SMARTBRIX GmbH

§ 1 Validity and conclusion of contract

(1) These General Terms and Conditions form the basis of all contracts for deliveries and services of the product area ‘SMARTBRIX “ (www.SMARTBRIX .io) of SMARTBRIX GmbH - hereinafter referred to as ”SMARTBRIX ’. Contracts between the Customer and SMARTBRIX are concluded after a written order or order in the online portal of the licenced software by the Customer.

(2) The SMARTBRIX software is offered hosted and can be accessed remotely by the Customer. For the duration of this agreement, SMARTBRIX grants the Customer a non-exclusive, non-transferable licence to use (execute, modify, execute after modification) the SMARTBRIX software in accordance with § 11 SMARTBRIX License v1.0.

(3) SMARTBRIX GmbH also provides services in the area of customising the SMARTBRIX software, in the area of programming individual software for the Customer and in the area of training and education.

§ 2 Transfer of the software

(1) With regard to the provision of software, SMARTBRIX grants the Customer the right to use the software for the duration of the contract in accordance with the conditions of these GTC and the individual offer. SMARTBRIX shall provide the Customer with updates (changes and bug fixes) and upgrades (new functionalities) for the core functionalities of the licensed software free of charge during the term of the contract. Unless otherwise agreed, the transfer of use of the SMARTBRIX software is revocable for an indefinite period.

(2) Unless otherwise agreed, SMARTBRIX shall provide hosting. In detail, hosting includes the provision, maintenance and repair of the server hardware by SMARTBRIX or a third party commissioned by SMARTBRIX, the assumption of the operating costs of the server hardware, the installation of updates and upgrades of the licensed software - provided that customisations made especially for the Customer do not make the installation more difficult -, the installation of updates and upgrades of the software, the creation of backup copies of the databases and the provision of storage space.

(3) The client is aware that 100% availability of the software is not possible and that there may be interruptions due to malfunctions and maintenance work, for example. Should the availability or features of the software be prevented or restricted by other providers (e.g. but not exclusively, end device, marketplace, browser or plug-in providers), SMARTBRIX shall immediately endeavour to restore the availability or features with the measures usually proven for this purpose. SMARTBRIX will communicate such interruptions, if possible and as early as possible.

​(4) SMARTBRIX shall not check whether the Customer may use the software in accordance with the statutory or other provisions applicable to it.

(5) Additional costs shall be incurred if the Customer a) orders special adaptations of the licensed software which cannot be incorporated into the programme core of the licensed software, b) the licensed software is connected to third-party systems via interfaces or import/export functions. Additional support packages can be ordered to assist with the implementation and operation of the software. Customised adaptations of the software are usually offered at a fixed price.

§ 3 Prices and invoicing

(1) The amount of the fees to be paid by the Customer to SMARTBRIX results from the agreements made when the contract is concluded. They are due immediately in advance without deduction in accordance with the booked billing cycle.

(2) All workshops, consultations, configurations, training and other support services are offered as hourly packages and are paid for in full in advance. These services are offered separately by SMARTBRIX.

(3) Customising and programming at a fixed price are initially remunerated with half a down payment. The remaining payment is due with the declaration of readiness for operation or partial acceptance of the programming or customising. If the client has a justified reservation of acceptance, he shall be entitled to retain up to 10% of the order amount for the programming at a fixed price until the complete acceptance has taken place. Customised software remains the sole property of SMARTBRIX until full payment has been made.

(4) Invoices shall be issued in writing by e-mail. If the customer authorises SMARTBRIX to collect direct debits, the customer must ensure that there are sufficient funds in the account. If, due to circumstances for which the Customer is responsible, participation in the direct debit procedure is not possible or if a return debit note is made for which the Customer is responsible, the Customer is obliged to reimburse SMARTBRIX for the bank charges incurred for this. Unless otherwise stated, the prices are in euros plus the statutory value added tax.

(5) Offers are subject to change and non-binding. If additional taxes (e.g. withholding tax) are due for the service in the country of destination, these shall be borne by the licence holder.

(6) SMARTBRIX is entitled to increase the fees for the use of the software appropriately and must give at least three months' notice of this. In this case, the Licensee shall be granted a special right of cancellation in accordance with § 10 (2). The increase shall be deemed reasonable if it does not exceed 5% p.a. since the start of use by the licencee.

§ 4 Publication

Unless otherwise notified in writing, each party grants the other party the non-exclusive, non-transferable, free right of use, unlimited in time and space, to publish the name, address, logo/company logo and trademarks of the other party. The right of use applies exclusively to the reference to the other party as customer or supplier on websites, press releases and other marketing materials (reference).

§ 5 Liability for material defects

(1) SMARTBRIX software is carefully developed and tested. According to the state of the art, it is recognised that it is not possible to create software that runs error-free in all possible system constellations. Hosted software is not permanently and unrestrictedly available. If the ordered software has obvious defects for the Licensee (e.g. but not exclusively, content errors, graphical errors, manufacturing errors or failure to fulfil the agreed purpose of use), the Licensee is obliged to notify SMARTBRIX in writing immediately after receipt of the software or obtaining access to the software.

(2) If there is a defect, SMARTBRIX shall, at its own discretion, rectify the software within a reasonable period of time. If the rectification or replacement is not successful within this period or within a reasonable grace period, the licencee is entitled, at his discretion, to reduce the service price appropriately or to terminate the contract. The Licensee is obliged to support SMARTBRIX in the determination of errors and rectification of defects and to provide or make available auxiliary information.

(3) SMARTBRIX is entitled to bypass or not correct any error that may occur if it can only be corrected with disproportionate effort and the use of the software is not significantly impaired as a result. SMARTBRIX guarantees that the software can be used in accordance with the official product description current at the time of the order and for the entire period of use for the agreed or expected purpose of use, insofar as this is possible for SMARTBRIX.

(4) Should the availability or properties of the software depend on other providers (e.g. but not exclusively, end device, marketplace, browser or plug-in providers) and be prevented or restricted by them, SMARTBRIX shall endeavour to restore the availability or properties with the measures usually proven for this purpose, but shall be released from any further warranty obligation.

(5) Should defects or restrictions occur during the period of use as part of the regular revision and improvement of the software by SMARTBRIX, these must be reported immediately by the Licensee via ticket form, telephone or e-mail to [email protected]. Depending on the severity of the impairment of use, SMARTBRIX shall have a reasonable period of time to provide a remedy. In the event of the occurrence of mere inconveniences without functional or process impairment, an improvement is to be obtained by SMARTBRIX in the course of the usual update process.

§ 6 General liability

(1) SMARTBRIX shall be liable for intent and gross negligence in accordance with the statutory provisions. SMARTBRIX shall only be liable for slight negligence in the event of a breach of a material contractual obligation, the fulfilment of which is essential for the proper execution of the contract and on the observance of which the contractual partner may regularly rely, as well as in the event of damage resulting from injury to life, limb or health. SMARTBRIX shall not be liable for slightly negligent breach of secondary obligations. The essential contractual obligations of SMARTBRIX are described in §§ 1 and 2 of this contract.

(2) The Customer is obliged to carry out a data backup by creating backup copies at its own discretion. SMARTBRIX shall not be liable for any loss of data.

(3) Claims arising from the Product Liability Act are not affected by the above provisions and apply without restriction.

§ 7 Rights of use of the software

(1)SMARTBRIX GmbH shall grant the Contractor the simple right to use the SMARTBRIX software provided for a limited period of time for the agreed period of time in return for payment. The Contractor is only authorised to execute and use the software as intended. It is authorised to reproduce the software for the creation of backup copies, including the Customer's data. The backup copy may not be passed on to third parties without the authorisation of SMARTBRIX. All other rights of use remain with SMARTBRIX. . In all other respects, the provisions of the Copyright Act shall apply in addition with regard to the rights of use. The parties shall make separate agreements regarding customised software created by SMARTBRIX.

(2) Without written authorisation from SMARTBRIX, the Customer is not entitled to use the software beyond the extent described here and in the offer, to make copies of the documentation, the original software or the backup copy; to rent out the software or documentation or otherwise use it commercially, unless this is expressly permitted, to sublicense it or to make it available to third parties in a manner not expressly permitted or to pass it on to third parties; to change, modify or adapt the software or documentation.

(3) This prohibition also applies, among other things, to the translation, modification and further use of the product in parts. The software may no longer be operated or used after the end of the period of use granted. The provisions of copyright law shall also apply here in addition.

(4) For all materials and information handed over by the Customer to SMARTBRIX for processing, the Customer shall ensure that it has the corresponding rights or rights of use. The Customer shall indemnify SMARTBRIX against all claims of third parties, including the costs of legal defence, which they assert against SMARTBRIX in this context due to the infringement of third-party rights.

§ 8 Confidentiality

(1) Confidentiality and access restrictions are agreed in order to protect business secrets and sensitive information. Access by employees and partners of the Customer is determined exclusively by the Customer itself in the course of the configuration of the assignment of rights in the system and is therefore not the subject of this agreement. It only regulates restrictions and confidentiality obligations in the relationship between the licence holder and SMARTBRIX.

(2) The data and documents stored by the Customer in the system may not be downloaded, stored separately or used by SMARTBRIX, its employees and partners for purposes that do not serve the intended operation of the software. They may also not be viewed unless - the Licensee consents to this, - it is necessary for the recovery of data and documents or - it serves the proper fulfilment of SMARTBRIX's contractual obligations. Using the usual and available technical means, SMARTBRIX limits access to the Customer's information to the persons necessary for the fulfilment of customer support. These persons are obliged by SMARTBRIX to comply with this agreement.

(3) The contracting parties shall not disclose business or trade secrets as well as customer information of the other contracting party, which have been entrusted to them or have become known to them in the course of the cooperation, to third parties during the term and after termination of the contractual relationship or exploit them without authorisation for their own business purposes. All data and documents of the Licensee stored in the system are subject to strict confidentiality. SMARTBRIX undertakes to treat this information confidentially, unless it is publicly known, and not to copy, store, forward to employees and third parties not subject to the confidentiality and non-disclosure obligation or otherwise utilise any data or documents beyond the cases provided for in the contract. This also applies beyond the term of the contract. All employees and business partners of SMARTBRIX are informed of this obligation and are bound by it. In this respect, SMARTBRIX shall take all organisational measures to maintain confidentiality.

(4) In the event of termination of the relationship, all data and documents shall be returned by SMARTBRIX to the Customer and subsequently deleted, at the latest after the expiry of statutory retention periods. In addition, the contracting parties mutually undertake to keep secret for an unlimited period of time all information that comes to their knowledge which is recognisable as business or trade secrets of the other party and - unless this is necessary to achieve the purpose of the contract - neither to record nor to pass it on or to exploit it in any other way. This includes, in particular, information about the software, planned further developments of the software as well as price information and data that the customer has stored in the licensed software within the scope of use. The contracting parties shall ensure through suitable contractual agreements with the employees and agents working for them that they are also subject to this confidentiality obligation for an unlimited period of time.

(5) Any copyright and / or other industrial property right notices on documents may not be removed or otherwise made unrecognisable by the contracting parties and material processed in this way may not be passed on to third parties. No licence, reproduction, usage or other rights may be derived from this agreement and from the disclosure of technical details and contexts - irrespective of whether industrial property rights exist or not - by the party that has received the confidential information.

(6) In the event of a breach of the above provisions on confidentiality by the parties, the parties shall be entitled to demand the immediate surrender of all confidential information provided, including all copies, transcripts of any kind, etc., or to demand proof that it has been rendered unusable. The parties shall be fully liable to each other for misuse and unauthorised disclosure of the data provided.

§ 9 Cancellation

(1) The contracting parties may terminate the contract for the use of the SMARTBRIX software and all other continuing obligations with a notice period of three months to the end of the month. The cancellation must be in writing.

(2) If the Customer is entitled to a special right of termination, the notice period according to para. 1 shall apply. Within the notice period, the contract shall be continued under the original conditions without the change triggering the special termination.

(3) The right to extraordinary cancellation remains unaffected. If the Customer is at least 30 days in arrears with a payment, SMARTBRIX shall be entitled to refuse performance and to extraordinarily terminate the entire contractual relationship and all contracts associated with the contractual relationship.

​ § 10 Final provisions

(1) SMARTBRIX reserves the right to amend these terms and conditions or its offer at any time in a manner that is reasonable for the customer and must give three months' notice of this. In this case, the Licensee shall be granted a special right of cancellation in accordance with § 10 (2).

(2) SMARTBRIX is authorised to commission third parties with the provision of parts or the entire range of its services. This applies in particular to hardware services such as server provision as well as their maintenance and data centre services. In addition, individual services within the scope of consulting, training, support and the like may be provided by partners or freelancers of SMARTBRIX, who are obliged to maintain confidentiality and to comply with further provisions of these GTC.

(3) Should a provision of these or included conditions or parts of the offer be or become invalid or incomplete in part, the validity of the remaining provisions of the agreement shall remain unaffected. The invalid provision shall be replaced by a provision that comes closest to the meaning and purpose of the invalid provision in a legally effective manner. The same applies to any loopholes in these terms and conditions and the agreements.

(4) The law of the Federal Republic of Germany shall apply - to the exclusion of the UN Convention on Contracts for the International Sale of Goods and private international law. The exclusive place of jurisdiction for all disputes arising from or in connection with this contract, including the validity of the contract, is the registered office of SMARTBRIX, insofar as contracts with entrepreneurs are concerned. SMARTBRIX reserves the right to take legal action against the Customer at the latter's place of business.

§ 11 SMARTBRIX Licence v1.0

This software and the associated files (the ‘Software’) may only be used (executed, modified, executed after changes) with a valid SMARTBRIX subscription for the correct number of users and Brix. It is prohibited to publish, distribute, sub-licence or sell copies of the Software or modified copies of the Software. The above copyright notice and this permission notice must be included in all copies or substantial portions of the Software.

THE SOFTWARE IS PROVIDED ‘AS IS’ WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.