These terms and conditions (“Terms”) apply between Basking Automation GmbH, a limited liability company under the laws of Germany with business address at Akazienstraße 3A, 10823 Berlin/Germany, registered with the commercial register of the local court Charlottenburg under HRB 192741 B, represented by its managing director Dr. Eldar Gizzatov (“Basking.io”) and Basking.io’s customers as entrepreneurs (section 14 BGB) in form of natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, act in exercise of their trade, business or profession (”Customer(s)“), who wish to use the software products of Basking.io available through the website www.basking.io as software-as-a-service (SaaS). These Terms shall also apply to related services by Basking.io for the time of the term of the agreement.
- SCOPE OF THE AGREEMENT
- Basking.io has developed certain software components and programs as software-as-a-service as described in detail on the Website and/or Schedule 1 (the “Software”).
- Basking.io owns the exclusive copyrights and other intellectual property rights to the Software. However, the Customer is aware, that the Software also contains open source components .
- Customer wishes to obtain a license from Basking.io to use the Software for the term of this Agreement.
- Customer is aware that Customer shall license/buy additional hardware and software (as applicable) for using the Software and might be obliged to enter into separate agreements with third party suppliers and/or Basking.io. Details shall be set forth in the License Sheet (as defined below).
- Basking.io and Customer agree that Customer shall be solely responsible for any electricity and technical requirements as well as the use of any content and/or (personal) data included by Customer in the Software. For details please refer to Clause 12 below.
- This Agreement sets forth the general terms and conditions under which Basking.io shall grant Customer a license to use the Software.
- In this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings:
“Additional License(s)” has the meaning as set forth in Sub-Clause 6.1;
“Admin Account” has the meaning as set forth in Sub-Clause 3.1;
“Agreement” means the agreement relating to the Terms as amended from time to time including all its annexes and schedules;
“Electricity Requirements” means the requirements and electricity standards the Customer must have to receive the services by Basking.io and use the Software as set out on the Website and in the License Sheet;
“Intellectual Property Rights” means any patents, copyright, design right, trademark, service mark, logo, database right, trade secret, patent applications, rights in inventions, know-how and/or other present or future intellectual property right of any type;
“License” means the license granted by Basking.io to Customer according to Clause 5 hereof;
“License Fee” means the fee for the License for the License Period;
“License Period” has the meaning as set forth in Sub-Clause 3.2;
“License Sheet” means the license sheet attached to this Agreement as Schedule 1 which defines the scope of the License with regard to the number of User Devices, the License Fee and, as the case may be, the date of the beginning of the License Period;
“Party” means either Customer or Basking.io and “Parties” means Customer and Basking.io together;
“Set-up Services” means the services for setting up the Software as described in detail herein and in the License Sheet;
“Set-up Fee” means the one-time set-up fee for the Set-up Services as set forth herein and in the License Sheet;
“Technical Requirements” means the technical requirements the Customer must have to use the Software as set out on the Website and in the License Sheet;
“Term” means the term of this Agreement, as detailed in Sub-Clauses 3.1 and 3.2;
“User Device(s)” means the number of IoT devices as agreed in the License Sheet in form of paid user devices in the system;
“Website” means the website www.basking.io and related sub-sites provided by Basking.io.
- Irrespective of the definitions as set forth in Clause 2.1, this Agreement contains further definitions.
- Headings shall be ignored in interpretation.
- Reference to Clauses and Sub-Clauses are to those of this Agreement.
- Words importing gender shall include all genders; words denoting the singular shall include the plural; words denoting persons include incorporated and unincorporated bodies, and in each case vice versa.
- Reference to any directive, statute, statutory provision or statutory instrument includes a reference to that directive, statute, statutory provision or statutory instrument together with all rules and regulations made under them and as from time to time amended, consolidated or re-enacted.
- The following documents shall have the following order of priority, whereby the first document shall have the highest priority:
(b) this Agreement.
- This Agreement will take effect from the date of successful registration of Customer via the Website (see Sub-Clause 3.1) or, as will take effect from the date agreed in the License Sheet, and shall last for at least one year or one month, as applicable, until terminated (the “Initial Term”). This Agreement will automatically renew for additional terms of one year or one month each, unless terminated to the end of the then current term by giving not less than three (3) months prior written notice regarding the term of at least one (1) year or one (1) month prior written notice regarding the term of at least one (1) month , as applicable (the Initial Term and a renewed term each a “License Period”).
- Basking.io shall provide the agreed Set-up Services. Customer shall provide any (technical or resource) requirement or information to and communicate with Basking.io to the extent necessary to provide the Set-up Services, including but not limited to the Electricity Requirements.
- Basking.io makes the Software in its current version available to Customer via the Website only.
- Upon a successful registration by Customer via the Website (see Sub-Clause 3.1), Basking.io will send to Customer by email access information that Customer needs for the use of the Software.
- The Software as well as updates/upgrades shall be deemed accepted once the Customer has successfully accessed it via the respective Admin Account for the first time.
- Subject to the terms and conditions of this Agreement, and for the duration of the License Period, Basking.io grants Customer a non-exclusive license to use the Software, which non-exclusive license is hereby accepted by Customer (the “License”). The License shall be granted as non-exclusive, non-assignable, non-transferable, with no right to sub-license, worldwide limited right to use the Software. Customer is responsible for its staff’s and/or respective user’s of the Software compliance with the terms of this Agreement .
- The scope of the License shall be subject to and limited by the number of User Devices as well as Additional Licenses as agreed in this Agreement and Schedule 1. In order to increase the number of User Devices more licenses have to be obtained subject to and in accordance with Clause 6.
- As part of the License, Customer shall be entitled to extract and copy the data within the Software. Apart from that, Customer shall not be entitled to copy the Software in any way .
- The License does not include any installation, configuration or support services unless set forth herein and/or individually agreed between the Parties.
- Customer acknowledges that Basking.io has no delivery obligation except for the obligations pursuant to Clause 4 above and will not ship copies of the Software to Customer as part of the License etc.
- Nothing in this Agreement has the effect of assigning or transferring any title to intellectual property rights to Customer. Customer does not acquire any right to use the Software in excess of the scope and/or duration of the License.
- The Customer acknowledges, that the Software might contain open source components, including but not limited to the backend of the Software. To the extent the Software includes any open source software, Customer’s license with respect to each item of the open source software will be governed exclusively by the applicable open source software license associated with the respective open source software, regardless of any other provisions of this Agreement. Without limiting the foregoing sentence, Customer recognizes that the only warranties and representations respecting the open source software are those provided in the applicable open source software license. No provisions herein concerning infringement and indemnity shall apply to such open source software, and Basking.io shall bear no responsibility or liability whatsoever related to its supply of or Customer’s use of such software. Identification of and licenses for open source software may be found in the Software, or in libraries provided with the Software, or in links provided in the software or such libraries, or on the Website, or in other documentation provided or linked to by Basking.io .
- The Customer may subscribe for additional licenses by increasing the number of User Devices at any time subject to and in accordance with the following (each an “Additional License”, together “Additional Licenses”) according to this Clause 6 and the scheme and price list set forth in the License Sheet.
- The Customer may change the number of User Devices through the Admin Account only.
- Additional Licenses will be charged per additional User Device as set out in the License Sheet and will increase the applicable License Fee accordingly.
- The Customer may increase or reduce the number of User Devices at any time by submitting a respective request to Basking.io pursuant to the terms of this Clause 6 including the updated number of User Devices. The current License Fee shall be increased or reduced accordingly, as applicable, due to the price list set forth in the License Sheet. The amended number of User Devices shall then apply for the following applicable License Period.
- Upon respective request, Customer is obliged to give Basking.io information about the number of persons, who actually use the Software and are therefore considered User Devices without hesitation. Such information shall be given at least in text form (section 126b BGB) and in good faith.
- For any Additional License, Clauses 5, 8, 9.3 and 18 shall apply accordingly.
- Upon respective request by Customer and subject to a separate agreement between Customer and Basking.io within Basking.io’s sole discretion, Basking.io may provide supplementary services (the “Supplementary Services”).
- Customer shall provide any (technical or resource) requirement or information to and communicate with Basking.io to the extent necessary to provide the Supplementary Services.
- In order to use the Software and License the Customer must check all technical details and conditions on the Website and/or the License Sheet.
- The Customer shall be solely responsible for the fulfillment of the Technical Requirements . Basking.io does not owe and/or provide any consultancy services in connection therewith if not otherwise agreed with Basking.io.
- Customer shall provide any information to and communicate with Basking.io to the extent necessary to use the Software as agreed herein.
- Customer shall pay to Basking.io the License Fee as well as the Set-up Fee as each set out in Schedule 1 of this Agreement and/or the Website plus statutory VAT, if applicable.
- Basking.io is entitled to adjust the License Fee, in particular to increase it. However, such changes shall only be valid for subsequent license years/months. Basking.io shall notify Customer of the price increase at the latest eight (8) weeks before it becomes effective.
- If not otherwise agreed in Schedule 1, the Set-up Fee and/or the License Fee for each License Period (plus statutory VAT) shall each be payable in advance and in full at the beginning of each License Period and due within thirty (30) days upon Customer’s receipt of the applicable invoice from Basking.io.
- All payments due shall be made in Euro and, unless otherwise agreed upon in writing by the Parties, shall be made electronically by bank wire transfer to the banking institution, and account number provided by Basking.io.
- Fees as listed on the Website and/or in Schedule 1 are exclusive of taxes and expenses.
- Except for the rights granted hereunder and as set forth in 5.7 (open source) , the Parties agree that all Intellectual Property Rights in the Software shall remain with Basking.io.
- Customer shall use the Software in accordance with the intended purpose of the Software, the provisions of this Agreement, in accordance with any applicable statues, laws, and/or regulations and within the agreed scope of the Software. Customer may not except if necessary pursuant to sections 69d, 69e (1) nos. 1 to 3 German Copyright Law (Deutsches Urheberrechtsgesetz, UrhG) and within the limits of sec. 69 e (2) nos. 1 to 3 UrhG
(a) make the Software available in any manner to any third party for use in the third party’s business operations; (b)modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Software, or access or (c) use the Software in order to build or support, and/or assist a third party in building or supporting, products or services competitive to the Software; (d) use the Software to distribute illegal content and/or content that infringes the rights of any third parties; (e) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, or otherwise commercially exploit or make the Software available, to any third party.
- In case of a breach of Customer of this Clause 10 all rights granted by Basking.io to Customer hereunder shall automatically and immediately revert to Basking.io and any further use of the Software shall constitute an infringement of copyright.
- The services and Software provided by Basking.io shall be substantially in accordance with the description in this Agreement and/or its Schedules attached hereto. Rights in case of defect shall be excluded in the case of minor or immaterial deviations from the agreed or assumed characteristics and in the case of just slight impairment of use.
- In case of defects of updated, upgraded or new versions, the right of defect shall be limited to the new features of the update, upgrade or new version of the Software compared to the previous version release.
- Customer shall immediately report to Basking.io any defects of the Software.
- Customer’s claims against Basking.io under this Agreement because of defects are subject to a limitation period of twelve (12) months starting with the first access to the Software.
- Any claims for damages are subject to the limitations set forth under Clause 13.
- The Parties may enter into a separate service level agreement. Basking.io reserves the right to make such separate service level agreement mandatory for Customer.
- Each Party warrants to the other that: (a) it has the requisite corporate authority to enter into this Agreement and perform its obligations under this Agreement, and this Agreement does not conflict with any other agreement or obligation by which it is bound; and (b) it shall comply with all relevant laws and regulatory requirements, and obtain and maintain for the Term all permits and licenses applicable or necessary for the performance of its obligations under this Agreement.
- Notwithstanding the above, a Party shall promptly bring to the attention of the other, as the case may be, any information coming to its attention, that the provision of any part of the Software pursuant to this Agreement may infringe any Intellectual Property Rights, moral rights or other rights of a third party. In such event, the Parties shall mutually decide whether the provision of the Software or any part of them in question ought to be suspended until the matter is resolved.
- The Parties shall indemnify and hold each other harmless for any loss, damage, costs, expenses and liabilities that one party may suffer or incur as a result of a breach by the other party of the provisions of this Clause 12 and this Agreement, if the respective Party is responsible for the respective breach (“Vertreten müssen”).
- To the extent permitted by law, except as set forth below, in no event will the aggregate liability of Basking.io for damages, direct or otherwise, arising out of or in connection with this Agreement exceed the total value of the fees paid and payable by Customer to Basking.io for the applicable License Period prior to the date on which such liability arose, except that in the event that such liability arises at any time during the Initial Term, it will not exceed the total value of fees paid and payable by Customer to Basking.io for the Initial Term.
- To the extent permitted by law, except as set forth below, any and all of Customer’s claims against Basking.io under this Agreement are subject to a limitation period of twelve (12) months after the damage has occurred .
- 13.3 Basking.io shall only be liable for any loss or damages caused by willful intent (Vorsatz) or gross negligence (grobe Fahrlässigkeit), unless
● in cases of damages that result from injury to life, body or health;
● such loss or damage is caused by the infringement of a fundamental contractual duty by Basking.io, which is indispensable for the duly execution of the contract and thereby jeopardizes the achievement of the contract purpose, whereas such loss or damage is limited to the foreseeable damage at the time of the infringement;
● in case of liability provided by law, as under the Product Liability Act (Produkthaftungsgesetz);
● in cases of liability due to a guarantee.
- The limitations and/or restrictions of Basking.io’s liability shall also apply to the personal liability of its legal representatives, officers, employees, assistants in performance and agents.
- Each Party shall comply with the applicable data protection laws. If required, the Parties shall enter into separate data processing agreement(s).
- This right to use such Customer Data according to Sub-Clause 14.2 shall survive the termination of this Agreement.
- Customer acknowledges that Basking.io has no delivery obligation except for the obligations pursuant to Clause 4 above and will not ship copies of the Software to Customer as part of the License etc.
- Both Parties agree not to, and shall ensure that their employees, agents and advisors do not, disclose to third parties, nor use for any purpose other than as contemplated in this Agreement, any confidential or proprietary information arising or disclosed pursuant to this Agreement (including but not limited to the terms of this Agreement, the Parties’ trade secrets and information not generally known to the public such as business plans, strategies, practices, products, personnel and finances), except: (i) with the prior written permission of the Party to whom such information belongs; (ii) where the information is already known to, or obtained by independent means, or independently developed without reference to the other Party’s confidential information, by the recipient; (iii) is already in the public domain through no fault of the recipient; (iv) the recipient receives from a third person free to make such disclosure without breach of any legal obligation; or (v) the disclosure by both Parties to an affiliated company (in the meaning of sections 15 et seqq AktG) of either Party.
- This Clause 15 shall survive the termination of this Agreement for three (3) years after such termination. Notwithstanding the foregoing, a recipient may disclose confidential information of the other Party if required to do so by law, court order or request by any government or regulatory authority. In any of those events, the recipient will in advance and promptly inform the other Party about the requirement or respectively the request for disclosure.
- The Parties shall indemnify and hold each other harmless for any loss, damage, costs, expenses and liabilities that one party may suffer or incur as a result of a breach by the other party of the provisions of this Clause 15 (Confidentiality), if the respective Party is responsible for the respective breach (“Vertreten müssen”).
- In addition to any other remedy available at law or in equity, either Party may terminate this Agreement immediately upon written notice: (a) if the other Party breaches any warranty or material obligation of this Agreement and where such breach is curable fails to cure the breach within twenty (20) bank working days (Berlin) from the receipt of a written request to cure from the non-breaching Party; or (b) if the other Party ceases or threatens to cease to carry on all or a substantial part of its business, or becomes insolvent, or makes an assignment for the benefit of its creditors, or a trustee or receiver is appointed for its business or the Party’s property, or an order is made for the winding up of it (other than for the purposes of amalgamation or reconstruction).
- Basking.io shall be particularly entitled to immediately terminate this Agreement upon written notice if Customer is in default (“Verzug”) of payment of any fees for a period of more than six (6) weeks regarding annual payment of License Fee or 15 days regarding monthly payment of License Fee.
- Promptly upon termination of this Agreement and in any event within 30 days of termination each Party shall, if requested by the other Party, return or destroy all confidential and proprietary information referred to in Clause 15 (Confidentiality ).
- The termination of this Agreement for any reason whatsoever shall not affect any rights or liabilities that have accrued prior to or upon termination, nor shall it affect any Clauses or Sub-Clauses which are intended expressly or impliedly to continue after termination.
- In case of the termination of the Agreement, any rights of use granted to Customer for the Software shall expire immediately and Customer shall cease to use the Software.
- In case of the effective termination of the Agreement, which has not been caused by the infringement of a contract duty of Customer, Basking.io will refund any prepaid fees to Customer pro rata for the remaining time of the Term. In all other cases Customer cannot claim any refunds.
- A Party will not be liable to the other for any delay in or failure to perform its obligations as a result of any cause beyond its reasonable control. The Party so affected shall as soon as practicable: (a) notify the other Party of such fact and of the period of its continuance and consequences which are expected; and (b) take all reasonable action to minimize the consequences of the relevant events and to resume due performance of the obligations excused as soon as practicable.
- Unless otherwise agreed in this section, Customer may not assign any of its claims or rights under the Agreement or the entire Agreement without the prior written consent of Basking.io.
- A License does not cover products or business entities, including employees, acquired by Customer after acquiring the respective License. If Customer wishes to expand the License for such new products and/or entities, the Parties need to adjust the License conditions and fees accordingly in advance.
- In the event that Customer sells a part of its company, Customer is allowed to assign the current License to the new owner of the divested entity in order for it to continue to use the Software for the remaining time of the current Term, but Customer remains responsible for the duly execution of the respective License.
- Basking.io shall be entitled to assign its rights and duties under the Agreement, either in whole or in part, without prior consent, to any other entity. In the event of such an assignment Basking.io will remain fully responsible for the conduct of the assignee.
- Notice details: All notices by Basking.io to Customer will be delivered to the addresses given during the registration process on the Website and within the Admin Account with functions amended from time to time. All notices by Customer to Basking.io shall be made via the Admin Account or, only if such function is not available through the Admin Account, via email to firstname.lastname@example.org.
- Notices will be effective upon receipt if personally delivered, or on the third bank working day (Berlin) following the date of mailing or emailing. Any change of address of a Party will be promptly communicated in writing to the other Party. A Party may change its address for notice by providing written notice of such change to the other Party pursuant to this Sub-Clause 19.1.
- Costs. Each Party shall bear its own costs in connection with the execution of this Agreement and in relation to the fulfillment of its obligations under this Agreement.
- Amendments, Waivers. This Agreement may not be amended, modified or superseded, unless expressly agreed to by written instrument executed by both Parties, unless a stricter form is required by law. No provision of this Agreement may be waived except by an instrument in writing signed by the Party against whom the waiver is to be effective. If an instrument is delivered by any means of telecommunication, it shall only be deemed to be written, if the delivered copy bears the signature of the issuer. The failure of either Party at any time or times to require full performance of any provision of this Agreement will in no manner affect the right of such Party at a later time to enforce the same.
- Written notice. A (i) written instrument signed by the respective Party and delivered by letter, scan (email) or fax to the other Party or (ii) a notice made to the contact details pursuant to Sub-Clause 19.1 shall each be deemed a written notice within the meaning of this Agreement;
- Severability. If any of the provisions of this Agreement should be or become invalid or unenforceable in whole or in part for whatever reason, including a violation of any laws applicable to it, the validity of the other provisions hereof is not affected. In that case the invalid or unenforceable provision is deemed to be replaced by such valid and enforceable provision or arrangement that corresponds as closely as possible to the invalid or unenforceable provision and to the parties’ economic aims pursued by and reflected in this Agreement. The same applies in the event that this Agreement does not contain a provision necessary to achieve the economic purpose as expressed herein (Regelungslücke).
- Entire Agreement. This Agreement contains the Parties’ entire understanding and supersedes all prior agreements in connection with the subject matter of this Agreement.
- Schedules; Priority of documents. Any annex or Schedule attached hereto shall become an integral part of this Agreement. If an annex and/or Schedule is left blank or is missing, this Agreement (and its remaining annexes or Schedules) shall remain effective. In the event of any inconsistency between the terms of this Agreement and those in a Schedule, the latter shall prevail .
- Controlling Law, Place of Jurisdiction. This Agreement will be governed by the laws of the Federal Republic of Germany, excluding any conflict of law rules as well as the United Nations Convention on Contracts for the International Sale of Goods. Both Parties submit to the exclusive jurisdiction of the courts of Berlin.