§ 1 In General

(1) These General Terms and Conditions shall apply exclusively and only to a natural person or legal entity or partnership with legal capacity that is acting in the exercise of its commercial or independent professional activity when concluding the contract (entrepreneur). The terms and conditions of the provider shall apply exclusively; terms and conditions of the User that conflict with or deviate from these terms and conditions shall not be recognized unless the provider has expressly agreed to their validity in writing.

(2) The user shall be notified of any changes to these terms and conditions in writing, by fax or e-mail. If the user does not object to an amendment within a period of four weeks after receipt of the notification, the new terms and conditions shall be deemed accepted by the user. However, if the user objects after the preceding sentence, the contract shall continue to apply unchanged under the previous terms and conditions. In the event of an amendment to the Terms and Conditions, the User shall be informed separately of the right to object and the legal consequences of his refusal.

§ 2 Subject matter and Scope

(1) Subject matter of these Software as a Service (SaaS) Terms and Conditions is the granting of the right of online use, via the Internet, of software as well as the storage of customer data by Kleffmann Digital RS, Mühlenstraße 3 + 5, 59348 Lüdinghausen, Germany. The provider offers registered users the use of the web portal MyDataPlant (https://portal.mydataplant.com). Via this portal, Kleffmann Digital RS provides users with a digital service that supports land management. The user can choose between different modules, the functionalities of which are described at www.mydataplant.com. The Provider shall make the contractual modules available to the User for temporary use by means of remote access via the Internet. For this purpose, the Provider operates the Platform on a server which the user can access via an Internet connection. The functional scope of the individual applications is described under the respective product.

(2) The Terms of Use cover:

• access to MyDataPlant and online use of the database and services or indi-vidual parts there of;
• the reproduction of individual database contents by the user by way of download or printout;
• the use of the provided software for the input of own data by the user, the creation of own tables and cross evaluations as well as the storage of his application data.

(3) The Provider is entitled to change the Service (database contents, structure of the database and user interface, etc.) if and to the extent that the fulfilment of the purpose of the contract concluded with the User is not significantly compromised thereby. The Provider shall inform the User about the changes.

(4) The provider may provide the User with instructions for use in the form of a download under the heading “Terms of Use”. The user is obliged to follow the instructions given there on accessing the database, searching the database, and downloading content.

§ 3 Registration

(1) The use of MyDataPlant requires the registration of the customer as a user. The user is obliged to provide the data requested during registration correctly and completely.

(2) By registering the user agrees to these terms of use. Through this confirmation, Kleffmann Digital RS and the user initially enter into a temporary, free-of-charge contract of use. Registration alone does not entail any financial obligations for the user. Costs arise for the user only after booking one of the modules offered by MyDataPlant. The user can cancel his entry at any time under “Subscription Management”, insofar as he has not subscribed to individual applications.

(3) After the data has been entered, Kleffmann Digital RS performs an automated plausibility check and sends an e-mail with access data to the e-mail address provided by the User. With the sending of this e-mail, the user account is activated and access to it is enabled by the user.

(4) The user must keep his access code and password protected from access by third parties. Actions and legal transactions carried out via the user account of a user are attributed to the user and the user is liable for them. This does not apply if the user can prove that he was not responsible for the misuse of his user data. If there are indications that the access data have become known to third parties, Kleffmann Digital RS must be informed immediately. In the event of a breach of the aforementioned obligations of the user, Kleffmann Digital RS is entitled to block access to the user account without prior notice and to terminate the existing user contract with the user and the booked modules extraordinarily.

(5) If incorrect password entries are registered three times in succession under an access ID, the connection is interrupted.

§ 4 Contracting

(1) The modules that can be booked by the User and their functionalities are described in their current form on the MyDataPlant website. The presentation of the individual modules/applications on the web portal does not constitute a legally binding offer to conclude a contract, but an invitation to order.

(2) During the ordering process, the user first places the desired modules in the shopping cart by clicking on the corresponding button. There he can remove the selected modules in whole or in part at any time. Once the user has placed individual applications in the shopping cart, clicking on the “Next” button takes him to a page where he can enter his data and then select the shipping and payment method. He can correct his entries (e.g. for the payment method, the data or the desired number of items) by clicking on “Change” or “Change address” in the respective field. If the user wants to cancel the ordering process completely, he can also simply close his browser window or click on the “Cancel” button. Otherwise, after clicking the confirmation button “Send order”, the declaration is binding within the meaning of § 4 para. 3 of these GTC.

(3) By clicking the “Submit Order” button in the last step of the ordering process, the user submits a binding offer to book the single application. Immediately after sending the order, the user receives an order confirmation. This order confirmation represents the acceptance of the offer by the provider. In this case, the contract of use consists of the order confirmation corresponding to the user’s order as well as these General Terms of Use.
The User can use the modules booked by him for the land areas selected by him, whereby billing shall take place in accordance with § 10. For the use of the mod-ules it is necessary that the user enters his land areas to be managed in the soft-ware.

(4) The relevant language for the conclusion of the contract is exclusively Ger-man. Translations into other languages serve only to inform the user. In case of discrepancies between the German text and the translation, the German text shall prevail.

(5) The processing of the order and the transmission of all information required in connection with the conclusion of the contract is carried out by e-mail, in part automatically. The user must therefore ensure that the e-mail address provided to Kleffmann Digital RS is correct, that the receipt of e-mails is technically guar-anteed and that it is not prevented by SPAM filters. The terms of contract are not stored by the provider.

§ 5 Availability

(1) Kleffmann Digital RS strives to ensure that the usability of MyDataPlant is as uninterrupted as possible. However, due to technical problems (e.g. interruption of the power supply, hardware and software errors, technical problems with data transmission), but also due to maintenance work and updates, temporary restrictions or interruptions of access may occur.

The contents accessible via MyDataPlant are accordingly provided with an availability of 95%, based on the calendar year. This does not constitute a guarantee or assurance by Kleffmann Digital RS. Claims of the user due to a shortfall in availability are excluded.

The downtimes associated with software updates and maintenance work can be freely selected by the provider according to the respective technical and organizational requirements; however, the provider shall endeavour to select times during which the disruptions for the User are as low as possible. The transfer point is the router exit of the provider’s data center.

(2) The following periods shall not be included in the calculation of the total downtime:

• Periods of unavailability due to Internet outages or other circumstances beyond Kleffmann Digital RS’s control, including, but not limited to, force majeure.
• Downtime that is the responsibility of the User; this includes, for example, periods of unavailability that are due to the User’s technical requirements for accessing the Applications not being available or being temporarily unavailable, such as disruptions to the User’s own hardware, telecommunications or delivery service or of Internet service provider, the availability of email domain servers or of mobile push notification provider.
  
  

§ 6 Data backups

(1) All user data, including the marked land areas created by the user, will be backed up daily using standard backup mechanisms. A claim to archiving of commercial, tax or other legally relevant information does not arise from the data backup. The user is responsible for the storage of relevant documents and data. Liability on the part of Kleffmann Digital RS for any loss of data is expressly excluded.

§ 7 Updates, Adjustments and Storage Space

(1) The technical basis of the services offered under MyDataPlant for optimizing land management are various databases. Kleffmann Digital RS will update the databases on the basis of various sources, in particular on the basis of satellite-based multispectral data.

(2) If and to the extent that the provision of updates or a new version leads to a change in the functionalities of the database, database contents, the structure of the database, the user interface or associated software, work processes of the User supported by the software and/or restrictions in the usability of previously generated data or a discontinuation of applications, Kleffmann Digital RS will notify the User of this in text form with reasonable advance notice.

(3) If an essential function is discontinued or significantly extended without replacement, Kleffmann Digital RS shall recalculate the price for the remaining software function. If the User does not object to the change in writing within a period of two weeks from receipt of the change notification, the change shall become part of the contract. Whenever changes are announced, Kleffmann Digital RS will inform the user of the aforementioned deadline and the legal consequences of its expiry if the user does not exercise the option to object.

(4) The provider shall continuously develop the applications and the MyDataPlant. Updates of the core product are generally made available to the User free of charge. However, in the event of significant updates and extensions of the functional scope (e.g. addition of modules) of the MyDataPlant or the applications, the provider shall be entitled to classify these as a new product or upgrade and to make them available to the User for an additional fee. If the provider provides such upgrades and extensions free of charge, the User shall have no legal claim to their provision. The provider shall inform the User about the discontinuation of the free services.

(5) From the first use of the database by the User for the User’s application data, the provider shall maintain storage capacity in the size required for the purpose of the database.

(6) The User’s application data shall be backed up on the server regularly, at least once per calendar day. However, a claim to archiving of commercial, tax or other legally relevant information does not arise from this. The user is solely responsible for the storage of relevant documents and data.

§ 8 Technical Requirements

(1) For registration and use, the user requires an end device with a suitable operating system (Windows, iOS, Linux), a current version of a web browser and an Internet connection that allows undisturbed access to the database and download of the content. The user is obliged to procure and maintain the hardware and connections to public telecommunications networks that he requires.

(2) The User is solely responsible for the creation and maintenance of the necessary technical requirements within the User’s area of responsibility for the contractual use of MyDataPlant. The User bears the costs for setting up the online connection as well as the maintenance costs on the User’s side. Kleffmann Digital RS accepts no liability for disruptions in data transmission caused by technical errors or configuration problems on the part of the user, nor for the security and continuity of data communication conducted via third-party communication networks.

(3) The user is responsible for the hardware and software he uses and for the communication channels he uses. The obligation to pay the usage fee shall remain unaffected by a failure of the hardware and software used by the user.

(4) The usability of the functions of the database as well as the necessary control of compliance with permissible usage limits require that the end devices of the user accept the cookies transmitted by the system of the provider and that these are not changed during the session and, if possible, are not deleted. Kleffmann Digital RS only uses so-called session cookies (also known as temporary cookies) on the website https://portal.mydataplant.com that are technically absolutely necessary. Session cookies are only temporarily stored for the duration of the use of the website. The purpose of these cookies is to identify the customer’s computer during a visit of the website and to be able to determine the end of the visit. In order to use the full functionality of the website, it is necessary to allow the session cookies. The session cookies are deleted as soon as the customer leaves the website or ends the browser session.

The usability of MyDataPlant requires that the terminal device used by the Client accepts the cookies transmitted by the portal and that they are neither modified nor deleted during the ongoing access to the MyDataPlant portal. The Customer undertakes to ensure compliance with the aforementioned cooperation obligations (in particular through appropriate settings in his browser). If the user does not comply with this obligation for reasons for which he is responsible, the pro-vider is not responsible for any resulting functional restrictions.

§ 9 Right of Use, Copyright, Copy Protection

(1) The User may use the services provided via MyDataPlant exclusively within the scope of these Terms of Use. Any further use is only permitted if Kleffmann Digital RS has given its prior consent to such use at least in text form.

All exclusive rights within the meaning of the German Copyright Act (UrhG), in particular all exclusive rights of the database producer within the meaning of §§ 4 para. 2, 87a ff. UrhG to the databases accessible via MyDataPlant, the data contained therein and any data extracts are held by Kleffmann Digital RS. The user acknowledges that the data made available are database works produced by Kleffmann Digital RS within the meaning of §§ 4 para. 2, 87a para. 1 UrhG (Ger-man law). The user undertakes to refrain from all infringements of database rights. The use of MyDataPlant does not entail the acquisition of rights to the content that can be accessed via MyDataPlant, which goes beyond the granting of rights of use to this data in accordance with this clause.

(2) Kleffmann Digital RS grants the User a non-exclusive and non-transferable right of use to the content that can be accessed via MyDataPlant, limited in time to the term of a subscription. The User may only use MyDataPlant for the purposes of its own operations or those of affiliated companies within the meaning of Section 15 (1) of the German Stock Corporation Act (AktG). Otherwise, all rights to the contents remain with Kleffmann Digital RS. In particular, the user is not entitled to modify the content, to reproduce it or make it available to third parties, to forward it to third parties, to sell it, or to use it commercially in any other way. Copyright notices and brand names may not be changed or removed by the user.

Kleffmann Digital RS reserves the right to check the scope of use of MyDataPlant on a random basis and to permanently block the User’s access in the event of violations of these Terms of Use. Kleffmann Digital RS is also entitled to take technical measures, including access blocks, to protect against unauthorized use. The user may not use any devices or other means which serve to circumvent the technical measures provided. In particular, he may not use web crawlers, spider programs, meta search engines or comparable technologies that automatically retrieve content from the database. Any further rights and claims of Kleffmann Digital RS, in particular the right to extraordinary termination and the assertion of claims for damages, shall remain unaffected.

(3) The user shall indemnify the provider against all claims asserted by third parties against the provider due to the infringement of their rights or due to the infringement of rights based on content created or transmitted by the user using the applications. The User shall also bear the associated costs for the provider’s legal defense, including court costs and attorney’s fees. This indemnification shall not apply if the user is not responsible for the infringement. The assertion of further rights and claims of the provider, in particular the right to extraordinary termination for cause and claims for damages, shall remain unaffected.

§ 10 Fee and Terms of Payment

(1) Registration for the use of the database on the web portal is free of charge.

(2) The user can acquire a license for the applications/modules provided via the portal at the price stated there. Use of the portal’s basic applications (biomass, fertilization, seeds, plant protection) is free of charge for a period of two weeks.

(3) The license fee is due immediately with the order. The available payment options are displayed under a correspondingly marked button/icon on our website or in the respective offer. Currently, payment can be made by invoice or payrex (Visa, Mastercard). If payment is not made by the user within four weeks at the latest after Kleffmann Digital RS has sent the invoice, Kleffmann Digital RS is entitled to block access to the services until the invoice is settled by the user. All payment-related issues must be clarified directly with the payment service Kleffmann Digital RS used. The invoice data is stored for billing purposes. However, this does not result in a claim to archiving of the data. The user is responsible for the storage of documents relevant to the authorities.

§ 11 Acquisition of user data, user database

(1) The provider is entitled to collect data on the following performance-related processes: Type of use, transmission content, transmission duration, personal data to identify the user. According to these rules, the provider may use personal data in particular if this is necessary for the establishment and arrangement of the contractual relationship (contractual basis) or for the fulfilment of the services or billing (usage data). Contractual basis is the full name of the user, his full address, e-mail address. Usage data are the features for identifying the user, information about the beginning and end as well as the scope of the respective use and information about the individual applications used by the user.

(2) The provider shall collect and use this data in compliance with the principles of data protection law.

(3) The provider is entitled to use and process usage data of Kleffmann Digital RS products anonymously also for the purpose of product improvement or for statistical purposes, such as market research. In this context, Kleffmann Digital RS is obliged to ensure that only anonymized usage data is used and that no master data of the customer is used, unless this is required for billing purposes or for the provision of advice/service/support to the end customer.

The focus for future developments in the field of precision farming is not only on satellite data, but also on the extended use of these satellite data. For this purpose, utilization data and their processing, for example with AI-based algorithms, are indispensable. For example, it could be possible to correlate certain satellite data with the humus content in the soil or expected future yields. In order to correctly select and interpret the satellite data, calibration and training data for the aforementioned algorithms are required. All these so-called “ground truth” data are anonymized by being stored in a separate database to the user data. The link between user and usage data is only temporary and only occurs when the user logs in by entering his password. Access to the customer’s usage data by Kleffmann Digital RS therefore takes place exclusively without reference to the customer’s master data.

Kleffmann Digital RS’s right to use this usage data in accordance with the above rules includes the right to pass it on to third parties with whom Kleffmann Digital RS cooperates in connection with the provision of services.

§ 12 Warranty and Liability

(1) The provider shall remedy technical defects of the database system within a reasonable period of time. The provider’s responsibility extends only to the transfer point of the systems operated by it to the Internet, but not to the User’s systems and data transmission lines beyond the transfer point. The warranty for defects existing at the time of the conclusion of the contract is excluded. Insignificant impairments of usability do not entitle the user to a reduction in price or to claim damages.

(2) MyDataPlant and the modules that can be booked in this system represent a decision support system for the user with regard to the economic management and monitoring of land areas. The recommendations generated by this system, for example on irrigation, fertilization or seed application, are intended to support the user’s decisions. Each of these recommendations is to be checked by the respective user independently with regard to the concrete use situation, the land areas, weather conditions and other environmental conditions, which can also influence a decision. Kleffmann Digital RS is not liable for the content of the recommendations made with MyDataPlant being correct and leading to the best possible result. Kleffmann Digital RS assumes no responsibility for the cultivation decisions of users. The recommendations are intended to facilitate the work of the user, but do not include any guarantee for optimal yields when applied. Liability claims against the provider, which are caused by incorrect handling, are excluded in principle, unless there is evidence of intentional or grossly negligent fault on the part of the provider.

(3) The services provided via MyDataPlant are continuously checked by Kleffmann Digital RS. Nevertheless, Kleffmann Digital RS does not assume any warranty for the completeness, correctness and up-to-dateness. Any liability of Kleffmann Digital RS in this context is excluded in accordance with the following regulations.

(4) Kleffmann Digital RS is not liable for damages of any kind resulting from circumvention of password protection or technical protection devices by way of “hacking”. The provider and the User mutually agree that a binding assurance of the security of these protective devices is not possible due to the various possibilities of unauthorized third-party interventions on and via the Internet. In all other respects, the provider shall be liable without limitation for intent and gross negligence. For simple negligence, however, only in the case of breach of essential contractual obligations, the breach of which endangers the achievement of the purpose of the contract, or in the case of injury to life, limb, or health. For the simple negligent breach of an essential contractual obligation, the provider is liable at most in the amount of the typically foreseeable damage.

(5) The user is obliged to back up his data stored in the system with the functionalities offered there, i.e. to transfer it to a backup medium used locally by him (e.g. USB stick). Kleffmann Digital RS’s liability for data loss is limited to the typical recovery effort that would have occurred even if data had been backed up regularly.

§ 13 Term of the Contract

(1) The contract for access to MyDataPlant is initially concluded as a test period for a period of two weeks from activation of the user account. If the User does not book a chargeable module by the end of this period, the user contract ends without the need for termination by the User or Kleffmann Digital RS. In this case, Kleffmann Digital RS is entitled to delete the user account.

(2) The period of use of the respective module (term) is one year from the date of booking unless a different term is specified in the module description. The period of use shall end automatically at the end of the term of the respective module without the need for termination. If the module is not extended, the usage option of the module therefore ends at the end of the last day after the expiry of 365 days. There will be no automatic extension. If the user wishes to extend the term, this must be actively initiated by the user via MyDataPlant as a new order.

(3) The areas created by the user in the system remain in his user account even after expiry of the term of the module. If the user books a previously booked module or another module from the MyDataPlant offer at a later time, this can be used for previously created areas. It is not necessary to create new plots. Sur-faces of the user will be deleted from the system only if

• either the user deletes his user account himself or
• Kleffmann Digital RS terminates the contract with the user or
• the user has not ordered and/or used any chargeable modules within 24 calendar months of his last order and no changes have been made during this period with regard to the areas created by him in the system. In this case, Kleffmann Digital RS is entitled to delete the user account.

A guarantee or warranty of the indefinite storage of the areas created by the user is not associated with this service, which is why the user is obligated to independently back up his data with the functionalities offered in the software before the end of the term of a module, i.e. to transfer the data stored in the system for the user to a local backup medium used by him. The above provisions shall not affect the right of the User or Kleffmann Digital RS to terminate the contract extraordinarily for good cause.

§ 14 Applicable Law

The contract shall be governed exclusively by German law under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and any conflict of laws provisions of German law that would lead to the application of a foreign law.

§ 15 Jurisdiction agreement

If the User is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction shall be the courts having jurisdiction for the registered office of the provider in Lüdinghausen.

§ 16 Final Provisions

(1) Amendments to these Terms of Use or declarations in accordance with these Terms of Use to the other party require a written declaration or an e-mail.

(2) Should any provision of these Terms of Use be invalid in whole or in part, this shall not affect the legal validity of the remaining provisions.