SMARTBRIX GmbH

§ 1 Scope and Conclusion of Contract 

(1) These General Terms and Conditions apply to all contracts for deliveries and services relating to the product line “SMARTBRIX” (www.smartbrix.io ) of SMARTBRIX GmbH – hereinafter referred to as “SMARTBRIX”. Contracts between the Customer and SMARTBRIX are concluded when the Customer places a written order or an order via the online portal of the licensed software.

(2) The SMARTBRIX software is provided as a hosted solution and can be accessed remotely by the Customer. For the term of this agreement, SMARTBRIX grants the Customer a non-exclusive, non-transferable license to use (run, modify, run after modification) the SMARTBRIX software in accordance with § 11 SMARTBRIX License Terms.

(3) The above copyright notice and this permission notice must be included in all copies or substantial portions of the Software.
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§ 2 Provision of the Software

(1) With regard to the provision of software, SMARTBRIX grants the Customer, for the duration of the contract, the right to use the software for its own purposes in accordance with these General Terms and Conditions and the individual offer. For the duration of the contract, SMARTBRIX will provide the Customer free of charge with updates (changes and bug fixes) and upgrades (new functionalities) for the core functionalities of the licensed software. Unless otherwise agreed, the right to use the SMARTBRIX software is granted on a revocable basis for an indefinite period.

(2) Unless otherwise agreed, SMARTBRIX is responsible for hosting. In particular, hosting includes the provision, maintenance and repair of the server hardware by SMARTBRIX or a third party commissioned by SMARTBRIX, bearing the operating costs of the server hardware, installing updates and upgrades of the licensed software – provided that customer-specific customizations do not impede installation –, installing updates and upgrades of the software, creating backup copies of the data sets and providing storage space.

(3) The Customer is aware that 100% availability of the software is not possible and that interruptions may occur, for example due to malfunctions and maintenance work. If the availability or functionalities of the software are prevented or restricted by other providers (for example, but not limited to, providers of end devices, marketplaces, browsers or plug-ins), SMARTBRIX will promptly endeavor to restore availability or functionalities using the measures commonly employed for this purpose. Where possible, SMARTBRIX will notify the Customer of such interruptions and do so as early as possible.

(4) SMARTBRIX does not verify whether the Customer is permitted to use the software under the statutory or other regulations applicable to the Customer.

(5) Additional costs are incurred if the Customer (a) commissions special adaptations of the licensed software that cannot be incorporated into the core program of the licensed software, or (b) connects the licensed software 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. Individual adaptations of the software are usually offered at a fixed price.
 

§ 3 Prices and invoicing

(1) The amount of the fees payable by the Customer to SMARTBRIX results from the agreements made upon conclusion of the contract. The fees are due immediately, in advance and without deduction, in accordance with the agreed billing cycle.

(2) All workshops, consulting, configuration, training and other support services are offered as hourly packages and are payable in full in advance. These services are offered separately by SMARTBRIX.

(3) Customization and programming services offered at a fixed price are initially remunerated by a down payment of 50%. The remaining amount becomes due upon the declaration of operational readiness or partial acceptance of the programming or customization. If the Customer has a justified reservation regarding acceptance, it is entitled to retain up to 10% of the fixed-price order amount until final acceptance. Custom-built software remains the sole property of SMARTBRIX until payment has been made in full.

(4) Invoices are issued in writing by e-mail. If the Customer authorizes SMARTBRIX to collect payment by direct debit, the Customer must ensure that there are sufficient funds in the account. If participation in the direct debit procedure is not possible due to circumstances attributable to the Customer, or if a direct debit is returned for reasons attributable to the Customer, the Customer is obliged to reimburse SMARTBRIX for the bank charges incurred. Unless otherwise stated, prices are in euros plus statutory VAT.

(5) All offers are non-binding and without obligation. If additional taxes (such as withholding tax) are payable on the service in the destination country, these shall be borne by the Licensee.

(6) SMARTBRIX is entitled to reasonably increase the fees for the use of the software and must notify the Licensee of such increase at least three months in advance. In this case, the Licensee is granted a special right of termination pursuant to § 10 (2). An increase is deemed reasonable if it does not exceed 5% per year since the start of use by the Licensee. 
 

§ 4 Publication

Unless otherwise notified in writing, each party grants the other party a non-exclusive, non-transferable, royalty-free, perpetual and worldwide right to use the other party’s name, address, logo/company identifier and trademarks. This right of use applies solely to referring to the other party as a customer or supplier on websites, in press releases and in other marketing materials (reference).
 

§ 5 Liability for material defects

(1) The software from SMARTBRIX is developed and tested with care. According to the state of the art, it is generally not possible to create software that is entirely error-free in all possible system configurations. Hosted software is not permanently and unrestrictedly available. If the ordered software exhibits obvious defects for the Licensee (for example, but not limited to, content errors, graphical errors, manufacturing errors or failure to fulfill the agreed purpose of use), the Licensee is obliged to notify SMARTBRIX of this in writing without undue delay after receiving the software or obtaining access to the software.

(2) If a defect exists, SMARTBRIX will, at its own discretion, remedy the defect within a reasonable period of time. If the rectification or replacement fails within this period and within a reasonable grace period, the Licensee is entitled, at its discretion, to appropriately reduce the price or to terminate the contract. The Licensee is obliged to assist SMARTBRIX in identifying and eliminating defects and to prepare or provide supporting information.

(3) SMARTBRIX is entitled to circumvent or not correct any error that would only be removable with disproportionate effort and that does not significantly impair use of the software. SMARTBRIX warrants that, in accordance with the official product description current at the time of ordering and for the entire period of use, the software can be used for the agreed or expected purpose, insofar as this is possible for SMARTBRIX.

(4) If the availability or functionalities of the software depend on other providers (for example, but not limited to, providers of end devices, marketplaces, browsers or plug-ins) and are prevented or restricted by them, SMARTBRIX will endeavor to restore availability or functionalities using the measures commonly employed for this purpose, but is released from any warranty obligations beyond this.

(5) If, in the course of the regular revision and improvement of the software by SMARTBRIX, defects or restrictions occur during the period of use, the Licensee must report these without undue delay via ticket form, telephone or e‑mail to [email protected] . Depending on the severity of the impairment of use, SMARTBRIX is granted an appropriate period of time to provide a remedy. In the case of mere inconveniences without functional or process impairments, an improvement shall be made as part of SMARTBRIX’s usual update process.
 

§ 6 General liability

(1) SMARTBRIX is liable for intent and gross negligence in accordance with statutory provisions. In cases of simple negligence, SMARTBRIX is only liable for the breach of an essential contractual obligation, the fulfillment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner may regularly rely, as well as for damages resulting from injury to life, limb or health. SMARTBRIX is not liable for simply negligent breaches of ancillary duties. The essential contractual obligations of SMARTBRIX are described in §§ 1 and 2 of this contract.

(2) The Customer is obliged to perform data backups by creating backup copies at its own discretion. SMARTBRIX is not 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 grants the Customer, in return for payment, a simple (non-exclusive) right to use the SMARTBRIX software provided, limited in time to the respective agreed term. The Customer is only entitled to use the software as intended. The Customer is entitled to reproduce the software for the purpose of creating backup copies, including the Customer’s data. Passing on backup copies to third parties without SMARTBRIX’s consent is prohibited. All further rights of use remain with SMARTBRIX. Otherwise, the provisions of copyright law apply in addition with regard to rights of use. Separate agreements are concluded between the parties for custom software created by SMARTBRIX.

(2) Without SMARTBRIX’s prior written consent, the Customer is not entitled to use the software beyond the scope described herein and in the offer; to make copies of the documentation, the original software or the backup copy; to rent out or otherwise commercially exploit the software or documentation, unless expressly permitted; to sublicense or otherwise make the software available to third parties or pass it on to third parties in ways not expressly permitted; or to change, modify or adapt the software or documentation.

(3) This prohibition also applies, among other things, to translating, altering and reusing the product in parts. After the expiry of the granted period of use, the software may no longer be operated or used. The provisions of copyright law also apply here in addition.

(4) For all materials and information provided by the Customer to SMARTBRIX for processing, the Customer ensures that it holds the relevant rights or rights of use. The Customer indemnifies SMARTBRIX against all claims by third parties, including the costs of legal defense, asserted against SMARTBRIX in this context due to the infringement of third-party rights.

§ 8 Confidentiality

(1) To protect trade secrets and sensitive information, confidentiality and access restrictions are agreed. Access by the Customer’s employees and partners is determined solely by the Customer through configuration of access rights within the system and is therefore not the subject of this agreement. This agreement only governs restrictions and confidentiality obligations between the Licensee and SMARTBRIX.

((2) The data and documents stored by the Customer in the system may not be downloaded, separately stored or used by SMARTBRIX, its employees or partners for purposes other than the intended operation of the software. They may also not be viewed unless – the Licensee consents, – this is necessary for the restoration of data and documents, or – it serves the proper fulfillment of SMARTBRIX’s contractual obligations. Using customary and available technical means, SMARTBRIX restricts access to the Customer’s information to those persons necessary for the provision of customer support. Those persons are obliged by SMARTBRIX to comply with this agreement. 

(3) The contracting parties will not disclose to third parties or improperly exploit for their own business purposes any trade or business secrets or customer information of the other contractual partner entrusted to them or made known to them in the course of cooperation, during and after termination of the contractual relationship. All data and documents stored in the system by the Licensee are subject to strict confidentiality. SMARTBRIX undertakes to treat this information as confidential, insofar as it is not publicly known, and, beyond the cases provided for in the contract, not to copy, store, forward to employees or third parties who are not subject to confidentiality obligations, or otherwise use any data or documents. This also applies beyond the term of the contract. All employees and business partners of SMARTBRIX are informed of and bound by this obligation. SMARTBRIX takes all organizational measures necessary to ensure confidentiality.

(4) In the event of termination of the relationship, all data and documents will be returned by SMARTBRIX to the Customer and subsequently deleted, at the latest after expiry of statutory retention periods. The contracting parties further mutually undertake to keep confidential, without limitation in time, all information that becomes known to them and that is recognizable as the other party’s trade or business secret, and – unless necessary to achieve the purpose of the contract – neither to record nor to pass it on or otherwise exploit it. This includes in particular information about the software, planned further developments of the software, pricing information and data that the Customer has stored in the licensed software in the course of use. Through appropriate contractual arrangements with their employees and agents, the contracting parties will ensure that they also remain indefinitely subject to this confidentiality obligation.

((5) Any copyright and/or other proprietary notices on documents may not be removed or otherwise rendered unrecognizable by the contracting parties, and material altered in such a way may not be passed on to third parties. No license, reproduction, usage or other rights can be derived by the party receiving the confidential information from this agreement or from the disclosure of technical details and interrelationships, regardless of whether such information is protected by intellectual property rights.

(6) In the event of a breach by either party of the above provisions on confidentiality, the other party is entitled to demand the immediate return of all confidential information provided, including all copies, reproductions of any kind, etc., or to demand proof of their destruction. The parties are mutually liable in full for any misuse and unauthorized disclosure of the data provided.

§ 9 Termination

(1) The contracting parties may ordinarily terminate the contract for the use of the SMARTBRIX software, as well as any other continuing obligations, by giving three months’ notice to the end of a month. Notice of termination must be given in writing.

(2) If the Customer has a special right of termination, the notice period pursuant to paragraph 1 applies. During the notice period, the contract will continue under the original conditions, without applying the change that triggered the special right of termination.

(3) The right to extraordinary termination remains unaffected. If the Customer is in default of payment for at least 30 days, SMARTBRIX is entitled to refuse performance and to extraordinarily terminate the entire contractual relationship and all contracts related to the contractual relationship.
 

​ § 10 Final provisions

((1) SMARTBRIX reserves the right to amend these terms or its offer at any time in a manner reasonable for the Customer and must inform the Customer thereof three months in advance. In such a case, the Licensee is granted a special right of termination pursuant to § 10 (2).

(2) SMARTBRIX is entitled to commission third parties with providing parts of or the entire range of its services. This particularly concerns hardware services such as server provisioning and maintenance, and data center services. In addition, individual services in the areas of consulting, training, support and similar may be provided by SMARTBRIX partners or freelancers who themselves are obliged to maintain confidentiality and comply with the other provisions of these General Terms and Conditions.

(3) Should any provision of these terms or of incorporated conditions or elements of the offer be or become invalid or incomplete in part, the remaining provisions of the agreement shall remain unaffected. The invalid provision shall be replaced by such provision that, in a legally effective manner, most closely reflects the economic intent and purpose of the invalid provision. The same applies accordingly to any gaps in these terms 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 of private international law. The exclusive place of jurisdiction for all disputes arising out of or in connection with this contract, including its validity, shall be the registered office of SMARTBRIX, insofar as contracts with entrepreneurs are concerned. SMARTBRIX reserves the right to bring an action against the Customer also at the Customer’s place of business.

§ 11 SMARTBRIX License Terms

(1) This software and the associated files (the “Software”) may only be used (run, modified, run after modification) with a valid SMARTBRIX subscription for the correct number of users and Brix.

(2) It is prohibited to publish, distribute, sublicense or sell copies of the Software or modified copies of the Software.

(3) The above copyright notice and this permission notice must be included in all copies or substantial portions of the Software.

(4) The Software is provided “as is”, without warranty of any kind, express or implied, including but not limited to the warranties of merchantability, fitness for a particular purpose and non‑infringement.

(5) In no event shall the authors or copyright holders be liable for any claim, damages or other liability, whether in an action of contract, tort or otherwise, arising from, out of or in connection with the Software or the use or other dealings in the Software.