact has expressly confirmed the quality deviating from the service description in writing.
3.5 Omnifact may, without being obliged to do so, 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. Omnifact 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 legitimate interests of the customer, the customer is entitled to a special right of termination.
3.6 Software and hardware installations, instruction and training are only part of Omnifact's service obligations on the basis of a separate agreement between Omnifact and the customer and are generally subject to remuneration.
4.1 Omnifact offers customers the opportunity to create a user account on its website (https://omnifact.ai/).
4.2 With this account, the customer can use a free trial version of the software ("trial version") with limited features. The functional scope of the respective license options can be found on this page: https://omnifact.ai/pricing
4.3 The customer has the option of purchasing a license and upgrading his account to the full version of the software by contacting the sales department at (sales@omnifact.ai) or making a change to the planned plan in the team administration.
4.4 Registration is only permitted for legal entities and may only be carried out by a natural person, who must be named and who is authorized to legally represent the customer in relation to the conclusion of the contract.
4.5 The customer is obliged to provide truthful information during registration and to adequately protect the access data to his account from unauthorized access by third parties.
4.6 Creating multiple accounts for the same company is not permitted.
4.7 Omnifact does not assume any maintenance and/or support obligations for the trial version.
4.8 Omnifact makes no assurances that the test version is free of defects and gives no corresponding guarantees.
4.9 The customer uses the test version free of charge. The warranty is therefore only limited to fraudulently concealed material defects and defects of title (see § 600 BGB). Otherwise, the customer's warranty rights are excluded.
4.10 The customer is not authorized to rectify any defects in the test version himself or have them rectified by third parties.
5.1 The customer is responsible for all use of the software with his account.
5.2 The use of the software for illegal or unlawful purposes is prohibited.
5.3 The customer is prohibited from using the software to generate pornographic, violent, discriminatory, sexist or racist content.
5.4 The customer is responsible for all data uploaded by him. Omnifact does not check the completeness, plausibility or content of the data uploaded via the account.
5.5 Omnifact is entitled to temporarily suspend access to the software or the account, in whole or in part, or to terminate the contract if the customer violates his obligations under the contract, including these ToS, in particular these rules of use.
6.1 The Customer is aware that the Software uses AI systems from third-party providers (e.g. Mistral AI, OpenAI, Microsoft, Anthropic, or Google; hereinafter collectively referred to as "LLM Providers"). The parties are users of such AI systems.
6.2 The customer acknowledges that any evaluations of the software, which relies on LLM providers for this purpose, are merely assumptions made on the basis of probabilities and whose quality depends in particular on the quality of the data records input by the customer. The contractual services therefore explicitly do not include the accuracy of the software's evaluations.
6.3 Omnifact will work within the framework of the agreements with the LLM providers to ensure that the AI systems are operated on servers within the European Economic Area. If necessary, technical reasons of the LLM providers may require that server locations in the USA or other countries outside the European Economic Area must be used. The customer agrees that its data and other information generated when using the software may be transmitted to the LLM providers and processed by them.
6.4 The customer has the option of approving and activating individual LLM providers for the managed organization. In consultation with our support team, self-hosted LLMs can also be integrated into Omnifact.
7.1 The customer acknowledges that 100% availability of the software is not technically feasible. However, Omnifact endeavors to keep the software available as constantly as possible. In particular, maintenance, security or capacity issues, as well as events that are beyond the control of Omnifact (such as disruptions of public communication networks, disruptions at third-party providers, power outages, etc.), can lead to shortterm disruptions or temporary suspension of the software.
7.2 Omnifact reserves the right to restrict access to the Software in whole or in part, temporarily or permanently, due to maintenance work, capacity issues and other events beyond its control.
7.3 Omnifact guarantees an availability of its services of 99.5% on an annual average. This Service Level Agreement (SLA) refers to the pure network availability of our platform, excluding planned maintenance work and events beyond our control (force majeure, acts of third parties, etc.).
8.1 Omnifact offers support via e-mail (support@omnifact.ai). E-mails are processed from Monday to Friday (usually from 9:00 a.m. to 5:00 p.m. - service hours) and answered within one working day during this period.
8.2 Omnifact accepts customer support messages ("tickets") as e-mail requests at any time. Tickets are processed during service hours.
8.3 Support services for error correction are available during support hours. Errors will be addressed as follows:
9.1 The customer is obliged to fulfill the necessary and reasonable cooperation obligations for the provision of the services to be provided by Omnifact at his own expense. Specific obligations to cooperate are to be agreed separately.
9.2 The customer is obliged to,
10.1 The customer is obliged to pay Omnifact the remuneration agreed in the order.
10.2 The remuneration for the use of the software is to be paid in accordance with the cycles confirmed with the offer. It shall be invoiced for the first time upon conclusion of the contract and subsequently at the beginning of the respective contract month (in the case of monthly invoicing) or contract year (in the case of annual invoicing). Commissioning of the software requires payment of the first invoice. If the number of users increases, the fee shall increase accordingly. In the event of a change during the year, the additional services will be invoiced separately on a monthly basis until the next annual invoice is issued.
10.3 The payment period for the remuneration is 14 days from receipt of the invoice in each case. If the customer does not pay on time, he shall be in default after expiry of the aforementioned period without further notice. If an amount due is not paid within the payment period, statutory default interest shall be payable on the outstanding invoice amount.
10.4 The agreed remuneration can be appropriately adjusted annually by Omnifact at its reasonable discretion (§ 315 BGB). An adjustment can be made at the earliest after a contract term of 12 months, and then annually. Omnifact will inform the customer of the adjustment at least three months in advance. The following circumstances in particular must be taken into account for an adjustment:
10.5 Services that are not listed in this offer will be invoiced additionally. The remuneration is to be agreed between the parties. Omnifact is not obliged to provide additional services as long as the customer has not agreed to bear the additional costs.
10.6 All prices are subject to the applicable statutory value added tax.
11.1 The customer receives a simple, non-sublicensable and non-assignable right to use the latest version of the software for the contractually agreed number of users in accordance with the contractual provisions for the duration of the contract.
11.2 The customer may only use the software within the scope of his own business activities by his own personnel. Any further use of the software by the customer is not permitted.
11.3 The software is not physically transferred to the customer.
11.4 Any open source software used by Omnifact is protected by copyright and is subject to its own license conditions, the content of which takes precedence over these ToS. If the software contains components of open source software, these and their respective license conditions are listed in a separate attachment.
11.5 Unless otherwise expressly stipulated in the Open Source License Terms, Omnifact does not charge a license fee for the provision of rights of use to Open Source Software. The remuneration agreed between the contracting parties therefore does not extend to the open source software.
11.6 Notwithstanding the provisions on confidentiality in Section 15 of these ToS, Omnifact is prohibited from transferring the data records to third parties or disclosing them to third parties. At the time of the conclusion of the contract, the parties assume that the data records are not subject to copyright protection. Should copyright protection rights nevertheless exist on the data records or arise in the future, the provisions of this section 10 shall apply accordingly.
12.1 In the event that a third party claims against Omnifact the infringement of its rights due to the customer's behavior in connection with the use of the services, e.g. due to the improper use of the software by the customer, the customer will indemnify Omnifact from all related claims of the third party on first demand and compensate Omnifact for any damage incurred by Omnifact due to the right of the third party, including any court and legal fees incurred for the legal defense. This does not apply if the customer proves that he is not responsible for the infringement.
12.2 In the event of an infringement of industrial property rights and/or copyrights of third parties by Omnifact, Omnifact will, at its own discretion and at its own expense, provide the customer with the necessary right to use the service or design the service free of infringement. If this is not possible under economically reasonable conditions, Omnifact will take back the service with reimbursement of the remuneration paid by the customer less an appropriate usage fee. In addition, Omnifact will indemnify the customer in this case from all legally imposed legal fees and court costs and legally established claims for damages due to the infringement of third-party property rights, unless Omnifact proves that it is not responsible for the infringement.
13.1 Omnifact is liable without limitation in the event of intent or gross negligence, for culpable injury to life, limb or health and in accordance with the provisions of the Product Liability Act and to the extent of a guarantee assumed by Omnifact.
13.2 In the event of a slightly negligent breach of an obligation, the fulfillment of which makes the proper execution of the contract possible in the first place and on the observance of which the customer may regularly rely (essential contractual obligation), Omnifact's liability is limited to the foreseeable and typical damages for the type of transaction in question, with the exception of the cases mentioned in section 13.1.
13.3 There is no further liability on the part of Omnifact. In particular, Omnifact is not liable for initial defects in the transfer of use, unless the requirements of section 13.1 or 13.2 are met. The above limitation of liability also applies to the personal liability of Omnifact's directors, officers, employees, and agents.
14.1 The contract for the use of the software is concluded in accordance with the offer for a period corresponding to the confirmed offer.
14.2 In the case of an annual term, the term is automatically extended annually by a further year if the agreement is not terminated by one of the parties subject to a notice period of three months before the end of the respective term. In the case of a monthly term, the contract is automatically extended by one month and can be terminated at any time for the following month.
14.3 Notice of termination must be given in text form, including e-mail.
14.4 The right to extraordinary termination for good cause remains unaffected.
15.1 The parties shall treat as confidential all business secrets, including the content of the contract and other information of the other party marked as confidential (hereinafter referred to as "confidential information"). The receiving party ("Recipient") shall treat the Confidential Information with the same care as it treats its own confidential information of the same sensitivity, but at least with reasonable care.
15.2 The use of confidential information is limited to use in connection with the contract. Confidential information may not be disclosed to third parties without the prior consent of the disclosing party. Consent must be given in writing. No third parties within the meaning of this paragraph are affiliated companies of the parties and consultants who are obliged by law to maintain confidentiality.
15.3 To the extent required by applicable law, the recipient is also entitled to disclose and transfer confidential information. To the extent permitted by law, the recipient shall inform the disclosing party before disclosing confidential information.
15.4 The parties shall impose on their employees or third parties to whom they disclose confidential information a confidential treatment of this information within the framework of the respective subcontractor and employment relationships with the proviso that the obligation to maintain confidentiality shall continue to exist beyond the end of the respective subcontractor or employment relationship unless a corresponding general obligation to maintain confidentiality already exists.
15.5 The obligation to maintain confidentiality does not apply to information that
The burden of proof for the existence of the exceptions mentioned in this paragraph shall lie with the party invoking the exception.
15.6 Upon termination of the entire agreement, the parties shall surrender or delete confidential information in their possession to the other party at the request of that party. This does not apply to confidential information for which there is a longer statutory retention obligation and data backups as part of normal backup processes.
15.7 The obligation to maintain confidentiality shall apply for the term of the entire agreement and for a period of five years after termination of the last agreement concluded under this framework agreement.
16.1 The parties undertake to comply with the applicable data protection regulations, in particular the EU General Data Protection Regulation (GDPR).
16.2 In order to comply with data protection requirements, the parties shall conclude a Data Processing Agreement (DPA) in accordance with Art. 28 GDPR. The conclusion of this agreement between the parties is a mandatory prerequisite for the conclusion of the contract.
17.1 Omnifact reserves the right to amend these ToS at any time with effect for the future, insofar as this amendment is necessary due to changes in the law or jurisdiction or other significant changes to the underlying framework conditions.
17.2 Omnifact will inform the customer of the change to the ToS by e-mail at least six weeks before they are scheduled to take effect. The customer is entitled to object to the amendment no later than two weeks before it is scheduled to take effect.
17.3 If the customer does not object in text form or does not object in due time, this shall be deemed as the customer's consent to the amendment of the ToS and the new provisions shall enter into force at the time they are scheduled to take effect for the customer. This does not apply to changes that modify the essential contractual obligations in their core and/or significantly impair the equivalence ratio between performance and consideration.
17.4 If the customer objects to the change to the terms of use in due time, Omnifact has the choice of continuing the contractual relationship with the customer affected by the change while continuing to apply the old regulation or terminating it without notice on the date on which the planned change comes into effect.
17.5 Omnifact will specifically inform the customer in the change notification of Omnifact's right of termination, the objection period to be observed by the customer and the consequences of an objection.
18.1 German law shall apply to the exclusion of the provisions of the CISG.
18.2 The place of performance for services and payments is Frankfurt am Main.
18.3 Omnifact is also entitled to use third parties as subcontractors for the purpose of contract fulfillment.
18.4 The customer may only offset claims of Omnifact with undisputed or legally established counterclaims (claims).
18.5 The customer shall only be entitled to assert a right of retention or right to refuse performance on the basis of undisputed or legally established counterclaims arising from the same contractual relationship.
18.6 The exclusive place of jurisdiction for all present and future claims arising from or on the basis of the business relationship with merchants, legal entities under public law or special legal funds is Frankfurt am Main.
18.7 Should one of the provisions of this agreement be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by the corresponding statutory provisions.