Terms and Conditions

General Terms and Conditions of SaM Digital Solutions GmbH for the friendlyway Platform

SaM Digital Solutions GmbH (“SaM”) is the provider of the friendlyway Digital Experience Platform (“friendlyway Platform”), which includes modules for, among other things, interactive digital signage, visitor orientation and guidance, visitor management, and visitor compliance for business customers. SaM offers its customers access to and use of the friendlyway Platform as Software-as-a-Service (SaaS), as well as corresponding hardware through which the friendlyway Platform can be accessed and used.

  1. Scope of Application
    1. These General Terms and Conditions (“GTC”) of SaM apply to every contractual relationship between SaM and a Customer where SaM’s service proposal refers to these GTC. The contractual relationship between SaM and the Customer is formed upon the Customer’s receipt of SaM’s order confirmation. The order confirmation again refers to the applicability of these GTC.
    2. The Customer is the party defined as the customer in the order confirmation.
    3. These GTC apply to the use of the friendlyway Platform and to the sale of hardware, such as terminals and tablets, for the use of the friendlyway Platform (“Hardware”).
    4. These GTC, including the service proposal and the order confirmation, apply exclusively and are accepted by the Customer upon placing the order. Conflicting or supplementary contractual terms, in particular the Customer’s terms and conditions, shall not apply, even if SaM does not expressly object to their applicability.
  2. Subject Matter of the Contract
    1. The scope of services relating to the modules of the friendlyway Platform and the Hardware is determined by the service proposal and the further service description in Appendix 1 – Service Description, as well as the specifications in the requirements specification. The parties agree that the objective suitability of the friendlyway Platform and the Hardware for ordinary use, their customary quality, the Customer’s expectations regarding quality, and existing accessories and instructions are irrelevant for the conformity of the friendlyway Platform and the Hardware with the contract.
    2. Where the scope of services includes one or more modules of the friendlyway Platform, the Customer is granted a time-limited right to use the friendlyway Platform as SaaS for the relevant module. The term of the right of use corresponds to the Initial Term as specified in the service proposal or to the Renewal Terms pursuant to these GTC (“Subscription Term(s)”). The Subscription Term begins upon conclusion of the contract unless the service proposal specifies a specific date as the start of the Subscription Term (“Subscription Start Date”).
    3. Where the scope of services also includes Hardware, the Customer purchases the Hardware from SaM for use for an unlimited period, subject to these GTC.
    4. SaM’s service proposal also specifies the storage capacity of the friendlyway Platform (“Storage Capacity”) and the corresponding usage fees for the friendlyway Platform or the purchase price for the Hardware (“Remuneration”).
  3. Conclusion of the Contract and Hierarchy of Documents
    1. After SaM submits a service proposal to the Customer and SaM receives an order from the Customer based on that service proposal, the contract (“Contract”) between SaM and the Customer, subject to these GTC, including appendices, is concluded upon receipt by the Customer of the order confirmation issued by SaM. The subject matter of the Contract regarding the modules of the friendlyway Platform and the Hardware, the Subscription Term, and the Subscription Start Date are set out in the service proposal.
    2. During the Subscription Term, the Customer may expand the scope of the right to use the friendlyway Platform by adding additional Storage Capacity, additional functions or modules, and/or additional access permissions by submitting a corresponding request to SaM, provided that SaM confirms such request in writing, at least in text form, with reference to the additional costs. Upon SaM’s confirmation, the extension shall be deemed added for the remainder of the Subscription Term, subject to the continued applicability of these GTC.
    3. The following terms shall apply and together form the Contract in the following order: 
      1. The service proposal, provided that in the event of contradictions between Appendix 3 – Data Processing Agreement and the service proposal with respect to the processing of personal data, Appendix 3 – Data Processing Agreement shall prevail; 
      2. These GTC, provided that in the event of contradictions between Appendix 3 – Data Processing Agreement and these GTC and/or any other appendices to these GTC with respect to the processing of personal data, Appendix 3 – Data Processing Agreement shall prevail over the GTC and/or all related appendices and/or annexes; 
      3. The appendices to these GTC.
    4. A document belonging to a lower-ranking level may modify a higher-ranking document only if it expressly refers to the provision of the higher-ranking document that is to be modified.
    5. Use of the friendlyway Platform and/or its functions is offered only to entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB). Entrepreneurs are natural or legal persons or partnerships with legal capacity that, when concluding the Contract, act in the exercise of their commercial or independent professional activity.
    6. Unless another document forming part of the Contract is expressly referenced, references to clauses (“Clauses”) refer to a clause in these GTC.
  4. friendlyway Platform
    Where the service proposal includes the friendlyway Platform, the following applies.
    1. Provision of the friendlyway Platform 
      1. Based on the service proposal, SaM shall activate the Customer’s respective access to the agreed modules of the friendlyway Platform for a limited period and with the respective agreed functions. The functional scope of the friendlyway Platform is determined by the provisions of the GTC, including Appendix 1 – Service Description, and the service proposal.
      2. Operation and maintenance of the friendlyway Platform and the IT infrastructure are the responsibility of SaM. The place of performance handover is the router output of the data centre in which the friendlyway Platform is hosted and operated. The Customer is responsible for ensuring it can receive the functions provided through the friendlyway Platform. The Customer has no right to access the source code of the friendlyway Platform. As between the parties, operation and configuration of the functions of the friendlyway Platform for which the Customer has a right of use are the responsibility of the Customer, and the Customer is responsible for instructing its employees accordingly.
      3. The availability of the friendlyway Platform and details regarding support are set out in Appendix 2 – Service Level Agreement.
      4. SaM expressly points out that the Customer’s actual ability to use the friendlyway Platform and/or its functions depends substantially on the quality of networks and telecommunications networks, which are neither part of SaM’s services nor within SaM’s sphere of influence. In particular, radio interference, atmospheric or geographical circumstances, topographical conditions such as bridges, tunnels, buildings, etc., or capacity bottlenecks at telecommunications providers may restrict the availability of the friendlyway Platform. 
      5. Unless otherwise agreed between the parties, the Customer has no claim to the provision of the friendlyway Platform using specific technologies and/or infrastructure, including the software, cloud, and server solutions or providers used by SaM, or as an on-premises solution. SaM reserves the right to modify or change the technologies and infrastructure used at any time at its own discretion. This also applies — subject to any deviating data protection agreements — to changes to or replacements of subcontractors and service providers engaged by SaM.
      6. SaM is entitled to block the Customer’s and/or the Customer’s employees’ access to the friendlyway Platform if:
        • There are indications that access credentials have been or are being misused, or that access credentials have been or are being provided to an unauthorized third party; and/or 
        • Blocking is mandatory for technical reasons, and/or 
        • SaM is legally obliged, or obliged by court, or by official order, to block access; and/or 
        • The Customer has stored incorrect or invalid contact details, and communication between SaM and the Customer is no longer possible; and/or 
        • The Customer has provided incorrect bank account details, and the Customer’s performance obligations cannot be regularly fulfilled.

          When deciding on blocking access, SaM shall appropriately take into account the Customer’s legitimate interests. SaM shall notify the Customer of the blocking in text or written form no later than one (1) business day before the blocking takes effect, insofar as such notice is reasonable after weighing the interests of both parties and is compatible with the purpose of the blocking.
      7. SaM does not perform backups of data stored by Customers. The Customer is obliged to back up the data it enters into the friendlyway Platform. SaM does not perform, and is not obliged to perform, an individual review of the accuracy and completeness of backups. 
      8. SaM is entitled, at its own discretion, to engage subcontractors as vicarious agents for the performance of services.
      9. SaM has the right, in accordance with applicable law, in particular data protection law, to monitor the use of the friendlyway Platform, the content uploaded by the Customer to the friendlyway Platform, or the content processed by the Customer on the friendlyway Platform and/or the functions of the friendlyway Platform, and to collect information, including but not limited to technical and/or diagnostic information, to use it to improve the friendlyway Platform and other SaM products and to verify compliance with this Contract.
    2. Rights of Use
      1. From the Subscription Start Date, SaM grants the Customer the non-exclusive right, limited in time to the respective Subscription Term, to use the friendlyway Platform as SaaS and/or the agreed functions in accordance with the Contract via the internet. This includes, in particular, the right to create individual employees of the Customer as end users of the friendlyway Platform and to permit them to use the friendlyway Platform and/or the functions during the Subscription Term. 
      2. All other rights in and to the friendlyway Platform and/or the functions remain reserved to SaM. In particular, the above grants of rights do not include any right to edit the friendlyway Platform and/or the functions, make them publicly accessible, or provide them to third parties in cases other than those regulated above. 
      3. Excluded from the grant of rights are components of the friendlyway Platform and/or functions that are recognizably subject to third-party rights and, in particular, open-source licences. Components are considered recognizable, in particular, if SaM discloses them as third-party content within the friendlyway Platform and/or in relation to the functions. For such components, only the applicable license terms of the respective third parties apply, in particular, applicable open-source licenses.
      4. The Customer is prohibited from reverse engineering the software or converting it back into other code formats (decompiling). The same applies to the translation or disassembly of the friendlyway Platform and/or its functions or any other attempts to extract the source code of the friendlyway Platform and/or its functions. 
      5. The prohibition on reverse engineering or modifying the friendlyway Platform and/or its functions does not apply where this is permitted to the Customer under applicable law, including, among other things, under the EU Directive on software interoperability or the legislation of the Member States implementing it into national law. 
      6. All rights and title to computer programs, program instructions, systems, data or materials, procedures, processes, and know-how that are in SaM’s possession before conclusion of the Contract and are used by SaM in performing the Contract (so-called “SaM Pre-existing Rights”) shall remain the sole property of SaM. SaM grants the Customer a simple, revocable, geographically unrestricted right to use these SaM Pre-existing Rights to the extent necessary to achieve the purpose of the Contract.
      7. All rights and title to computer programs, program instructions, systems, data, and materials that the Customer provides to SaM either before or after conclusion of the Contract (“Customer Pre-existing Rights”) shall remain the exclusive property of the Customer and shall, upon written request by the Customer after termination of this Contract, either be returned or destroyed. The Customer grants SaM a simple, revocable, geographically unrestricted right to use these Customer Pre-existing Rights to the extent necessary to achieve the purpose of the Contract.
    3. Changes to the friendlyway platform. SaM may make changes to the friendlyway Platform and/or its functions in the following cases:
      1. Extensions. SaM is entitled, but not obliged, to extend and further develop the functional scope of the friendlyway Platform, provided this does not impair the Customer’s objective interests. SaM reserves the right to offer optional extensions and further developments only against payment of additional remuneration. If SaM provides extended or additional functions free of charge after the conclusion of the Contract, these shall be deemed a voluntary service of SaM. 
      2. Reasonable and insignificant changes. SaM is entitled, but not obliged, to change the functional scope of the friendlyway Platform to an extent that is reasonable for the Customer. A change is reasonable in particular if it becomes necessary for good cause — for example, due to disruptions in performance by subcontractors or for security reasons — and the contractually defined performance features in substance and SaM’s main performance obligations are fully retained. If the reasonable changes do not consist solely of extensions of the functions or relate only to insignificant components of the services to be provided by SaM, such as reasonable changes to design and graphic layout, SaM shall notify the Customer of the reasonable change by email at least four (4) weeks before it takes effect.
      3. Other changes. SaM is entitled, but not obliged, to restrict or discontinue the functionality of the friendlyway Platform for reasons other than those stated in Clauses 4.3.1 and 4.3.2, subject to the following condition: SaM shall notify the Customer of the planned changes in text form before the planned effective date and shall separately indicate the new provisions and the date on which the change is planned to take effect.

        At the same time, SaM shall grant the Customer a reasonable period of at least two (2) months to declare whether it accepts the changes. If no declaration is made within this period, which begins upon receipt of the notice in text form, the changes shall be deemed agreed. At the beginning of the period, SaM shall specifically inform the Customer of this legal consequence, namely the right of objection, the objection period, and the significance of silence. If the Customer objects to the planned changes, SaM may, extraordinarily, terminate the Contract, including all orders, with three (3) months’ notice if continued provision of the services without the changes is unreasonable for SaM.
    4. Documentation. SaM provides the Customer with documentation (“Documentation”) of the friendlyway Platform and instructions for its use in electronic form, in German and/or English, online for retrieval and forwarding to employees. Beyond this, the Customer is not entitled to edit, distribute, or make publicly accessible the Documentation or instructions for use.
    5. Warranty Rights. The Customer acknowledges that software, such as the friendlyway Platform, is generally never entirely free of errors. In respect of defects in the provision of the friendlyway Platform, the Customer shall have warranty rights exclusively in accordance with the following provisions:
      1. Defects are more than merely insignificant deviations from the contractually agreed functional scope of the friendlyway Platform. 
      2. In the event of a defect, SaM shall, within a reasonable period and after receipt of a defect notice from the Customer in written or text form, either remedy the defect in the friendlyway Platform and/or the functions provided through it, or provide a replacement, at its discretion. The provision of usage instructions enabling the Customer to reasonably work around defects that have occurred to use the friendlyway Platform and/or the functions provided through it in accordance with the Contract shall also be considered a remedy.
      3. If defect-free provision of the friendlyway Platform and/or the functions provided through it fails for reasons attributable to SaM even within a further reasonable period set by the Customer in writing, the Customer reserves the right to reduce the Remuneration by an appropriate amount. The right of reduction is limited to the amount of the monthly Remuneration relating to the defective part of the service.
      4. If the reduction under Clause 4.5.3 reaches the maximum amount stated in Clause 4.5.3 in three (3) consecutive months, the Customer may terminate the Contract without observing a notice period. 
      5. Claims for damages are subject to the limitations set out in Clause 8 of these GTC. 
      6. The Customer shall have no warranty rights against SaM if the Customer modifies the friendlyway Platform or otherwise interferes with it (or has it modified or interfered with by third parties) or if the friendlyway Platform is not used under the contractually agreed conditions in accordance with the Documentation, unless the Customer proves, in connection with the defect notice, that the interference or non-compliant use was not the cause of the defect. 
      7. The Customer is obliged to notify SaM without undue delay, in written or text form, of any defects that may have occurred. If the Customer breaches this notification obligation, it shall have no rights to reduction, damages, or termination in respect of that defect. 
      8. Furthermore, the Customer shall assist SaM free of charge in rectifying defects and, in particular, shall provide SaM with all information and documents that SaM requires for the analysis and elimination of defects.
      9. If, after notification of a malfunction in the friendlyway Platform, SaM has incurred expenses for defect investigation and there is no defect in the friendlyway Platform, and the Customer could have recognized this, the Customer shall bear the costs incurred as a result. The costs shall be calculated based on SaM’s applicable rates in effect at the time the expenses were incurred.
      10. A defect may also exist if the friendlyway Platform is not suitable for the use presumed under the Contract, if the contractually owed Documentation has not been provided, or if there is a title defect.
      11. SaM’s strict liability for damages under Section 536a of the German Civil Code (BGB) for defects existing at the time of conclusion of the Contract is excluded.
    6. Term and Termination Relating to the friendlyway Platform
      1. This Contract for the use of the friendlyway Platform commences on the date of issuance of the corresponding order confirmation by SaM. The term of the Contract for the use of the friendlyway Platform is defined in the service proposal, but it shall be at least 12 months (“Initial Term”) and shall automatically renew for successive periods of 12 months (“Renewal Term(s)”), unless either party terminates the Contract in writing with three months’ notice before the end of the Initial Term or the respective Renewal Term.
      2. SaM is further entitled to terminate the Contract for the use of the friendlyway Platform without notice if the Customer is more than six (6) weeks past due on payment of the agreed Remuneration and SaM has threatened termination to the Customer in text or written form with two (2) weeks’ notice before the termination takes effect. 
      3. Termination for good cause remains unaffected for both parties. Good cause for SaM exists in particular if: 
        • The Customer has provided incorrect information regarding its financial situation that was of significant importance to SaM’s decision to enter into this Contract for the use of the friendlyway Platform and the provision of services within the scope of the friendlyway Platform;
        • The Customer culpably breaches its obligations under Clauses 6.4 and/or 6.5; 
        • There is a significant deterioration in the Customer’s financial situation, or there is a threat of such a deterioration, thereby jeopardizing the fulfillment of obligations, or
        • The Customer has repeatedly breached its contractual obligations and, where the breach is remediable, has failed, despite a warning, to remedy the consequences of the breach within a reasonable period. 
      4. Termination of the Contract for the use of the friendlyway Platform shall not affect the Contract for the purchase of Hardware.
      5. Upon termination of the Contract, for whatever reason, SaM shall delete the Customer’s data. SaM is entitled, but not obliged, to store data for reasons of data security and integrity for a period of four weeks after the termination of the Contract to protect the Customer against accidental data loss. SaM is also entitled to retain data beyond the termination of the Contract if SaM is legally or officially obliged to do so, in particular for commercial and tax law reasons or for the assertion or defence of legal claims.
  5. Purchase of Hardware
    Where the service proposal includes the purchase of Hardware, the following applies.
    1. Provision of Hardware 
      1. SaM sells the Hardware to the Customer in accordance with these GTC. The Hardware is delivered with pre-installed operating software. The Customer is entitled to use the operating software only in connection with its use in the Hardware. The Documentation for the Hardware is in German and is provided in printed or printable form. 
      2. The Hardware is provided to the Customer by delivery through a transport company selected by SaM. The risk of accidental loss and deterioration of the Hardware passes to the Customer upon handover. Unless otherwise agreed, SaM shall bear the shipping and packaging costs, including transport insurance. 
      3. The delivery date for the Hardware shall be communicated to the Customer by SaM after conclusion of the Contract. 
      4. Upon receipt of the Hardware, the Customer shall inspect the Hardware for defects and notify SaM of any complaints without undue delay (§ 377 HGB – German Commercial Code).
      5. Installation and commissioning of the Hardware is the responsibility of the Customer. 
      6. Unless otherwise agreed, the Hardware shall be handed over without accessories.
      7. The Customer is obliged to ensure that the Hardware is suitable for the Customer’s intended use.
    2. Retention of Title. The Hardware sold remains the property of SaM until the purchase price for the Hardware has been paid in full. Until transfer of ownership, the Customer is obliged to treat the Hardware with due care. SaM must be notified immediately of any seizure, insolvency, damage, or loss of the Hardware, as well as any change in ownership.
    3. Rights of Use
      1. Upon handover of the Hardware, SaM grants the Customer the non-exclusive, unlimited in time, worldwide right to use the Hardware and, where applicable, the software installed on the Hardware for the use and operation of the Hardware (collectively the “Operating Software”) in accordance with the Contract. 
      2. All other rights to the Operating Software remain reserved to SaM or SaM’s licensors. In particular, the above grants of rights do not include any right to modify the Operating Software, make it publicly accessible, or transfer it to third parties except in the cases specified above.
      3. Excluded from the grant of rights are components of the Operating Software that are recognizably subject to third-party rights and, in particular, open-source licences. Components are considered recognizable, in particular, if SaM discloses them as third-party content within the Hardware, in Appendix 1 – Service Description, and/or in relation to the functions. For such components, only the applicable license terms of the respective third parties apply, in particular, applicable open-source licenses.
      4. The Customer is prohibited from reverse engineering the software or converting it back into other code formats (decompiling). The same applies to the translation or disassembly of the Operating Software or any other attempts to extract the source code of the Operating Software.
      5. The prohibition on reverse engineering or modifying the Operating Software does not apply where this is permitted to the Customer under applicable law, including, among other things, under the EU Directive on software interoperability or the legislation of the Member States implementing it into national law.
    4. Warranty Rights. In respect of defects in the Hardware, the Customer shall have warranty rights exclusively in accordance with the following provisions:
      1. Defects are more than merely insignificant deviations from the contractually agreed functional scope of the Hardware. 
      2. In the event of a defect, SaM shall, within a reasonable period and after receipt of a defect notice from the Customer in written or text form, either repair the Hardware or provide a replacement, at its discretion. The provision of instructions for use that enable the Customer to reasonably circumvent any defects that have arisen to use the Hardware in accordance with the Contract shall also be considered a repair. 
      3. If defect-free provision of the Hardware fails for reasons attributable to SaM even within a further reasonable period set by the Customer in writing, the Customer reserves the right either to withdraw from the Contract or reduce the Remuneration by a reasonable amount. 
      4. The Customer shall have no warranty rights against SaM if the Customer modifies the Hardware or otherwise interferes with it (or has it modified or interfered with by third parties) or if the Hardware is not operated under the contractually agreed conditions in accordance with the Documentation, unless the Customer proves, in connection with the defect notice, that the interference or non-compliant operation was not the cause of the defect. 
      5. The Customer is obliged to notify SaM without undue delay, in written or text form, of any defects that may have occurred. Failure to comply with this notification obligation forfeits the Customer’s warranty rights against SaM in connection with such defect.
      6. Furthermore, the Customer shall assist SaM free of charge in rectifying defects and, in particular, shall provide SaM with all information and documents that SaM requires for the analysis and elimination of defects.
      7. The Customer’s warranty rights for the Hardware against SaM shall exist for one year from the date the Hardware is handed over to the carrier. This limitation does not apply to claims for damages based on the breach by SaM of claims for subsequent performance in respect of defects. Claims for damages based on a refusal to provide subsequent performance may only be asserted within the statutory limitation period if the Customer has asserted the claim for subsequent performance within the shortened period for warranty rights.
      8. If, after notification of a malfunction in the Hardware, SaM has incurred expenses for defect investigation and there is no defect in the Hardware, and the Customer could have recognised this, the Customer shall bear the costs incurred as a result. The costs shall be calculated based on SaM’s applicable rates in effect at the time the expenses were incurred.
      9. A defect may also exist if the Hardware is not suitable for the use specified in the Contract, if the Documentation required under the Contract has not been provided, or if there is a title defect.
  6. Obligations and Responsibilities of the Customer
    1. The Customer shall designate to SaM a contact person within its organization (“Customer Contact Person”) who is authorized to receive and submit declarations of intent in connection with the Contract with SaM.
    2. The Customer undertakes to oblige its employees to treat the access credentials for the friendlyway Platform confidentially and to notify SaM without undue delay if there is a suspicion that access credentials may have become known to unauthorized persons. This applies in particular, but not exclusively, if the Customer has reason to believe that third parties have gained unauthorized access to the access credentials and/or to the friendlyway Platform. “Third parties” are all natural persons and/or companies that are not a party to the Contract and/or employees of the Customer.
    3. The Customer is obliged to provide SaM, free of charge, with the cooperation reasonably required for the provision of the friendlyway Platform and/or its functions and/or for the performance of other services.
    4. Use of the friendlyway Platform is permissible only under the following conditions:
      1. The Customer undertakes to comply with all legal requirements, including, but not limited to, any applicable laws, regulatory requirements, and/or official guidelines, when collecting, processing, and using data provided or processed through the friendlyway Platform and/or its functions. In particular, the Customer guarantees that it shall not collect, process, or use any personal data without the data subject’s express consent or statutory permission under German law.
      2. The Customer undertakes not to upload to or process via the friendlyway Platform any content that is unlawful, offensive, racist, discriminatory, pornographic, or obscene. 
      3. The Customer undertakes to provide employees with a privacy policy for the friendlyway Platform and to comply with it. The privacy policy must clearly and comprehensibly explain to end users what user information is collected by the friendlyway Platform and/or its functions, how this information is used, and to what extent it is shared with SaM or third parties.
      4. The Customer grants SaM a simple, geographically and temporally unrestricted right of use to all content transferred to SaM’s servers (or the servers of SaM’s service providers) in the course of the Customer’s use of the friendlyway Platform (including use by the Customer’s employees) to use the content to the extent necessary to fulfill the Contract with the Customer, in particular to reproduce the content and make it accessible to employees or third parties in accordance with the Customer’s settings.

        SaM is entitled to grant sublicences to its vicarious agents to the extent necessary to fulfill the Contract. Otherwise, the right of use is non-transferable. SaM is entitled to retain content beyond the term of the Contract to the extent that it is technically or legally necessary. In particular, SaM is authorized to retain backup copies of the provided content and to temporarily or permanently store such information as is required for accounting, documentation, and billing purposes.
      5. The Customer is obliged to back up the data entered by it into the friendlyway Platform regularly and in accordance with the level of risk to prevent data loss in the event of an error. This applies to both data stored on employees’ local systems and data stored by employees using the friendlyway Platform.
      6. The Customer shall ensure that only data relevant to the respective function of the friendlyway Platform is provided from its IT systems via the interface(s). In particular, the interface(s) must not be used to transmit (i) any viruses or other malware, (ii) any content that infringes applicable law or the rights of third parties (in particular copyrights and personal rights), or (iii) any other content not covered by this Contract. The above obligations apply accordingly to any datasets uploaded into SaM’s system.
      7. The Customer undertakes to impose on its employees those obligations under this Contract that are necessary for the contractual use of the friendlyway Platform and the Hardware by the Customer and its employees. The Customer is obliged to take all measures to ensure that it has sufficient rights to grant the rights under Clause 6.4.3 in full and validly.
    5. The Customer may use the friendlyway Platform exclusively for the purposes agreed by the parties. In particular, any use of the friendlyway Platform is expressly prohibited:
      1. for any unlawful activities; and
      2. for abusive purposes, such as intentionally overloading SaM’s IT infrastructure or conducting benchmark tests on it.
    6. The Customer shall indemnify SaM against all third-party claims asserted against SaM due to the use of the friendlyway Platform by the Customer or the Customer’s employees in culpable breach of Contract. SaM shall, without undue delay, inform the Customer of claims asserted by third parties and shall provide the information and documents required for defence upon request. In addition, SaM shall either leave the defence to the Customer or conduct it in consultation with the Customer. In particular, SaM shall neither acknowledge nor treat any claims asserted by third parties as undisputed without consulting the Customer. The provisions of this Clause apply accordingly to contractual penalties and administrative or judicial fines and penalties, insofar as the Customer is responsible for them.
    7. If the Customer does not fulfill its cooperation obligations in due time by the agreed dates or within a reasonable period upon SaM’s request, and SaM has informed the Customer of this, the contractually binding schedules and/or deadlines agreed with respect to the provision of the friendlyway Platform and/or the functions and/or the provision of services by SaM shall be deemed extended by the period required by the Customer to fulfill its cooperation obligations. Any additional expense incurred by SaM as a result of the Customer’s culpable breach of cooperation obligations shall be reimbursed by the Customer separately.
  7. Remuneration
    1. The Customer shall pay the Remuneration agreed in the service proposal for the use of the friendlyway Platform and/or for the purchase of the Hardware, as specified in the service proposal.
    2. For the use of the friendlyway Platform, the Customer shall pay SaM remuneration in the form of a monthly flat-rate fee. For the Hardware, the Customer shall pay SaM a one-time remuneration. 
    3. The Remuneration is net plus applicable value-added tax.
    4. Invoicing for use of the friendlyway Platform shall take place in advance at the beginning of each agreed billing period. Invoicing for the Hardware shall take place after the Contract has been concluded. The invoiced Remuneration is due within fourteen (14) calendar days after receipt of the invoice. If the Customer issues a SEPA direct debit mandate, SaM shall debit the invoice amount from the agreed account no earlier than the seventh (7th) day after the invoice date and the SEPA pre-notification.
  8. Liability
    1. SaM shall be liable without limitation for damage caused intentionally or by gross negligence, as well as for damage arising from injury to life, body or health, and, in the case of product liability, for damage under the German Product Liability Act, as well as in all other cases in which liability under German law is mandatorily unlimited, for example where a warranty has been provided.
    2. SaM shall also be liable for damage arising from breach of cardinal obligations. Cardinal obligations are the fundamental obligations that form the essence of the Contract, were decisive for the conclusion of the Contract, and on the fulfillment of which the parties may rely. 
      1. If SaM fails to fulfill its cardinal obligations due to ordinary negligence, its liability shall be limited to the amount that was foreseeable to SaM at the time the relevant service was provided, and that is typical within the scope of the Contract. 
      2. Unless otherwise provided in Clause 8, liability for damage due to data loss in the case of Clause 8.2 and ordinary negligence is limited to the amount required for restoring the data that would also have been incurred if the Customer had backed up the data regularly and in accordance with the risk.
    3. Unless otherwise provided in Clauses 8.1 and 8.2, the following limitations of liability apply:
      1. SaM’s total liability for immediate/direct damage in the case of ordinary negligence is limited, in the aggregate and for all damage, to the maximum single amount of the Remuneration (100%) payable by the Customer in the calendar year in which the damage arose. For clarification: this limitation of liability applies regardless of the legal basis (e.g., non-performance, impossibility of performance, warranty, default, fault upon conclusion of the Contract, breach of an ancillary obligation, tort). The parties agree that this limitation is appropriate in view of the Customer’s potential damage and the possible damage that may occur under the Contract. 
      2. Liability for consequential/indirect damage (e.g., loss of use, lost profit) is excluded.
      3. Strict liability under Section 536a BGB for defects already existing at the time of conclusion of the Contract is excluded.
    4. The limitations of liability apply accordingly in favour of SaM’s employees, agents, and vicarious agents.
  9. Confidentiality
    1. The parties acknowledge that, in the course of performing the Contract, they may obtain information about products (such as services — including the friendlyway Platform and its functions) of the respective other party or relating to the parties themselves, which is confidential and proprietary in nature (“Confidential Information”).

      Confidential Information means materials and communications regarding the business and marketing strategies of SaM or the Customer, including but not limited to employee and customer lists and profiles, project plans, advertising plans, developments, design and coding, interfaces to the friendlyway Platform and the functions provided through it, as well as anything made available by one party to the other in connection with the provision of services related to the friendlyway Platform, including but not limited to computer programs, technical drawings, algorithms, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics, and other technical plans or other information of the parties that, by its nature, can reasonably be assumed to be protected and confidential, regardless of whether it is presented orally, in printed form, in writing, graphically, photographically, or in any other manner (including information received, stored, or transmitted electronically), even if not expressly designated as Confidential Information.

      Confidential Information also includes all notes, summaries, and analyses of the foregoing prepared by the party receiving the Confidential Information.
    2. The parties shall treat the Confidential Information of the respective other party as confidential at all times during the Initial Contract Term and/or any Renewal Terms and for a period of three years thereafter, and shall not use it other than as necessary to fulfill their obligations under the Contract. The parties shall also not disclose Confidential Information to third parties without the prior written consent of the respective other party — except for affiliated companies within the meaning of Sections 15 et seq. of the German Stock Corporation Act (AktG) — provided that each party is permitted to disclose the Confidential Information of the respective other party to the extent such disclosure has been approved in writing by the relevant other party or is necessary to enforce its rights under the Contract.
    3. The confidentiality obligations do not apply to information that:
      • is accessible to the general public or has otherwise been made publicly available, provided that such disclosure or accessibility is not due to a breach of the Contract by either party;
      • was already in the possession of the receiving party without restriction before its disclosure under the Contract;
      • was provided to the receiving party after its disclosure under the Contract by third parties authorized to disclose the information, without any confidentiality obligation; or
      • was independently developed by the receiving party without the use of Confidential Information.
    4. Notwithstanding any contrary provisions herein, either party may comply with a court order or an order issued by another governmental body of the competent jurisdiction and disclose the Confidential Information of the respective other party in accordance with the relevant order only if it:
      • notifies the other party in writing of the disclosure beforehand, unless legally prohibited, to the extent the time between the order and disclosure allows, or, if time does not allow, informs the other party without undue delay after execution of the court order; and
      • cooperates with the other party, at that other party’s expense, using best efforts to obtain a protective order or confidential treatment or takes other measures to avert or limit disclosure. The parties undertake not to disclose more Confidential Information of the respective other party than is necessary to comply with the relevant order.
  10. Data Protection
    1. The parties shall process personal data exclusively in accordance with the provisions of applicable data protection laws, in particular the EU General Data Protection Regulation (“GDPR”) and the German Federal Data Protection Act.
    2. Insofar as SaM processes personal data on behalf of the Customer, the parties shall enter into the Data Processing Agreement attached as Appendix 3 – Data Processing Agreement in accordance with the requirements of Article 28 of the GDPR.
  11. Marketing
    1. SaM is entitled to name the Customer as a reference customer in marketing materials, including websites, by stating the full company name and using the company logo.
    2. Any use of or reference to SaM’s trademarks and their logos (collectively, the “Trademarks”) requires SaM’s express prior written consent. If SaM permits the Customer to use the Trademarks, the Customer may use the Trademarks only to the extent and for the purpose expressly approved by SaM.
  12. Force Majeure
    If a party is unable to fulfill an obligation under the Contract due to natural events or other circumstances for which the party is not responsible and which are beyond the party’s control (“Force Majeure Event”), it shall inform the other party thereof within a reasonable period and make reasonable efforts to fulfill the obligation nonetheless. Upon receipt of such notification, performance of the Contract shall be suspended. If, after expiry of thirty (30) calendar days after the other party has received notice of the Force Majeure Event, the party is still unable to fulfill its obligation, the other party is entitled to terminate this Contract extraordinarily in writing.
  13. Final Provisions
    1. Amendments and ancillary agreements to the Contract must be in writing. This also applies to this written form clause. 
    2. The Customer may set off claims against SaM’s claims or assert a right of retention only if the counterclaim is undisputed or has been legally established or is in a synallagmatic relationship with the respective claim concerned.
    3. Unless expressly agreed otherwise in the Contract, the Customer is not entitled to assign or otherwise transfer to third parties any claims it may have against SaM without prior written consent.
    4. The contractual language is German. Translations into other languages serve exclusively for comprehensibility and are legally non-binding.
    5. The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods.
    6. The exclusive place of jurisdiction for all disputes arising out of or in connection with this Contract is Munich.
    7. Should individual provisions of the Contract be or become invalid or void, this shall not affect the validity of the remaining provisions. In such a case, the invalid or void provisions shall instead be interpreted, reinterpreted, or replaced in such a way that the legal and economic purpose intended by them is achieved.

List of Appendices

Appendix 1 – Service Description

Appendix 2 – Service Level Agreement

Appendix 3 – Data Processing Agreement

Appendix 1 – Service Description

The friendlyway Platform and the Hardware have the following functionality and performance characteristics. 

  1. Service Description
    1. “Interactive Digital Signage and Infoboards” module (requires appropriate Hardware)
      • Functionality for displaying media content and interactive content on devices/monitors (not included)
      • Web-based content management system for media content playlists
      • Web-based content management system for interactive HTML5 ScreenFlows
      • Secure browser for intranet and desktop applications, as well as web content
      • Functionality for integrating sensors into the Hardware to trigger content/functions
    2. “Visitor Management and Self-Check-In” module (requires appropriate Hardware)
      • Configurable email invitation templates (in German and English)
      • Functionality for group invitations via email
      • Functionality for QR code/PIN code check-in for registered visitors
      • Functionality for manual self-registration of visitors for ad hoc visits
      • Centralized cross-site visitor management
      • Alternative workflows for different visitor types (business visits, delivery services, suppliers, service providers, etc.).
      • Functionality for custom forms/questionnaires for check-in/registration
      • Functionality for printing visitor badges using custom templates (corresponding Hardware required)
      • Functionality for issuing/collecting appropriately programmed visitor access cards (appropriate Hardware and integration with the access management system required)
      • Functionality for visitor check-out
      • Real-time overview of checked-in visitors via the web interface
      • Real-time overview of checked-in visitors via the dashboard
      • Functionality for manual check-in and check-out of visitors by reception staff via the web interface
      • Detailed reports and logs on visits and visitors
      • Optional module for managing and qualifying service providers (Types A, B, C)
    3. “WayFinding” module (requires appropriate Hardware)
      • Functionality for interactive digital maps with search and routing capabilities within buildings across the entire campus
      • Functionality for a web-based map editor for POI and route updates
    4. “Video Calls” module (requires appropriate Hardware)
      • Functionality for an audio or video call from a terminal to a software client on the Customer’s computer
      • Functionality for selecting call recipients (i.e., phone directory)
      • (Optional) Integration with the Customer’s SIP phone system to enable calls to company numbers or extensions
      • (Optional) Integration with the Customer’s Microsoft Teams to enable calls to Teams members or extensions
    5. System-wide capabilities of the friendlyway Platform (module-independent)
      • Content/user screens and application interface (German and English)
      • General functionality for integration with Customer-specific SSO and identity provider systems based on SAML 2.0 or OIDC protocols, subject to agreement with SaM
      • Self-management of user roles and access rights
      • Out-of-the-box integrations with Hardware components (card readers, barcode scanners, etc.)
      • Certain APIs for integration with the Customer’s access management systems
  2. Storage Space. SaM provides the Customer with 15 GB of storage space for use of the friendlyway Platform. Should the Customer require additional storage space, this requires a separate agreement with SaM.
  3. Out of Scope. The parties agree that services not listed under Section 1 or in the service proposal are not owed by SaM. For clarification, but without claiming completeness, it is expressly noted that the following services are not part of the services owed under the Contract:
    • Customer-specific adaptation of content or Customer account settings and configuration of the friendlyway Platform
    • Adaptation and maintenance of existing interfaces according to Customer requirements
    • Integration of the friendlyway Platform with Customer IT systems (e.g., for data exchange, monitoring, etc.)
    • Monitoring and management of end devices (terminals and kiosks) with respect to trouble-free operation, updates, and security
    • Backup or restoration of Customer content and data on the friendlyway Platform or end devices
    • Translation of Customer content into multiple languages

Appendix 2 – Service Level Agreement

  1. Availability
    1. Unless otherwise agreed with the Customer, SaM shall provide the friendlyway Platform with availability of 99% per month (“Availability Rate”).
    2. The friendlyway Platform is considered available if, during the agreed period, it is provided or accessible in accordance with the agreed Availability Rate. The Availability Rate is calculated as follows:

      Actual Availability (in minutes)× 100= Availability Rate
      Total Availability (in minutes)
    3. The Availability Rate is defined as follows.
      Total Availability is 24 hours a day for every day of the month, expressed in minutes.
      Actual Availability means Total Availability minus downtime in minutes.
      Downtime means the time, in minutes, during which the Customer cannot use the friendlyway Platform for the contractually agreed purposes, excluding non-usability of the friendlyway Platform due to Excused Downtime.
      Excused Downtime includes:
      • unforeseen maintenance work that becomes necessary, provided that such work was caused by force majeure or was otherwise not caused by SaM;
      • downtime resulting from virus or hacker attacks, provided that SaM has taken the usual protective measures;
      • downtime resulting from the Customer’s requirements, unavailability of the Customer’s equipment, or other interruptions caused by the Customer (e.g., failure to provide necessary cooperation);
      • disruptions or downtime due to malfunctions or functional deviations in integrated interfaces of third-party systems;
      • disruptions or downtime due to faulty or inconsistent import of data from third-party systems;
      • disruptions or downtime caused by faulty or inconsistent configuration or administration of system settings or user rights in the friendlyway Platform by the Customer;
      • downtime required for the installation of urgently necessary security patches;
      • maintenance or other services coordinated with the Customer that make access to the friendlyway Platform impossible;
      • regular maintenance windows from Saturday 6:00 p.m. to Sunday 11:00 p.m.
    4. Upon the Customer’s request, SaM shall provide a report on monthly availability.
  2. Resolution of Incidents
    If the friendlyway Platform is not available for use in accordance with the Contract (“Incident”), SaM shall handle the Incident as follows.
    1. SaM shall initiate the resolution of the Incident within a period specified in the table below, depending on the Incident Class, starting from receipt of the Customer’s report of the Incident:
      • by email to [email protected],
      • or via the online portal https://helpdesk.friendlyway.com/de/support/login,
      • or by phone at 0049 (0) 89 58 80 44 40,

        and shall inform the Customer thereof (“Response Time”) and shall eliminate the Incident, if necessary, by means of a workaround that is reasonable for the Customer (“Recovery Time”).

        Incident ClassResponse Time (hours)Recovery Time (hours)
        1424
        22448
        34872
    2. SaM shall assign the Incident to an Incident Class taking into account the following considerations and the Customer’s interests:
      • Incident Class 1: serious disruptions that prevent the use of the friendlyway Platform; e.g., all or essential functionalities of the friendlyway Platform specified in the Service Description in Appendix 1 are completely unavailable; no workaround exists for the Customer.
      • Incident Class 2: significant faults that substantially impair the use of the friendlyway Platform.
      • Incident Class 3: minor faults that do not substantially impair the use of the friendlyway Platform; e.g., typos in the user interface.
    3. An Incident report submitted by the Customer must include the following information:
      • name and contact details (phone number or email) of the person submitting the Incident report;
      • the time when the error occurred or was discovered;
      • a detailed description of the error, including screenshots and the user actions preceding the error;
      • a contact person on the Customer’s side who can provide further information for diagnostics or reproduction of the error.
    4. SaM shall, with the Customer’s cooperation, set up a connection (via email or interfaces) to a ticket management system to automatically receive service tickets from the Customer’s system.
  3. Service Hotline
    1. Telephone customer service is available Monday to Friday from 8:00 a.m. to 6:00 p.m. German time, excluding public holidays in Bavaria as well as Christmas Eve and New Year’s Eve.
    2. Via the service hotline, SaM provides telephone support in the event of errors, application problems, incidents, or other difficulties related to processes on the friendlyway Platform. SaM does NOT provide training or advice via the service hotline regarding the day-to-day operation, functionality, or normal usage of the friendlyway Platform.
  4. SLA Penalties
    1. If the availability of the friendlyway Platform promised in Section 1.1 falls below the agreed level in a calendar month, the Customer shall be entitled to service credits in accordance with the following scale.
    2. The service credits shall be applied to the monthly service fee for the following month or refunded upon termination of the Contract.
    3. The service credits are the sole and exclusive compensation for availability shortfalls.
    4. The service credit scale:

      Availability RateService Credit
      99.0% to 98.5%5% of the monthly service fee
      98.5% to 98.0%10% of the monthly service fee
      98.0% to 97.0%15% of the monthly service fee
      97.0% to 95.0%25% of the monthly service fee
      95.0% to 90.0%50% of the monthly service fee
      Below 90.0%100% of the monthly service fee
    5. The total amount of all service credits per calendar month is limited to 100% of the monthly service fee.
    6. Extraordinary termination right: If availability falls below 95% in three consecutive months or in four months within one year, the Customer shall have the right to terminate the Contract extraordinarily with 30 calendar days’ notice.
    7. Service credits are not granted automatically but must be claimed by the Customer in writing (email is sufficient) within 30 days after the end of the affected calendar month.
    8. If accepted, the service credit shall be offset against the next invoice or refunded within 30 days.

Appendix 3 – Data Processing Agreement 

Standard Contractual Clauses

SECTION I 

Clause 1 

Purpose and Scope 

  1. These standard contractual clauses (hereinafter “Clauses”) are intended to ensure compliance with Article 28(3) and (4) of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons regarding the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
  2. The Controllers and Processors listed in Annex I have agreed to these Clauses to ensure compliance with Article 28(3) and (4) of Regulation (EU) 2016/679 and/or Article 29(3) and (4) of Regulation (EU) 2018/1725.
  3. These Clauses apply to the processing of personal data as specified in Annex II.
  4. Annexes I to IV form an integral part of the Clauses. 
  5. These Clauses apply without prejudice to the obligations to which the Controller is subject under Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725. 
  6. These Clauses alone do not ensure fulfillment of obligations relating to international data transfers under Chapter V of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.

Clause 2 

Invariability of the Clauses 

  1. The parties undertake not to amend the Clauses, except to supplement or update the information specified in the annexes.
  2. This does not prevent the parties from incorporating the standard contractual clauses set out in these Clauses into a broader Contract and from adding further clauses or additional safeguards, provided that they do not directly or indirectly contradict the Clauses or restrict the fundamental rights or freedoms of data subjects.

Clause 3 

Interpretation 

  1. Where these Clauses use terms defined in Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, such terms shall have the same meaning as in the relevant Regulation. 
  2. These Clauses shall be interpreted in light of the provisions of Regulation (EU) 2016/679 or Regulation (EU) 2018/1725. 
  3. These Clauses shall not be interpreted in a manner that conflicts with the rights and obligations provided for in Regulation (EU) 2016/679 or Regulation (EU) 2018/1725, or that restricts the fundamental rights or freedoms of data subjects.

Clause 4 

Precedence 

In the event of a contradiction between these Clauses and the provisions of related agreements that exist between the parties or are entered into or concluded at a later date, these Clauses shall prevail.

Clause 5 – optional 

Docking Clause 

  1. An entity that is not a party to these Clauses may, with the consent of all parties, accede to these Clauses at any time as a Controller or as a Processor by completing the annexes and signing Annex I. 
  2. After completing and signing the annexes referred to in point (a), the acceding entity shall be treated as a party to these Clauses and shall have the rights and obligations of a Controller or Processor as designated in Annex I. 
  3. The acceding entity shall have no rights or obligations arising from these Clauses for the period before its accession as a party.

SECTION II 

OBLIGATIONS OF THE PARTIES 

Clause 6 

Description of Processing 

Details of the processing operations, in particular the categories of personal data and the purposes for which the personal data are processed on behalf of the Controller, are set out in Annex II.

Clause 7 

Obligations of the Parties 

7.1 Instructions 

  1. The Processor shall process personal data only on documented instructions from the Controller, unless it is required to process the data under Union law or the law of a Member State to which it is subject. In such a case, the Processor shall inform the Controller of those legal requirements before processing, unless the relevant law prohibits this on important grounds of public interest. The Controller may issue further instructions throughout the processing of personal data. These instructions shall always be documented.
  2. The Processor shall inform the Controller without undue delay if it considers that instructions issued by the Controller infringe Regulation (EU) 2016/679, Regulation (EU) 2018/1725, or applicable data protection provisions of the Union or the Member States.

7.2 Purpose limitation

The Processor shall process the personal data only for the specific purpose(s) set out in Annex II, unless it receives further instructions from the Controller.

7.3 Duration of the processing of personal data

The data shall be processed by the Processor only for the duration specified in Annex II.

7.4 Security of processing

  1. The Processor shall implement at least the technical and organizational measures listed in Annex III to ensure the security of the personal data. This includes protecting the data against security breaches that, whether accidentally or unlawfully, result in destruction, loss, alteration, unauthorized disclosure of, or unauthorized access to the data (hereinafter “Personal Data Breach”). When assessing the appropriate level of protection, the parties shall duly take into account the state of the art, the costs of implementation, the nature, scope, context, and purposes of the processing, and the risks for the data subjects.
  2. The Processor shall grant its personnel access to the personal data undergoing processing only to the extent strictly necessary for the performance, management, and monitoring of the Contract. The Processor shall ensure that persons authorized to process the personal data received have committed themselves to confidentiality or are subject to an appropriate statutory duty of confidentiality.

7.5 Sensitive data

Where the processing concerns personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership, or genetic data or biometric data for uniquely identifying a natural person, data concerning health, a person’s sex life or sexual orientation, or data relating to criminal convictions and offences (hereinafter “Sensitive Data”), the Processor shall apply specific restrictions and/or additional safeguards.

7.6 Documentation and compliance with the Clauses

7.7 Use of sub-processors

  1. GENERAL WRITTEN AUTHORIZATION: The Processor has the general authorization of the Controller to engage Sub-processors included in an agreed list. The Processor shall expressly notify the Controller in writing at least 30 calendar days in advance of any intended changes to this list by adding or replacing Sub-processors, thereby allowing the Controller sufficient time to raise objections to such changes before the relevant Sub-processor(s) are engaged. The Processor shall provide the Controller with the information necessary for the Controller to exercise its right to object.
  2. Where the Processor engages a Sub-processor to carry out specific processing activities (on behalf of the Controller), such engagement shall be governed by a contract that imposes on the Sub-processor substantially the same data protection obligations as those applicable to the Processor under these Clauses. The Processor shall ensure that the Sub-processor fulfills the obligations to which the Processor is subject under these Clauses and pursuant to Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725.
  3. The Processor shall provide the Controller, at the Controller’s request, with a copy of such sub-processing contract and any subsequent amendments. To the extent necessary to protect trade secrets or other confidential information, including personal data, the Processor may redact the contract text before providing a copy.
  4. The Processor shall remain fully liable to the Controller for ensuring that the Sub-processor fulfills its obligations arising from the contract concluded with the Processor. The Processor shall notify the Controller if the Sub-processor fails to fulfill its contractual obligations.
  5. The Processor shall agree with the Sub-processor on a third-party beneficiary clause under which the Controller — if the Processor factually or legally ceases to exist or becomes insolvent — has the right to terminate the sub-processing contract and instruct the Sub-processor to delete or return the personal data.

7.8 International data transfers

  1. Any transfer of data by the Processor to a third country or an international organization shall take place exclusively based on documented instructions from the Controller or to comply with a specific provision under Union law or the law of a Member State to which the Processor is subject, and must comply with Chapter V of Regulation (EU) 2016/679 or Regulation (EU) 2018/1725.
  2. The Controller agrees that, in cases where the Processor engages a Sub-processor pursuant to Clause 7.7 for the performance of specific processing activities (on behalf of the Controller), and such processing activities involve a transfer of personal data within the meaning of Chapter V of Regulation (EU) 2016/679, the Processor and the Sub-processor may ensure compliance with Chapter V of Regulation (EU) 2016/679 by applying standard contractual clauses adopted by the Commission pursuant to Article 46(2) of Regulation (EU) 2016/679, provided that the conditions for the use of such standard contractual clauses are met.

Clause 8
Assistance to the Controller

  1. The Processor shall inform the Controller without undue delay of any request it has received from the data subject. The Processor shall not respond to the request itself unless authorized by the Controller to do so.
  2. Taking into account the nature of the processing, the Processor shall assist the Controller in fulfilling the Controller’s obligation to respond to requests from data subjects exercising their rights. In fulfilling its obligations under points (a) and (b), the Processor shall act in accordance with the Controller’s instructions.
  3. In addition to the Processor’s obligation to assist the Controller under Clause 8(b), the Processor shall, taking into account the nature of the data processing and the information available to the Processor, also assist the controller in complying with the following obligations: 
    1. The obligation to assess the impact of the planned processing operation on the protection of personal data (hereinafter “Data Protection Impact Assessment”), where the processing operation is likely to result in a high risk to the rights and freedoms of natural persons;
    2. The obligation to consult the competent supervisory authority or authorities before processing, where the Data Protection Impact Assessment indicates that the processing would result in a high risk, unless the Controller takes measures to mitigate that risk;
    3. The obligation to ensure that the personal data is accurate and up to date by informing the Controller without undue delay if the Processor becomes aware that the personal data it processes is inaccurate or outdated;
    4. Obligations under Article 32 of Regulation (EU) 2016/679.
  4. The parties shall set out in Annex III the appropriate technical and organizational measures for the Processor’s assistance to the Controller in applying this Clause, including the scope and extent of the required assistance.

Clause 9
Notification of Personal Data Breaches

In the event of a Personal Data Breach, the Processor shall cooperate with and assist the Controller in fulfilling the Controller’s obligations under Articles 33 and 34 of Regulation (EU) 2016/679 or, where applicable, Articles 34 and 35 of Regulation (EU) 2018/1725, taking into account the nature of the processing and the information available to the Processor.

9.1 Breach concerning data processed by the Controller

In the event of a Personal Data Breach relating to data processed by the Controller, the Processor shall provide the Controller with the following assistance:

  1. Reporting the Personal Data Breach to the competent supervisory authority or authorities without undue delay after the Controller becomes aware of the breach, where relevant (unless the breach is unlikely to result in a risk to the rights and freedoms of natural persons);
  2. Obtaining the following information to be included in the Controller’s notification pursuant to Article 33(3) of Regulation (EU) 2016/679, whereby such information must include at least the following:
    1. The nature of the personal data, including, where possible, the categories and approximate number of data subjects affected, as well as the categories and approximate number of personal data records concerned;
    2. The likely consequences of the Personal Data Breach;
    3. The measures taken or proposed by the Controller to remedy the Personal Data Breach and, where applicable, measures to mitigate its possible adverse effects.

      Where and insofar as not all such information can be provided at the same time, the initial notification shall contain the information available at that time, and further information shall be provided subsequently without undue delay as soon as it becomes available;
  3. In complying with the obligation under Article 34 of Regulation (EU) 2016/679, notifying the data subject without undue delay of the Personal Data Breach where that breach is likely to result in a high risk to the rights and freedoms of natural persons.

9.2 Breach concerning data processed by the Processor

In the event of a Personal Data Breach relating to data processed by the Processor, the Processor shall notify the Controller without undue delay upon becoming aware of the breach. Such notification shall include at least the following information:

  1. A description of the nature of the breach (including, where possible, the categories and approximate number of data subjects affected, and the approximate number of personal data records concerned);
  2. Contact details of a point of contact from which further information regarding the Personal Data Breach can be obtained;
  3. The likely consequences and the measures taken or proposed to remedy the Personal Data Breach, including measures aimed at mitigating its possible adverse effects.

Where and insofar as not all such information can be provided at the same time, the initial notification shall contain the information available at that time, and further information shall be provided subsequently without undue delay as soon as it becomes available.

The parties shall set out in Annex III any other information that the Processor must provide to assist the Controller in fulfilling its obligations under Articles 33 and 34 of Regulation (EU) 2016/679.

SECTION III 

FINAL PROVISIONS 

Clause 10 

Breach of the Clauses and Termination of the Contract

  1. If the Processor fails to fulfill its obligations under these Clauses, the Controller may — without prejudice to the provisions of Regulation (EU) 2016/679 and/or Regulation (EU) 2018/1725 — instruct the Processor to suspend the processing of personal data until it complies with these Clauses or the Contract is terminated. The Processor shall inform the Controller without undue delay if, for whatever reason, it is unable to comply with these Clauses.
  2. The Controller is entitled to terminate the Contract insofar as it concerns the processing of personal data pursuant to these Clauses if:
    1. The Controller has suspended the processing of personal data by the Processor pursuant to point (a), and compliance with these Clauses has not been restored within a reasonable period, and in any event within one month after the suspension;
    2. The Processor is in substantial or persistent breach of these Clauses or fails to fulfill its obligations under Regulation (EU) 2016/679 or Regulation (EU) 2018/1725;
    3. The Processor fails to comply with a binding decision of a competent court or competent supervisory authority or authorities concerning its obligations under these Clauses, Regulation (EU) 2016/679, and/or Regulation (EU) 2018/1725.
  3. The Processor shall be entitled to terminate the Contract insofar as it concerns the processing of personal data under these Clauses if the Controller insists on compliance with its instructions after receiving notice from the Processor that such instructions infringe applicable legal requirements pursuant to Clause 7.1(b).
  4. Upon termination of the Contract, the Processor shall, at the Controller’s option, delete all personal data processed on behalf of the Controller and certify to the Controller that this has been done, or return all personal data to the Controller and delete existing copies, unless there is an obligation to retain personal data under Union law or the law of the Member States. Until the data is deleted or returned, the Processor shall continue to ensure compliance with these Clauses.

ANNEX I

List of Parties

Controller(s): Dr. Sebastian Kraska, IITR Datenschutz GmbH, [email protected]

Customer: as identified by name and address in the order confirmation for the use of the friendlyway Platform.

Processor: 

Name: SaM Digital Solutions GmbH 

Address: Roemerstrasse 32, 82205 Gilching

Name, position, and contact details of contact person: Anton Dechko, Managing Director

ANNEX II 

Description of Processing 

Categories of data subjects whose personal data are processed:

  • Customers
  • Interested parties
  • Employees
  • Contact persons

Categories of personal data processed:

  • Authentication data
  • Contact details (surname, first name)
  • Communication data (email, phone number)
  • Passport or ID number
  • Working or attendance times of employees, external persons, or visitors

Sensitive data processed (if applicable) and restrictions or safeguards applied that fully take into account the nature of the data and the associated risks, e.g., strict purpose limitation, access restrictions (including access only for employees who have undergone special training), data access logs, restrictions on further transfers, or additional security measures: 

No.

Nature of processing: 

Processing of data in connection with the provision and use of the friendlyway Platform.

Purpose(s) for which the personal data are processed on behalf of the Controller:

The Processor processes personal data for the Controller for the purposes of providing use of the friendlyway Platform and in connection with any maintenance work on the friendlyway Platform.

Duration of processing: 

The duration of data processing corresponds to the term of the Contract for use of the friendlyway Platform.

Where processing is carried out by Sub-processors, the subject matter, nature, and duration of the processing must also be specified:

  • Google Cloud EMEA Limited
    • Subject matter of processing: cloud infrastructure (Managed Kubernetes) 
    • Access to data for the provision of hosting services
    • Place of processing: europe-west3 region (Germany, Frankfurt)
  • SaM Solutions GmbH & Co. KG
    • Subject matter of processing: monitoring and application management of cloud infrastructure 
    • Access to data for the provision of services
    • Place of processing: Germany

ANNEX III 

Technical and organizational measures, including measures to ensure data security

EXPLANATION: 

The technical and organizational measures must be described specifically; a general description is insufficient.

2.1 Physical access control (Art. 32(1)(b) GDPR) 

(Instead of the examples listed below, the contractor must enter the specific data security measures existing at its organization.) 

Unauthorised physical access must be prevented, with the term to be understood spatially. 

Technical or organizational measures for physical access control, in particular, also for legitimizing authorized persons:

  • Keys/key allocation
  • Door security (electronic locks, etc.)
  • Monitoring equipment, e.g., alarm systems, video/TV monitors.

2.2 System access control (Art. 32(1)(b) GDPR) 

Unauthorized use of and unauthorized access to IT systems must be prevented.

  • Password procedures (including special characters, minimum length, and regular password changes)
  • Automatic locking (e.g., password or pause circuit)
  • Creation of one user master record per user
  • Encryption of data carriers.

2.3 Data access control, encryption (Art. 32(1)(b) GDPR) 

Unauthorized activities in IT systems outside granted permissions must be prevented (reading, copying, modifying, or deleting data).

Needs-based design of the authorization concept and access rights, as well as their monitoring and logging:

  • Differentiated permissions (profiles, roles, transactions, and objects)
  • Regular assessment and monitoring of existing permissions
  • Timely updating or deletion
  • Encryption of data.

2.4 Data transfer control (Art. 32(1)(b) GDPR) 

Aspects of transferring personal data must be regulated: electronic transmission, data transport, and transmission control.

Measures during transport, transmission, and transfer or storage on data carriers (manually or electronically), as well as during subsequent verification:

  • Encryption/tunnel connection (VPN = Virtual Private Network)
  • Logging
  • Transport security.

2.5 Data entry control (Art. 32(1)(b) GDPR) 

Traceability or documentation of data management and maintenance must be ensured.

Measures for subsequent verification of whether and by whom data have been entered, modified, or removed (deleted): 

  • Logging and evaluation.

2.6 Order control (Art. 32(1)(d) GDPR) 

Order-compliant commissioned data processing must be ensured.

Measures (technical/organizational) for delimiting responsibilities between client and contractor:

  • Clear contractual design
  • Formalized order placement
  • Control of contract performance

2.7 Availability control and rapid recoverability (Art. 32(1)(b), (c) GDPR) 

The data must be protected against accidental or wilful destruction or loss, and the availability of personal data and access to it must be rapidly restored in the event of a physical or technical incident.

  • Backup procedure
  • Mirroring of hard drives, e.g., RAID procedure
  • Uninterruptible power supply (UPS)
  • Antivirus protection/firewall.

2.8 Separation control (Art. 32(1)(b) GDPR) 

Data collected for different purposes must also be processed separately. 

Measures for separate processing (storage, modification, deletion, transmission) of data for different purposes:

  • Separation of functions/production/test
  • Sandboxing.

2.9 Resilience (Art. 32(1)(b) GDPR) 

It must be ensured that data processing systems are resilient, i.e., sufficiently robust to guarantee functionality even under heavy access or heavy load.

  • Monitoring of resource utilization
  • Redundant system and network components
  • Review and adjustment of capacity requirements for new acquisitions and ongoing operations
  • Special measures against DDoS (CDN, DNS, etc.).

2.10 Pseudonymization (Art. 32(1)(a) GDPR) 

Personal data are processed in such a way that the data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to appropriate technical and organizational measures.

  • Pseudonymization in system copies.

2.11 Encryption (Art. 32(1)(a) GDPR) 

Use of an encryption method corresponding to the state of the art. 

  • Platform for secure file exchange
  • Website encryption, especially in contact fields.

2.12 Procedure for regular review, assessment, and evaluation (Art. 32(1)(d) GDPR; Art. 25(1) GDPR) 

A procedure for the regular review, assessment, and evaluation of the effectiveness of the technical and organizational measures for ensuring the security of processing must be used: 

  • Data protection management
  • Incident response management.

ANNEX IV 

List of Sub-processors

EXPLANATION: 

This annex must be completed in the event of separate authorization of Sub-processors, Clause 7.7(a).

The Controller has authorized the use of the following Sub-processors:

Name: Google Cloud EMEA Limited, 70 Sir John Rogerson’s Quay, Dublin 2, Ireland, region europe-west3 (Germany, Frankfurt) 

Description of processing (including explicit demarcation of responsibilities if multiple sub-processors are authorized): 

See Annex II above.

Name: SaM Solutions GmbH & Co. KG, Roemerstrasse 32, 82205, Gilching, Germany

Description of processing (including explicit demarcation of responsibilities if multiple sub-processors are authorized): 

See Annex II above.