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AI Addendum

smartNsales AG, version 0.2

This AI Addendum (“AI Addendum”) forms part of the Agreement between smartNsales AG (“smartNsales”) and the Customer and governs the Customer’s use of artificial intelligence and machine learning functionality made available as part of the Services.

Capitalised terms not defined in this AI Addendum shall have the meanings given to them in the Agreement.

1. Scope

1.1 Certain Services provided by smartNsales incorporate artificial intelligence, machine learning, large language models or comparable technologies (“AI Features”).

1.2 AI Features may include, depending on the Services made available to the Customer, document analysis and information extraction, classification and structuring, search and retrieval, summarisation, commercial analysis, recommendations, meeting preparation, forecasting, generation of reports or other content, and conversational AI functionality.

1.3 AI Features may be developed by smartNsales or incorporate artificial intelligence models, infrastructure or technologies provided by third parties.

1.4 In the event of a conflict between this AI Addendum and another part of the Agreement, this AI Addendum shall prevail solely with respect to matters specifically concerning AI Features. The DPA shall prevail with respect to matters specifically concerning the Processing of Personal Data.

2. Customer Inputs

2.1 The Customer may submit or make information available to AI Features through uploads, Connected Systems, prompts, instructions or other functionality (“Inputs”).

2.2 Inputs constitute Customer Data and remain subject to the ownership, confidentiality, security and data protection provisions of the Agreement.

2.3 As between the Parties, the Customer retains all right, title and interest in and to its Inputs. Processing of Inputs through an AI Feature does not transfer ownership of such Inputs to smartNsales.

2.4 The Customer is responsible for ensuring that it has the rights, permissions and lawful bases necessary to submit Inputs to the Services and permit their Processing in accordance with the Agreement.

3. Use of Customer Data by AI Features

3.1 smartNsales may Process Customer Data through AI Features to the extent reasonably necessary to:

  1. provide functionality requested by the Customer or its Authorised Users;
  2. analyse, classify, structure, retrieve or summarise Customer Data;
  3. generate AI Outputs;
  4. provide recommendations, insights and decision support;
  5. maintain, secure, monitor and support AI Features; and
  6. otherwise perform smartNsales’ obligations under the Agreement.

3.2 Customer Data processed through AI Features remains Customer Data and does not become the property of smartNsales by virtue of such Processing.

3.3 smartNsales shall not sell Customer Data submitted to AI Features or use such Customer Data for advertising purposes.

3.4 smartNsales shall not make Customer Data available to other smartNsales customers.

3.5 smartNsales shall not use Customer Confidential Information to train, develop, improve or fine-tune general-purpose artificial intelligence or machine learning models for the benefit of unrelated customers or third parties.

3.6 Customer Data may be used for Customer-specific processing, retrieval, configuration, adaptation or functionality solely for the benefit of the relevant Customer where necessary to provide the Services and otherwise permitted under the Agreement.

4. Development and Improvement of AI Features

4.1 smartNsales may use Aggregated Data, de-identified information, Usage Data and Feedback to operate, evaluate, develop and improve the Services and AI Features.

4.2 Such use shall not identify the Customer or permit the reasonable reconstruction of Customer Confidential Information.

4.3 Nothing in this Section grants smartNsales a general right to use identifiable Customer Confidential Information, including confidential agreements, pricing, trade terms, commercial plans, sales performance, trade investments, forecasts, margins, customer relationships or negotiation information, to train general-purpose artificial intelligence models for the benefit of unrelated customers or third parties.

4.4 smartNsales may independently develop and improve general functionality, methodologies, workflows, prompts, models, algorithms and technical processes based upon knowledge, skills and experience acquired in the ordinary course of providing the Services, provided that such development does not disclose or permit the reasonable reconstruction of Customer Confidential Information.

5. Third-Party AI Providers

5.1 smartNsales may engage third-party artificial intelligence model, infrastructure or technology providers in connection with the provision of AI Features (“Third-Party AI Providers”).

5.2 Where a Third-Party AI Provider Processes Customer Personal Data on behalf of smartNsales, such provider shall be treated as a Subprocessor in accordance with the DPA and applicable Data Protection Law. smartNsales shall maintain appropriate written data processing terms with such provider where required by applicable Data Protection Law.

5.3 smartNsales shall require Third-Party AI Providers that Process Customer Data on its behalf, as applicable, to:

  1. Process Customer Data only to the extent necessary to provide the relevant services to smartNsales and in accordance with applicable contractual instructions;
  2. maintain appropriate confidentiality, security and data protection safeguards;
  3. not use Customer Data to train, develop, improve or fine-tune general-purpose artificial intelligence or machine learning models for the provider’s own purposes or for the benefit of unrelated third parties;
  4. not sell Customer Data or use Customer Data for advertising or other independent commercial purposes; and
  5. comply with applicable Data Protection Law.

5.4 smartNsales shall configure Third-Party AI Providers to operate without retention of Customer Data where zero-data-retention functionality is contractually and technically available and reasonably compatible with the relevant AI Feature.

Where zero-data-retention functionality is not available or cannot reasonably be used for a particular AI Feature, smartNsales shall seek to minimise the amount and duration of Customer Data retained by the relevant Third-Party AI Provider and limit such retention to what is reasonably necessary for the provision, security and operation of the relevant service.

5.5 smartNsales shall apply data minimisation principles when transmitting Customer Data to Third-Party AI Providers and shall limit transmitted Customer Data to information reasonably necessary to provide the relevant AI Feature.

5.6 Customer Data transmitted to Third-Party AI Providers shall not be made available to other smartNsales customers.

5.7 smartNsales shall maintain information concerning material Third-Party AI Providers used to Process Customer Data and make such information available through its Subprocessor list, Trust Center or other appropriate documentation.

5.8 smartNsales may replace or add Third-Party AI Providers in accordance with the Agreement and, where the relevant provider Processes Customer Personal Data, the Subprocessor provisions of the DPA.

6. AI Outputs

6.1 Content generated, produced or materially transformed through AI Features is referred to as “AI Outputs”.

6.2 Subject to applicable law, third-party rights and the Agreement, the Customer may use AI Outputs generated specifically for the Customer for its internal business purposes.

6.3 To the extent smartNsales acquires any transferable rights specifically in an AI Output generated from Customer Inputs for the Customer, smartNsales grants the Customer a worldwide, royalty-free right to use such AI Output for its internal business purposes.

6.4 AI Outputs may not be unique. Due to the nature of artificial intelligence technologies, the same or similar outputs may be generated for different users or customers. No exclusivity is granted in respect of ideas, concepts, recommendations or content independently generated for another customer.

6.5 No rights in smartNsales’ underlying software, models, algorithms, prompts, system instructions, methodologies, workflows, data structures, Market Intelligence or other Intellectual Property Rights are transferred to the Customer by virtue of the generation or use of AI Outputs.

7. Accuracy and Human Oversight

7.1 The Customer acknowledges that AI Features use probabilistic technologies and that AI Outputs may contain inaccuracies, errors, omissions, incomplete information or information that is no longer current.

7.2 AI Features and AI Outputs are intended to assist and support human decision-making and are not a substitute for appropriate professional or commercial judgement.

7.3 The Customer shall exercise appropriate human oversight and shall reasonably review and validate AI Outputs before relying upon them for material commercial, financial, contractual or operational decisions.

7.4 In particular, the Customer remains responsible for decisions concerning pricing and commercial terms, customer and retailer negotiations, trade investments, promotional activities, budgets and forecasts, contractual commitments and commercial strategy.

7.5 smartNsales does not warrant that an AI Output will be accurate, complete, unique or suitable for a particular commercial purpose.

8. Automated Decision-Making

8.1 Unless expressly identified otherwise, AI Features are designed as decision-support tools and are not intended to make legally binding decisions on behalf of the Customer without human involvement.

8.2 The Customer is responsible for determining whether its particular use of AI Features constitutes automated decision-making subject to specific legal requirements and for implementing any human review, notices or safeguards required by applicable law.

8.3 The Customer shall not use AI Features to make decisions producing legal or similarly significant effects concerning natural persons without appropriate human oversight where such oversight is required by applicable law.

9. Customer Responsibilities

9.1 The Customer and its Authorised Users shall use AI Features in accordance with applicable law and the Agreement.

9.2 The Customer shall not knowingly use AI Features:

  1. for unlawful purposes;
  2. to infringe third-party Intellectual Property Rights, privacy rights or other rights;
  3. to circumvent security or access controls;
  4. to extract or attempt to discover non-public system prompts, models, algorithms or technical safeguards;
  5. to develop or train a competing artificial intelligence product using smartNsales proprietary technology or non-public information; or
  6. for prohibited or unlawful automated decision-making.

9.3 The Customer remains responsible for determining whether AI Outputs are appropriate for its intended use.

10. Intellectual Property

10.1 smartNsales and its licensors retain all right, title and interest, including Intellectual Property Rights, in and to the AI Features and underlying technology, including:

  1. software;
  2. models and model configurations;
  3. prompts and system instructions;
  4. orchestration and agent workflows;
  5. retrieval and reasoning methodologies;
  6. algorithms and evaluation systems;
  7. data structures;
  8. proprietary datasets and Market Intelligence; and
  9. improvements and derivative developments thereof.

10.2 Nothing in this AI Addendum transfers ownership of Customer Data to smartNsales.

10.3 Nothing in this AI Addendum restricts smartNsales from independently developing or providing functionality, recommendations, methodologies or outputs similar to those provided to the Customer, provided that smartNsales does not use or disclose Customer Confidential Information except as permitted by the Agreement.

11. Changes to AI Technology

11.1 smartNsales may modify, replace or update the models, technologies, infrastructure and Third-Party AI Providers used to provide AI Features.

11.2 Such changes may be made for reasons including performance, functionality, security, availability, legal compliance, cost efficiency or technological development.

11.3 smartNsales shall not materially reduce the contractual protections applicable to Customer Data solely as a result of changing an underlying AI technology or provider.

11.4 Where a change results in the appointment of a new Subprocessor Processing Customer Personal Data, the Subprocessor provisions of the DPA shall apply.

12. Beta AI Features

12.1 AI Features designated as beta, preview, early access, experimental or similar constitute Beta Services and are subject to the provisions concerning Beta Services in the GTC.

12.2 Such AI Features may be modified, suspended or discontinued and may exhibit greater variability, errors or limitations than generally available functionality.

13. Compliance with Applicable AI Law

13.1 Each Party shall comply with legal obligations applicable to it in connection with the provision or use of AI Features.

13.2 smartNsales shall maintain such measures concerning transparency, human oversight, data governance and AI risk management as are required of smartNsales under applicable law having regard to the nature and classification of the relevant AI Feature.

13.3 The Customer remains responsible for its particular use and deployment of AI Features and AI Outputs, including legal obligations arising from the Customer’s industry, use case or decisions made using AI Outputs.

13.4 Where reasonably necessary to address changes in applicable AI law or regulatory requirements, smartNsales may modify AI Features, applicable safeguards or this AI Addendum in accordance with the Agreement.

14. Liability

14.1 The limitations and exclusions of liability set out in the Agreement apply to AI Features and AI Outputs.

14.2 This AI Addendum does not create a separate or additional liability cap. Any liability arising under this AI Addendum shall count towards the aggregate liability cap applicable under the Agreement.

14.3 To the maximum extent permitted by applicable law, smartNsales shall not be liable for decisions taken by the Customer solely in reliance upon an AI Output without appropriate human review where such review would reasonably have identified the relevant error or limitation.

14.4 Nothing in this AI Addendum excludes or limits liability to the extent such liability cannot lawfully be excluded or limited.

15. Term and Relationship with the Agreement

15.1 This AI Addendum applies for so long as the Customer is entitled to use AI Features under the Agreement.

15.2 Termination or expiration of the Agreement or of the Customer’s right to use AI Features shall terminate this AI Addendum with respect to future use.

15.3 Provisions concerning Customer Data, Confidentiality, Intellectual Property Rights, AI Outputs and liability shall survive to the extent their nature requires.

15.4 Except as expressly modified by this AI Addendum, the Agreement remains unchanged and in full force and effect.

15.5 The governing law and jurisdiction specified in the Agreement shall apply to this AI Addendum.