Terms and Conditions
Last updated: August 9, 2022
1. Scope, Subject Matter
1.1. These terms and conditions shall apply to all business activities of Pointly GmbH, Saarbrücker Straße 20, 10405 Berlin, Germany, (hereinafter referred to as “POINTLY”) performed through the platform “pointly.ai”, including subdomains such as “app.pointly.ai”, (also the “website”) and to any contract regarding services for the classification 3D point clouds with the customer.
1.2. POINTLY objects to the application of customer’s general order or purchase terms and conditions unless POINTLY has expressly agreed to their application in text or written form; they shall also not be considered to be applicable if POINTLY – even with knowledge of such terms and conditions – renders services without any further reservation or accepts payments.
2. Exclusion of Consumers
The customer is excluded from accessing, using and ordering POINTLY’s services if the customer will only use POINTLY’s services as a consumer. A consumer is any natural person who enters into a legal transaction for purposes that predominantly are outside their trade, business or profession.
3. Subscription Levels
3.1. POINTLY offers free and paid subscriptions with prices and covered services as specified on POINTLY’s website at the time of contract formation.
3.2. If not otherwise specified, the following conditions apply for the free subscription:
– the service is offered free of charge;
– the initial contract term is one month;
– up to three projects / files may be managed on the platform at any given time;
– a storage limit of 45 million points across all files applies;
– classified data and other data may be viewed within the platform but not downloaded.
– users can try out POINTLY features with the contained cloud called “Demo Cloud by FairFleet”. No other usages of this point clouds are covered by the subscription.
3.3. If not otherwise specified, the following conditions apply for all paid subscriptions:
– the services are available after payment has been received;
– the initial contract term is one year;
– The storage limits for specific account types are specified on POINTLY’s website during contract formation
– The storage limit also reflects the monthly upload limit of an individual account
– Custom conditions might be defined in a separate agreement
3.4. Part of every subscription is access to the online platform as described in section 7. Which services and features are available to the customer is dependent on the individual subscription of the customer.
4. Contract Formation by Email
4.1. A contract may be concluded by individual communication through email.
4.2. The presentation of the services on POINTLY’s website does not constitute a binding offer by POINTLY to conclude a contract. Rather, the presentation is a mere online catalogue, and the customer is given the opportunity to request an offer to purchase the services by email. POINTLY will then send an email confirming the reception of the customer’s request.
4.3. POINTLY may then send a binding offer to the customer, which the customer may accept within 14 days since receiving the offer or within another timeframe specified. The customer may then review and correct the order data. The contract is formed by the customer’s acceptance of said offer.
5. Contract Formation through POINTLY’s website
5.1. POINTLY may offer the formation of a contract through POINTLY’s website. In this case the following applies:
5.2. The presentation of the services on POINTLY’s website does not constitute a binding offer by POINTLY to conclude a contract. Rather, the presentation is a mere online catalogue and the customer is given the opportunity to make a binding offer to purchase the services the customer has selected.
5.3. The customer makes a binding offer by sending the order after going through the ordering process by activating the “buy and pay now” or a similar button. Before submitting the order, the customer will be presented with a review page on which the customer can review and correct the order data. Afterwards the customer will receive an email confirming that POINTLY has received the customer’s order. Within this email or by separate email POINTLY will either accept or reject the customer’s order. The contract shall be concluded upon receipt of such an acceptance or upon receipt of an invoice. The acceptance of the offer is at the discretion of POINTLY.
6. Further Information on E-Commerce
6.1. POINTLY does not save the contract text for the customer. However, the contract text is included in the email with the email communication.
6.2. The contractual language available for the formation of the contract is English.
6.3. No codes of conduct apply.
6.4. The main properties and the price (excluding sales taxes / VAT) as well as any terms and conditions for limited offers are specified within POINTLY’s website and in this document.
7. Product Details for Online Platform, Technical Requirements, Obligations of the Customer
7.1. POINTLY offers the following services within the platform account:
Access to services and features depending on the individual subscription of the customer.
7.2. The customer may incur costs by accessing the platform account according to the customer’s internet access provider. The customer shall bear these costs themselves.
7.3. POINTLY offers the portal according to the terms and conditions in this document and as further specified in the contract with the customer with a technical availability of 95 % per calendar year. The customer shall be entitled to a use of the platform account only within what is normal and average and within the usual technical limits at any given time. POINTLY shall be entitled to restricting access to the portal temporarily for the purpose of technical maintenance, for security purposes, in case of unusual capacity constraints and in case of attacks against the server infrastructure of POINTLY by third parties (e.g. denial of service attacks). POINTLY will take the customer’s interest of accessing the platform into account when restricting access by giving prior notice to the customer to the extent that this is possible and advisable.
7.4. The customer shall be responsible for backing up any relevant data.
8. Product Details for Applying Standard Deep Learning Classifiers, Obligations of the Customer
8.1. POINTLY offers the following services:
– POINTLY shall apply one or more pre-existing, standard deep learning classifiers to the input data of the customer resulting in classified data. It is understood that only these pre-existing standard deep learning classifiers are being used and applied. This implies that the quality and usability of the classified data is highly dependent on the nature and quality of the input data and the currently available standard deep learning classifiers. POINTLY is not obligated to provide classified data in a specific quality; also no specific outcome or usability of the classified data is part of POINTLY’s obligations. Before entering into a paid contract with POINTLY the customer may check the performance of the standard deep learning classifiers on customer’s data and the resulting classified data within the free subscription. Which standard deep learning classifiers are available to the customer is defined on POINTLY’s website during contract formation.
– The customer may store, view and export the classified data based on the subscription level and to an extent and in a format specified on POINTLY’s website during contract formation.
– POINTLY is not obligated to provide any other data than the classified data to the customer. Specifically, POINTLY is not obligated to provide the standard deep learning classifier itself, the respective model or the neural network or any other part of the standard deep learning classifier to the customer or any third party.
8.2. Conditions for POINTLY rendering these services are:
– the customer has successfully registered a platform account,
– in case of a paid subscription: the agreed payment has been received by POINTLY and
– the customer has uploaded the input data in a format specified on POINTLY’s website during contract formation (if not otherwise specified: only LAS and LAZ).
8.3. If one or more of the conditions mentioned in section 8.2 are not met, POINTLY is not obliged to render its services according this section 8; this does not affect the customer’s obligation for payments, unless otherwise stipulated below.
9. Product Details for Applying Custom Deep Learning Classifiers, Obligations of the Customer
9.1. Outside the scope of these terms and conditions and under a separate contract with explicit reference to custom deep learning classifiers, POINTLY may train a custom deep learning classifier exclusively for the customer and make it available exclusively to the customer within the customer’s paid platform account.
9.2. If POINTLY has trained a custom deep learning classifier, POINTLY offers the following additional services through the paid platform account:
– Customer may apply one or more of customer’s custom deep learning classifiers to the input data of the customer resulting in classified data. It is understood that only these custom deep learning classifiers are being used and applied. This implies that the quality and usability of the classified data is highly dependent on the nature and quality of the input data and the custom deep learning classifier. POINTLY is not obligated to provide classified data in a specific quality; also no specific outcome or usability of the classified data is part of POINTLY’s obligations.
– The customer may store, view and export the classified data based on the subscription level as well as the separate contract regarding the custom deep learning classifier and to an extent and in a format specified on POINTLY’s website during contract formation.
– POINTLY is not obligated to provide any other data than the classified data to the customer. Specifically, POINTLY is not obligated to provide the custom deep learning classifier itself, the respective model or the neural network or any other part of the custom deep learning classifier to the customer or any third party.
9.3. Conditions for POINTLY rendering these services are:
– the customer has successfully registered a paid platform account,
– the agreed payment has been received by POINTLY and
– the customer has uploaded the input data in a format specified on POINTLY’s website during contract formation (if not otherwise specified: only LAS and LAZ).
9.4. If one or more of the conditions mentioned in section 9.3 are not met, POINTLY is not obliged to render its services according this section 9; this does not affect the customer’s obligation for payments, unless otherwise stipulated below.
10. General Service Description regarding Classification
10.1. To further clarify the service description regarding the classification of customer’s input data: POINTLY’s service is to apply the predefined or updated deep learning classifier to customer’s input data with the means and within the limits of artificial intelligence. A classification in any other way, e.g. manually, is not part of the service description. POINTLY may not apply other classification methods and the customer may not demand other classification methods. In case of standard deep learning classifiers, it is up to the customer to test the results of this approach on their input data within the free subscription.
10.2. Nothing in these terms and conditions shall be construed as POINTLY granting any usage rights on deep learning classifiers, the respective models or neural networks or any other part of deep learning classifiers, or as POINTLY having to provide such to the customer.
11. POINTLY’s Guarantee: No Further Use of Customer’s Input Data
11.1. POINTLY guarantees that customer’s input data is only used to perform the services according to these terms and conditions and the contract with the customer. Specifically, POINTLY does not and will not use customer’s input data to train or enhance existing or new models, neural networks and/or deep learning classifiers and will not forward the customer’s input data to third parties for such purposes, either. The foregoing shall not apply if otherwise expressly agreed upon with the customer.
11.2. The following is not considered a violation of the aforementioned guarantee: If a data processing initiated by the customer fails or POINTLY gives support to the customer, POINTLY may investigate the cause of the failure or the issue, respectively, and update POINTLY’s software should a misconfiguration or programming error (“bug”) be identified as the cause. This includes examining the customer’s data. E.g.: The customer uploads data, starts preprocessing of data, inferences data or exports data and this fails with an error message and/or a status of “failed” is displayed.
12. Updates to Standard Deep Learning Classifiers
POINTLY may improve, update, alter or otherwise change the standard deep learning classifiers from time to time as long as the main aspects of the standard deep learning classifiers remain usable as before. As a result, applying the same standard deep learning classifier at different times on the same data may yield different results (e.g. later applications may result in more objects of a certain kind being detected while at the same time some previously detected objects remain undetected in later applications). However, POINTLY may not remove a standard deep learning classifier altogether or change a standard deep learning classifier in a way that yields significantly different classified data.
13. Usage of Demo Data
13.1. The customer may use demo data available on the platform as input data to test the deep learning classifiers. However, this demo data is not licensed unless otherwise specified and the customer shall only use the demo data to test the deep learning classifiers.
13.2. If the customer uses such demo data, the customer shall observe any restrictions and obligations specified on the platform regarding the demo data. Specifically, demo data by “FairFleet” is owned by the FairFleet GmbH and “FairFleet GmbH” shall be clearly named as the owner in any use of the demo data.
14. Prices, Taxes, Due Date, Payment Conditions
14.1. All prices are shown within POINTLY’s website and do not include sales tax / VAT.
14.2. All payments shall be due to POINTLY in advance for the next contract term.
14.3. The full payment is due whether or not the customer makes use of the services accessible in the platform account, e.g. applying standard deep learning classifiers and viewing output data.
14.4. Only those claims which are undisputed or confirmed by way of a final legal judgment may be set off against any amount POINTLY may claim under POINTLY’s right to remuneration. The same applies to the exercise of any right of retention. The customer shall be entitled to exercise any right of retention only insofar as it is based on the same contractual relationship.
14.5. Any assignment of claims against POINTLY by the customer shall require our prior approval, which POINTLY shall only refuse for good cause.
15. Methods of Payment
15.1. If not otherwise specified on POINTLY’s website at contract formation, payment may be made through PayPal or bank transfer.
15.2. If the customer chooses payment by PayPal, the customer is forwarded to PayPal within the payment process and has to confirm the payment on PayPal’s website. Payment to POINTLY has been made, when the payment amount is added to POINTLY’s PayPal account balance or the amount has been added to any other of POINTLY’s accounts.
15.3. If the customer chooses payment by bank transfer, the customer shall effect the transfer themselves. The payment has been made, when the payment amount is added to POINTLY’s bank account balance.
16. General Rules for Using POINTLY‘s Services and Infrastructure
The customer shall refrain from any action that will impair, compromise, destroy or otherwise damage the software or hardware of one of POINTLY’s computers or servers, including but not limited to uploading malware, malicious content, sending spam emails or mass notifications and attacking the server infrastructure of POINTLY (e.g. by denial of service attacks).
17. Allowed Content, Usage Rights, Liability, Indemnification
17.1. The customer may upload 3D point data.
17.2. If the customer uploads or generates content and shares this content to specific other customers, POINTLY shall make the shared content available to these other customers within the online platform.
17.3. The customer warrants that any content uploaded is for the sole purpose of using POINTLY’s services according to these terms and conditions. The customer shall not upload content which (1) is not 3D point data to be classified by the deep learning classifiers or data in connection therewith, such as meta data and account details; (2) constitutes a criminal offense (e.g. demagoguery, hate crime, defamation, libel); (3) are pornographic, coarse, obscene or in any other way are obnoxious; (4) are anticonstitutional, extremist, racist, xenophobic; (5) is content from forbidden groups and/or (6) is content violating rights of third parties (e.g. personal rights, copyrights, trademarks, patents, data privacy).
17.4. Content uploaded by customers will not be checked by POINTLY.
17.5. Usage rights:
17.5.1. Customer warrants that they are the owner of usage rights and are able to grant POINTLY usage rights regarding the content to the extent necessary for POINTLY to perform the services under these terms and conditions, i.e. storing, analyzing, translating, converting, enriching, modifying, reproducing and backing up the content and – if the customer expressly chooses to share content – making it available to other customers.
17.5.2. Customer hereby grants to POINTLY a non-exclusive, royalty free, worldwide right to use the content for the purposes mentioned in the section 5.1. This right is limited to the duration of the contract term including an additional one month grace period regarding backups. Also this right is sublicensable but only to POINTLY’s service providers in regard to rendering the services under these terms and conditions to the customer (e.g. hosting providers).
17.5.3. If the customer decides to share content with other customers, customer also warrants that they are the owner of rights to share such content. Also the customer either warrants that the receiving customer is already the owner of usage rights regarding the content or otherwise the owner hereby grants usage rights to the receiving customer. These usage rights include the right to view, modify and download the content and any other right necessary to use the content in accordance with the reason it has been shared for. For the avoidance of doubt: Whether or not the sharing feature is available depends on the customer’s subscription level.
17.6. The customer shall relieve (indemnify) POINTLY of any liability resulting from claims filed by third parties and shall compensate POINTLY for all damages and costs (including reasonable costs for legal defense) that POINTLY may suffer through third parties taking action against POINTLY on the grounds that POINTLY infringes the rights of third parties by using the content according to these terms and conditions. This shall not apply in the absence of fault. The start of the limitation period of POINTLY’s claims under this section starts with the maturity of the third party’s claim against POINTLY.
18. Obligations of the Customer, Unauthorized Use
18.1. For the avoidance of doubt: Customer is the contracting business entity. A natural person may act on behalf of the customer and register a named account for accessing customer’s data. Example: John Doe acting on behalf of Sample Company may register with john.doe@samplecompany.
18.2. All information given by the customer within the registration process shall be true and be given in good faith.
18.3. The account is not transferable.
18.4. Every person acting on behalf of the customer shall only have registered one account at any given time, e.g. the person shall not register multiple times using different email-addresses.
18.5. Every registration for the customer is considered a separate contract.
18.6. The customer shall protect the login credentials of the account (username or email-address and password) against unauthorized use. Login credentials shall not be shared with third parties.
18.7. The customer shall keep the customer’s email address and further contact details updated within the account at all times.
POINTLY may temporarily or permanently suspend the customer’s account, customer’s content or cease providing the customer with all or part of POINTLY’s services at any time if POINTLY has reason to believe (i) that the customer violates POINTLY’s terms and conditions or statutory law in a major way; (ii) that the customer infringes the rights of third parties by using POINTLY’s services; (iii) that the suspension is necessary for the protection of other customers or third parties, e.g. in case there are reasonable doubts regarding usage rights; (iv) that the customer abuses POINTLY’s services for fraudulent purposes or otherwise harmful purposes and/or (v) the customer provides incorrect contact data. The suspension shall be limited to the necessary extent. POINTLY may suspend permanently only if there is an unusually serious violation or a repeated major violation. POINTLY shall inform the customer promptly about the suspension and the reasons in text or written form. The account shall be reactivated once the violation has been ceased or POINTLY’s reasonable believe of a violation has been refuted. The customer’s payment obligation persists despite of a suspension. If the customer believes the account was suspended in error, the customer can file an appeal by sending an email to POINTLY (firstname.lastname@example.org).
20. Warranty and General Liability
20.1. The customer may claim damages only as follows:
20.1.1. For damages based on
– an intentional or grossly negligent breach of duty on part of POINTLY, or
– an intentional or grossly negligent breach of duty by one of POINTLY’s legal representatives, executives or vicarious agents
which are not essential contractual obligations (cardinal obligations) and are not main or ancillary obligations in connection with defects of POINTLY’s services. Essential contractual obligations (cardinal obligations) within the meaning of this section are obligations the fulfilment of which is essential for the proper execution of the contract and on the observance of which the customer regularly relies.
20.1.2. For damages which are based on the intentional or negligent breach of essential contractual obligations (cardinal obligations) on part of POINTLY, on the part of one of POINTLY’s legal representatives, executives or vicarious agents.
20.1.3. Furthermore, POINTLY shall be liable for damages due to negligent or intentional breach of duties in connection with defects in POINTLY’s services (subsequent performance or ancillary duties), and for damages which fall within the scope of protection of a guarantee (assurance) expressly given by POINTLY or a guarantee of quality or durability.
20.2. In the event of a breach of a substantial contractual obligation involving slight negligence, liability shall be limited in amount to the damage typically to be expected and foreseeable for POINTLY at the time of conclusion of the contract if due care is taken.
20.3. Any claim for damages on the part of the customer in case of a breach of a substantial contractual obligation involving slight negligence shall expire one year from the time the limitation period starts to run under the statute of limitations. Excluded from this shall be any damage or injury in relation to life, personal injury or injury to health.
20.4. Any rights to claim for damages against POINTLY arising from mandatory liability at law, for example under the Product Liability Act, as well as in relation to injury to life, body or health shall remain unaffected by the above provisions and shall continue to exist to the statutory extent required within the statutory periods.
20.5. A liability without fault of POINTLY for defects present at the time of the formation of the contract does not apply (e.g. within a lease contract), unless the defect falls within the scope of a guarantee expressly given by POINTLY or the defect has been maliciously concealed by POINTLY.
21. Changes to the Terms and Conditions, Termination
POINTLY may make changes to the terms and conditions from time to time if these changes do not affect major terms and conditions such as the price and the services that POINTLY has to render. If POINTLY makes material changes to the terms and conditions, POINTLY will provide the customer with a notice two months prior to the effective date of such changes by sending a message to the email address associated with the customer’s account. Unless the customer notifies POINTLY within the aforementioned timespan that the customer does not agree to the revised terms and conditions, the customer will be deemed to have agreed to the revised terms and conditions. If any change to the revised terms and conditions is unacceptable to the customer, the customer may terminate the contract and stop using POINTLY’s services as well as delete the account at any time. The customer acknowledges and agrees that if the customer uses the services after the date on which the revised terms and conditions have changed, POINTLY will treat the customer’s use as acceptance of the revised terms and conditions. POINTLY will inform the customer about this effect within the email with the information of the change of terms and conditions.
22. Contract Term, Contract Extension, Termination, Inactivity
22.1. The contract term shall be for an initial period of one month, one quarter or one year as agreed upon within the contract and shall be renewed for further terms of the same length unless either of the parties terminates the contract to the end of the current contract term. Either party may terminate without prior notice to the end of a contract term.
22.2. Notice of termination shall be given in text or written form. Alternatively the customer has the option to terminate the subscription within the platform account if this feature is technically present. POINTLY may give notice of termination by using the customer’s email address as registered in the platform account.
22.3. If the customer has a paid subscription each party can limit the notice of termination to the paid subscription with the effect that the contract will continue as a free subscription with the end of the notice period. If not otherwise specified within the notice of termination the termination shall be considered a complete termination of all subscriptions with the effect that the contract is not continued as a free subscription.
22.4. After notice of termination has been given, the customer will have continued access to the platform account and the subscription services for the remainder of the notice period. All data associated with the platform account, including input data, classified data and possibly custom deep learning classifiers shall be inaccessible for the customer once the termination becomes effective and will be deleted after a grace period of one month during which POINTLY may keep backups. This does not have any effect on any separate agreements between the parties, e.g. regarding the training or storage of custom deep learning classifiers.
22.5. This shall be without prejudice to the right to terminate without notice for due cause.
22.6. POINTLY may give notice by email to customers with free subscriptions if they have been inactive for twelve months or more. Not logging in using the account credentials is construed as inactivity. This notice shall inform about the inactivity and the account closure within two months of further inactivity and is to be construed as notice of termination if the customer remains inactive. If the customer logs in during this notice period, the account will remain activated and the termination is averted. If the customer does not log in, the contract is terminated after the two month period and POINTLY shall delete all data after a grace period of one more month during which POINTLY may keep backups. During the two months period POINTLY shall send a reminder of impending termination due to inactivity.
23. Data Protection
The customer may provide 3D point data to POINTLY. If this data contains personal data, the customer shall inform POINTLY beforehand and undertake measures to conform to data privacy laws, e.g. provide consents or enter into a data privacy addendum.
24. Severability Clause, Applicable Law, Place of Jurisdiction
24.1. If any provision of these terms and conditions or any provision within contracts between POINTLY and the customer is or becomes invalid, this shall not affect the effectiveness of any other provision.
24.2. The law of Germany shall apply to the contractual and any other legal relationship between POINTLY and the customer to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
24.3. The place of performance and exclusive place of jurisdiction for all disputes arising between the parties from the contractual relationship shall Berlin, insofar as the customer is a merchant, a legal entity under public law or a special fund under public law or the customer does not have a general place of jurisdiction in the Federal Republic of Germany or relocates its place of jurisdiction abroad. Notwithstanding the above, POINTLY shall be entitled to commence legal proceedings in relation to the assertion of any claim against the customer at its general place of jurisdiction.