§ 1 Scope of application

(1) These General Terms and Conditions (GTCs or GTC Agreement) shall apply to all contractual relationships for the provision of SaaS services and associated services concluded by Tomorrow Things GmbH, Martin-Luther-King-Straße 24, 53175 Bonn (hereinafter referred to as the "Provider") with its Customers.

(2) The Provider shall only conclude contracts with Customers who act as entrepreneurs within the meaning of Section 14 of the German Civil Code (BGB), are legal entities under public law or special funds under public law. The Customer warrants that he is acting as an entrepreneur within the meaning of § 14 BGB.

(3) If the Customer is a merchant, a legal entity under public law or a special fund under public law, these GTCs shall also apply to future business relationships with the Customer without the Provider having to refer to them again in each individual case. The same applies if the Customer is an entrepreneur within the meaning of § 14 BGB.

(4) These General Terms and Conditions apply exclusively. Deviating, conflicting or supplementary terms and conditions of the Customer shall only become part of the contract if and insofar as the Provider has expressly agreed to their validity. This requirement of consent shall apply in any case, for example even if the Provider performs the services without reservation in the knowledge of the conditions.

(5) This translations of these GTCs or GTC Agreement into englisch serve as a reading aid. In the event of any discrepancies between the language versions, the German text shall take precedence.

§ 2 Subject matter of the contract

(1) The Provider shall provide SaaS services for the Customer. The subject matter of this contract is the granting of the use of the AIoT software solution (product name "Cloud Connect" with the components "Edge Agent" and "Digital Twin Hub") via the Internet for a fee and for a limited period of time for the duration of the contract.

(2) The Provider shall grant the Customer the use of the current version of Cloud Connect for the users defined by the Customer via the Internet by means of access through a browser.

§ 3 Conclusion of contract, contract text, input errors and contract language

(1) The contract is concluded when the Customer has entered their data in the order form and clicks on the button that concludes the registration process.

(2) The text of the contract is saved by the Provider after the contract is concluded and is no longer accessible to the Customer thereafter.

(3) The Customer can check his entries at any time before completing the order process and recognize input errors. If necessary, the Customer can use the functions available in his browser to enlarge the display of his entries. The Customer can correct his entries with the help of the correction aids provided in the registration process and new entries using his mouse and keyboard. The Customer can cancel the registration process at any time before completing the registration process by closing the browser.

(4) The contract will be concluded in German. In the event of discrepancies between the translated English contract and the official German contract, the official German contract shall prevail.

§ 4 Scope of services; costs; support

(1) The software is billed either as a monthly or annual license fee depending on the definition of the booked item. For the hardware and software, the Provider offers the scope of services selected by the Customer as part of the ordering process and the service description as all-inclusive prices.

(2) All prices are net plus shipping and the applicable statutory VAT.

(3) In principle, the professional installation of the hardware is not part of the offer, but is the responsibility of the Customer. However, the Provider is responsible for the data integration of the required hardware, including logistical services, as well as the operation of Cloud Connect and additional services. The resulting expenses are covered by the flat-rate service fee.

(4) A machine is defined as a production unit that independently provides data in an interface and is connected to Cloud Connect. The machines or sensors covered by the contract and their respective production facilities shall be listed by the Customer and transmitted to the Provider immediately after conclusion of the contract. Furthermore, the Customer's contact persons for system technology/equipment/operation must be named.

§ 5 Operation and update

(1) The Provider shall ensure the functionality and availability of Cloud Connect to the best of its ability for the duration of the contractual relationship and shall maintain Cloud Connect in a condition suitable for contractual use. The scope of functions and the conditions of use are set out in this contract.

(2) The Provider shall send the Customer user documentation and access data by email after conclusion of the contract.

(3) The Provider may update and further develop Cloud Connect at any time and adapt it in particular due to a change in the legal situation, technical developments or to improve IT security. In doing so, the Provider shall take appropriate account of the legitimate interests of the Customer and inform the Customer in good time of any necessary updates. In the event of a significant impairment of the legitimate interests of the Customer due to updates which are not caused by a change in the legal situation or technical developments or which serve to improve IT security, the Customer shall be entitled to a special right of termination in accordance with Section 14 (3) of this contract.

(4) The Provider shall not be responsible for adapting Cloud Connect to the individual needs of the Customer. 

(5) The Provider shall take state-of-the-art measures to protect the Customer's data. However, the Provider shall have no duty of safekeeping or care with regard to the Customer's data. The Customer is responsible for ensuring that the data is adequately backed up.

§ 6 Software development, consulting and application

(1) If the Customer wishes to have various added value service packages based on Cloud Connect developed and operated by or with the support of the Provider, these shall be invoiced in accordance with the agreed individual expenditure.

(2) Software development or consulting shall be invoiced in daily blocks per day or part thereof. The following scope of development is purely for orientation and idea generation. Implementation shall only take place after specification and prioritization by the Customer.

§ 7 Cooperation; general duties and obligations of the Customer

(1) The Customer is obliged to cooperate in order to enable the Provider to properly provide the services under this contract.

(2) In particular, the Customer has the following general obligations:

a) The services may not be misused; in particular, no knowledge and data obtained by the Provider, in particular by evaluating or reconstructing programming or calculation steps, may be evaluated or made accessible to third parties or transferred to the Customer's own models. This shall apply accordingly to control or command data generated or fed in by devices provided by the Provider.

b) The Customer shall ensure that the databases transmitted to the Provider are complete and correct.

c) The Customer is obliged to inform its users of the details of this contract and in particular of the rights and obligations in good time before the start of use. 

d) The Customer shall be liable for all breaches of duty by its users and other third parties who commit breaches of duty within the Customer's sphere of control, unless the Customer can prove that it is not responsible for the breaches of duty.

e) The Provider and its vicarious agents shall be indemnified against all third-party claims based on unlawful use of the products and the associated services by the Customer. If the Customer recognizes or must recognize that such an infringement is imminent, the Customer is obliged to inform the Provider immediately.

f) The Customer must register using a valid e-mail address in order to make full use of the range of services.

g) Personal access data (usernames and password) may not be passed on to third parties and must be kept protected from access by third parties. For security reasons, they must be changed before initial use and then at regular intervals. If there is reason to suspect that unauthorized persons have gained knowledge of the access data, the Customer must change them immediately. They shall only be stored on computers, USB sticks and CD-ROMs in an encrypted form.

h) The Customer is obliged to inform the Provider immediately if there are any indications that the access data could or has been used without authorization. The Customer shall be liable for any misuse of the user account and/or its data.

i) If personal data within the meaning of § 3 of the Federal Data Protection Act is to be processed by the Provider, the Customer must inform the Provider of this immediately in writing.

j) The Customer's data to be secured by the Provider shall be checked for harmful components by appropriate means (e.g. virus filters) before transmission by the Provider.

k) Furthermore, the Customer shall refrain from modifying, adapting, altering, translating or creating derivative works from the Services; merge or co-locate with any other hardware, software, products or services that are not consistent with the purpose of the Contract or not expressly authorized by the Provider.

l) The electrical energy for the installation, operation and maintenance as well as any potential equalization required, including the associated grounding of the required hardware to be installed at the Customer's premises, shall be provided at the Customer's own expense. The Customer shall provide the electrical power supply for the operation of the hardware in accordance with the hardware requirements at the installation site.

m) The Customer shall, at its own expense, allow the Provider's employees and its service partners access to the property and the buildings located thereon, insofar as this is necessary for the performance of testing, installation and maintenance work.

n) All maintenance and modification work on the hardware provided as part of the service may only be carried out by the Provider or companies commissioned by the Provider.

o) The Provider is entitled to use the assistance of third parties, in particular subcontractors, to fulfill individual or all contractual obligations.

p) The Customer shall inform the Provider in writing of any intended change to the agreed conditions of use or system environment.

q) The Customer is obliged to ensure that the information and content entered by him, the manner in which the Customer uses the software, does not infringe the rights of third parties and does not violate statutory provisions. The Provider expressly reserves the right to impose civil and/or criminal sanctions in the event of a breach of this provision. The Customer hereby indemnifies the Provider against any recourse claims that may result from a breach of this provision.

r) The Customer is obliged to carry out updates. The compatibility of the software with outdated versions cannot be expressly guaranteed.

s) The Provider is entitled to make appointments with the Customer digitally at any time (e.g. via MS Teams or similar).

§ 8 Terms of use AIoT software solution

(1) The following terms of use apply to the AIoT software solution (product name "Cloud Connect" with the components "Edge Agent" and "Digital Twin Hub").

(2) The Customer shall use the Platform and related services only for lawful purposes and in accordance with all applicable laws and regulations. The Customer shall refrain from activities that disrupt the integrity of the platform or violate the rights of other users.

(3) In order to use the platform, the Customer may have to create a user account. The Customer shall provide correct and complete data and keep it up to date at all times.

(4) The platform and the services as well as all associated content are the intellectual property of the Provider or its licensors and are protected by copyright.

(5) The Customer shall indemnify the Provider against all third-party claims asserted against the Provider in connection with an infringement of rights caused by the Customer when using the platform and the services upon first request. The indemnification also includes the reimbursement of the costs that arise or have arisen from the necessary and appropriate legal defense.

§ 9 Terms of payment, delivery and payment; invoicing

(1) The shipping method, payment method and terms of delivery are determined by the options selected by the Customer during the ordering process.

(2) The total amount for the booked services is due at the beginning of the contract with a payment term of 10 days. In the event of a contract extension, the total amount for the extension period is due on the extension date with a payment term of 10 days. The Provider shall invoice the Customer immediately for the services booked. The date of invoicing is irrelevant for the payment term.

(3) All remuneration, prices and ancillary costs are always net prices plus statutory taxes and duties.

(4) The Provider may demand additional remuneration for its own expenses if

a) a reported malfunction is related to the use of a rental item in a non-approved environment or to changes made to the rental item by the Customer or third parties,

b) additional expenses are incurred due to improper fulfillment of the Customer's obligations.

(5) Insofar as the Provider is entitled to demand additional compensation for its expenses, this shall be due immediately.

(6) Unless otherwise contractually agreed in individual cases, travel 

costs (e.g. expenses, meals, transportation) for trips carried out by the Provider on behalf of the Customer shall be borne by the Customer and are not included in the agreed flat-rate remuneration.

§ 10 Default

(1) In the event of a significant delay in payment, the Provider is entitled to suspend its services. In this case, the Customer remains obliged to pay the monthly prices.

(2) If the Customer

a) for two consecutive months with the payment of the remuneration or a not insignificant part of the remuneration or

b) in a period extending over more than two months, with the payment of the prices in an amount equal to the monthly basic price for two months

the Provider may terminate the contractual relationship without notice.

(3) The Provider reserves the right to assert further claims for late payment in any case. For reminders and/or returned direct debits, the Provider may additionally demand a flat-rate processing fee of EUR 10 in each individual case.

(4) If the Provider terminates the contractual relationship extraordinarily for good cause in accordance with the above provisions or in the event of any other significant breach of duty by the Customer following a corresponding warning that has remained fruitless, the Provider may continue to demand the contractually agreed remuneration until the end of the intended contractual period.

§ 11 Scope of use and rights of use 

(1) The Provider shall grant the Customer, including the users defined by the Customer, the non-exclusive (i.e. simple), non-transferable and non-sublicensable right, limited to the term of the contract, to use the current version of Cloud Connect by means of access via a browser in accordance with the contractual provisions in accordance with the defined purpose of use. The Customer shall not receive any further rights. 

(2) The Customer may only use Cloud Connect within the scope of its own business activities and by its own personnel. The Customer shall not be entitled to use Cloud Connect beyond the use permitted in accordance with this Agreement or to have it used by third parties or to make it accessible to third parties. In particular, the Customer is not permitted to reproduce or distribute Cloud Connect or parts thereof or to make it publicly accessible. 

(3) The Provider shall be entitled to take appropriate technical measures to protect against non-contractual use. The contractual use of the services may not be impaired as a result.

(4) The Provider may revoke the Customer's right of use and/or temporarily suspend or extraordinarily terminate the contract if the Customer exceeds its rights of use or violates regulations for protection against unauthorized use. The Provider must always grant the Customer a reasonable grace period to remedy the situation before terminating the contract.

(5) The sole revocation of the right of use shall not simultaneously be deemed to be a termination of the contract. After revocation, the Customer must confirm the cessation of use to the Provider in writing.

(6) The Provider's claim to remuneration for use exceeding the agreed use remains unaffected.

(7) In the event of a first breach of the terms of use, the Customer shall be entitled to the reinstatement of the right of use after he has proven that he has discontinued the use in breach of contract and prevented any future use in breach of contract.

(8) Upon request, the Customer shall provide the Provider with all information known to him or accessible to him for the assertion of claims against third parties, in particular the name and address of the third party and the nature and extent of his claims against the third party arising from the unauthorized provision of the program.

§ 12 Availability

The average availability of Cloud Connect is targeted at 99% or higher. This availability results from the combination (multiplication) of the component availability:

a) Web & User Interface & APIs: 99.5%

b) AIoT platform core: 99.5%

c) Managed hosting via cloud Provider: 99.9%

(2) Only the Provider's measuring devices are used as proof of availability. The following service interruptions are not considered downtimes and are not taken into account when calculating availability (excused events)

(a) Maintenance 

b) Malfunctions, failures and problems caused by the Customer, its employees or representatives.

c) Outages caused by the actions of third parties (e.g. DDoS attack, electrical outages, etc.)

§ 13 Customer Help Center

The Provider shall provide the Customer with a Customer Help Center. All incoming tickets are prioritized. The following applies to severity levels:

a) The Provider reserves the right to categorize the severity level as follows:

b) The Provider shall comply with the following response and resolution times for problems:

§ 14 Term and termination

(1) This contract has an initial fixed term of 1 month.

(2) This contract can be terminated by either party with a notice period of 2 weeks to the end of the respective contract. If no notice of termination is given in due time, this contract and the associated licenses shall be automatically extended by 1 month in each case.

(3) The right to terminate without notice for good cause remains unaffected. Good cause shall be deemed to exist for the Provider in particular if the Customer fails to make payments due in accordance with Section 10 (2) or continues to violate the contractual provisions on the use of Cloud Connect after a written warning with a reasonable deadline.

(4) Notice of termination must be given in writing (including email at info@tomorrowthings.com).

§ 15 Warranty

(1) With regard to the granting of the use of the software and the provision of storage space, the warranty provisions of rental law (§§ 535 ff. BGB) shall apply.

(2) The Customer must notify the Provider immediately of any defects.

(3) The warranty for only insignificant reductions in the suitability of the service is excluded. Strict liability pursuant to Section 536a (1) BGB for defects that already existed when the contract was concluded is excluded.

(4) RoHS conformity labeling of the individual components in accordance with the manufacturer's information. The supplier assumes no liability for the correctness of this information.

§ 16 Liability

(1) In the event of intent or gross negligence, the Provider shall be liable in accordance with the statutory provisions.

(2) In the case of simple negligence, the Provider shall only be liable if it is a breach of a material contractual obligation. In this case, the Provider's liability is limited to the foreseeable damage typical for the contract. An essential contractual obligation is an obligation whose fulfillment is essential for the proper execution of a contract and on whose compliance the Customer may regularly rely.

(3) However, the liability of the Provider in the event of negligent causation of damage shall be limited to an amount of EUR 5,000,000.00 (in words: EURO five million). The Provider expressly draws the Customer's attention to the fact that it is possible to take out appropriate insurance to cover a higher liability sum at the Customer's request and expense.

(4) The above limitations of liability also apply in favor of legal representatives, employees and vicarious agents of the Provider.

(5) Claims for damages under the Product Liability Act, in the event of the assumption of a guarantee and in the event of injury to life, limb or health shall remain unaffected by the above limitations of liability.

(6) Unless expressly regulated otherwise above, the liability of the Provider is excluded.

(7) The Provider is not liable for the loss of data to the extent that the damage is due to the fact that the Customer has failed to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.

§ 17 Security and use of the collected data

(1) The Customer has the option of providing the Provider with all access data, in particular for OPC UA servers of the machines, in an available format of a password manager. Possible formats can be requested.

(2) The Customer shall provide sensitive information, such as material identifications, only in anonymized form via suitable interfaces (e.g. OPC-UA server).

(3) The Provider shall ensure that this data is only used in this anonymized form.

(4) The Provider shall be granted the irrevocable right to use the collected machine data for research and marketing purposes.

(5) The Provider is granted the irrevocable right to use the data structure on the connected OPC UA server, not the time series data of the production process itself, to create templates, so-called blueprints.

§ 18 Data protection

(1) When collecting, processing and using the Customer's personal data, the Provider assures to observe the provisions of the Federal Data Protection Act (BDSG) and other relevant legal provisions.

(2) The Provider collects, processes and uses personal data only insofar as this is necessary for the establishment, content design or amendment of the contractual relationship and for advising the Customer, advertising and market and opinion research for our purposes and there is no reason to assume that the Customer has an interest worthy of protection in the exclusion of use.

(3) The Customer is generally not entitled to demand access to the Provider's premises in which the services used by him are technically operated. This shall not affect the access rights of the Customer's data protection officer following written notification to check compliance with the requirements in accordance with the Annex to Section 9 BDSG and the Provider's other handling of personal data in accordance with the law and the contract in the context of the operation of the services under this contract.

§ 19 References

(1) The Customer grants the Provider the right to name the Customer as a reference for the use of Cloud Connect, including the right to use the Customer's name and logo on the Provider's website, social media and at trade fairs.

(2) The reference shall also include a joint case study, which shall be prepared by the Provider in close consultation with the Customer. The case study will be designed as a so-called white paper and is expected to comprise three to five pages. In addition, the Customer agrees to conduct up to three reference discussions with other interested parties of the Provider.

§ 20 Amendments to the General Terms and Conditions (GTC)

If the Provider intends to make changes to these General Terms and Conditions, the Customer shall be notified of the changes in writing at least six weeks before they come into effect. If the Customer does not terminate the contract in writing within three weeks of receipt of the notification of change, the changes shall become part of the contract at the intended time. The Provider shall expressly draw the Customer's attention to this consequence in the notification of change.

§ 21 Final provisions

(1) Should one of the above provisions be wholly or partially invalid, this shall not affect the validity of the remaining provisions. The parties shall replace such provisions with effective and enforceable provisions which come as close as possible to the meaning and economic purpose and the intention of the parties at the time of conclusion of the contract. The same shall apply in the event of a gap in the contract.

(2) The Customer shall only be entitled to a right of set-off if his counterclaim has been legally established or is undisputed. The Customer shall only be entitled to assert a right of retention due to counterclaims arising from this contractual relationship.

(3) There are no verbal or written collateral agreements to this contract. Amendments to this contract and its annexes must be made in writing. This also applies to any change to the written form requirement.

(4) This contract shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The exclusive place of jurisdiction for all possible disputes arising from or in connection with the execution of this contract is Bonn.