General Terms and Conditions (GTC)
As of 19 March 2019
1. Scope and binding period
1.1. These General Terms and Conditions apply to business relations between Oxygen Technologies GmbH, Neuer Messplatz 3, 79108 Freiburg ("Oxygen") and its customers. Oxygen offers IT solutions to commercial customers in the energy industry for the transformation of the energy sector.
1.2. The content of the contract is always based on the offer documents prepared by Oxygen and accepted by the customer. In the event of any inconsistency between the offer documents and the GTC, the offer documents shall have priority.
1.3. Oxygen already objects here to the validity of any divergent general terms and conditions of the customer, e.g. in automated offer confirmations. Only the provisions of the contract apply.
1.4. Oxygen reserves the right to change these Terms and Conditions at any time. The customer will be informed of the changes by e-mail four weeks before the changes take effect. In this e-mail, the customer will receive the new GTC. He is entitled to object to the validity of the new GTC within four weeks after receipt of this e-mail. If the customer fails to object, the amended GTC will become part of the contract after the expiry of the four-week period. Oxygen will expressly inform the customer of this deadline when giving notification of the changes.
1.5. Oxygen is bound by a binding offer for fourteen (14) days from the date of submission of the offer, unless another period is mentioned in the tender documents.
2. Services and obligations of Oxygen
2.1. Oxygen provides the following services during the period of the contract, unless otherwise stipulated in the offer:
2.1.1 Provision/deployment of a modular SaaS cloud software solution "ELEMENTS Platform" ("ELEMENTS"). ELEMENTS consists of modules that can be booked individually by the customer. ELEMENTS usually comprises parts of the following services:
(1) Provision (i.e. initialisation, hosting and operation) of a cloud-based data management platform ("ELEMENTS Core");
(2) Deployment of client software for access by the customer to ELEMENTS Server Core ("Desktop Client");
(3) Provision of web-based software for access to ELEMENTS Server Core by the customer's end customer ("Web GUI");
(4) Provision/deployment of one or more additional software modules with various functionalities based on the above-mentioned services. The respective modules are described in the offer.
(5) Provision of embedded equipment for the purpose of connecting to an energy system / an energy meter / an energy storage device by the customer and the communication between energy system / energy meter / energy storage and the platform ("ELEMENTS Gates")
2.1.2 Remediation of faults in the ELEMENTS services. The medium of contact with Oxygen (Oxygen Help-Center) and the reaction times of Oxygen are stipulated in the offer and the separate service level agreement.
2.2 Individual ELEMENTS modules addressed to the end customer are to a certain extent individually adaptable by the customer ("White Labelling"). The possibilities of white labelling are regulated in the offer.
2.3 The provision of ELEMENTS is subject to certain conditions with regard to the technical infrastructure used by the customer and, if necessary, by their end customer. The customer will procure the necessary information about the essential functional features of ELEMENTS as well as the technical requirements and comply with them. Oxygen will notify the customer of any significant changes in the requirements for the technical infrastructure. The customer bears the risk of whether ELEMENTS meets his requirements and circumstances.
2.4 Oxygen provides further services in connection with the use of ELEMENTS (support, training, advice, etc.) but only in individual cases and to the extent that Oxygen, at its sole discretion, considers it possible and reasonable. The customer is not entitled to services of this kind, unless the offer stipulates otherwise.
2.5 Oxygen performs its services in accordance with the terms and conditions of the contract and in accordance with the accepted state of the art. Oxygen has the obligation to comply with technical or other standards only if these are expressly stated in the offer documents. These standards will then apply to the version in question when tenders are made. Performance dates or deadlines are binding for Oxygen only if they have been expressly designated as binding by Oxygen in writing. Further commitments by Oxygen on the availability and other quality parameters of the services are regulated in a separate service level agreement.
2.6 Oxygen is responsible for the organisation of the delivery of ELEMENT Gates to the end customer. For the rest, the ELEMENT Gates clause 3.7 applies.
2.7 Oxygen is not responsible for the costs incurred by the customer or its end customers as a result of WAN communication and/or field communication.
2.8 The agreed remuneration only covers the scope of services given in the offer documents. Additional services shall be calculated separately on the basis of the rates agreed in the tender documents, unless they are considered as relentless and commercially insignificant assistance. If the service description in the offer documents contains unintended gaps or ambiguities, Oxygen is entitled to adjust the service description accordingly at its reasonable discretion.
3. Obligations of the customer
3.1 The customer sees his obligations to cooperate as a prerequisite for the provision of services by Oxygen and thus as his contractual obligation. In particular, the customer must immediately take decisions on project implementation and project content and communicate these to Oxygen and is to examine changes proposed by Oxygen without delay.
3.2 The customer will inform Oxygen without being asked about typical and/or specific requirements and procedures for the respective industry and the company, unless these are not relevant for the provision of services. The customer will provide Oxygen with all technical and other documents and information necessary for the successful implementation of the project in good time without being requested to do so. Additionally, the customer will obtain the official approvals required for the implementation of a project in good time.
3.3 The customer shall designate in writing a contact person for Oxygen and an address and e-mail address at which communication with this person is ensured. The contact person must be able to make the necessary decisions for the customer or to bring them about without delay. The contact person is sufficiently trained in the operation and use of ELEMENTS and ensures good cooperation with the contact person at Oxygen.
3.4 If the parties agree to provide support services by Oxygen, the customer will take over the services of first and second-level support. As part of the support, the customer ensures that the operating settings on the energy systems and changes to these are coordinated with Oxygen in advance.
3.5 The customer will train his employees and vicarious agents to the extent necessary for IT security (based on the recommendations of the BSI-IT basic protection catalogue).
3.6 The customer shall ensure that his end-customers only use energy systems whose in-plant emergency control (so-called self-protection) is active. Oxygen bears no responsibility for controlling energy systems with no functional self-locking.
3.7 With regard to ELEMENTS Gates; unless otherwise agreed in the offer, the customer is responsible and bears the costs for
3.7.1 the installation and commissioning of the ELEMENTS Gate at its end-customers, including the hardware-side connection of the ELEMENTS Gate to smart meter gateways ("SMGw"), meters or energy plants,
3.7.2 providing an appropriate WAN communication channel (e.g. GSM, DSL) with or without SMGw,
3.7.3 the additional consumables (e.g. fuses and cables) necessary for this.
3.7.4 the replacement and return of defective and no longer needed ELEMENTS gates.
3.8 Prior to the return of defective ELEMENTS Gates to Oxygen, the customer will exclude causes resulting from the violation of clause 3
3.9 The customer will inform his end-customers that the control of energy systems by means of ELEMENTS may have an impact on the system manufacturer's warranty obligation; Oxygen is not responsible for this. In this context, Oxygen maintains cooperation with various plant manufacturers. An up-to-date overview of these cooperation partners is provided by Oxygen on request.
3.10 If the customer encounters safety problems or other disturbances that may have an impact on ELEMENTS and the other services provided by Oxygen, the customer will inform Oxygen immediately. This does not affect the customer's other obligations to prevent and mitigate damage.
3.11 If the customer does not fulfil an obligation or duty properly or on time and is therefore unable to provide Oxygen services in accordance with the contract, then the agreed execution periods shall be extended in accordance with the delay plus a reasonable period for the resumption of work. Oxygen will additionally charge the customer for the additional expenditure this entails, in particular for the extended provision of the personnel or material resources employed.
4. Prices and terms of payment
4.1 The prices stated in the offer documents are in euros plus the statutory value added tax valid at the time of performance and without deductions.
4.2 Travel expenses, expenses and other ancillary costs as well as expenses incurred for the provision of the contractually owed service by Oxygen will be charged additionally in accordance with the offer. Unless otherwise agreed in individual cases, Oxygen will charge travel times at 50% of the agreed hourly rate for travel to the customer's project locations and for travel to places that are required for the fulfilment of the contract after consultation with the customer.
4.3 Oxygen may adjust the agreed prices at the end of the first year of the contract at the latest at its own reasonable discretion if, for example, due to increased costs, the balance between performance and compensation shifts at oxygen's expense. Oxygen will notify the customer in writing of a planned adjustment no later than six (6) weeks before it takes effect. This notice sets out the reasons for the price adjustment taking into account cost-cutting effects. In the event of a price adjustment of more than five (5) percent, the customer has the right to terminate the contract by giving notice of four (4) weeks to the date when the price adjustment becomes effective.
4.4 Invoices are due for payment 14 days after receipt of the invoice. In case of doubt, invoices shall be deemed to have been received three working days after the invoice date.
5. Rights of use
5.1 The Customer (in the form of the employees and vicarious agents ("Users") designated by him for the use of the Software) shall receive a simple, non-transferable, non-sublicensable, spatially unlimited right of use of ELEMENTS software modules and other results of work provided under the Agreement and limited to the duration of the agreement. However, with respect to the Web GUI, Oxygen grants the customer the right of use in a form transferable to its end-customers
5.2 "Use" within the meaning of the said right of use means, with respect to ELEMENTS Core, the right to access this by means of ELEMENTS gates, the desktop client, the web GUI and/or any other modules via telecommunications and to use the functionalities associated with ELEMENTS software modules in accordance with this Agreement by means of the desktop client, the web GUI and/or any other modules. With regard to the desktop client and the web GUI, this means the right to install the required number of copies solely for the purpose of accessing the backend and to use the desktop client/web GUI as intended.
5.3 The customer does not receive any additional rights to the software modules of ELEMENTS.
5.4 The customer is not entitled to use ELEMENTS beyond the use permitted under this agreement or to have them used by third parties or to make them available to third parties. In particular, the customer is not permitted to reproduce, sell or transfer ELEMENTS software modules for a limited period of time, and especially not to rent or lend them.
5.5 Insofar as the software includes "Open Source Software" or edits of this software, the customer will receive rights of use in accordance with the relevant license terms for this software (e.g. "GNU General Public License") by way of derogation from clause 5.6. Both parties agree to comply with these license terms.
5.6 The customer is aware that Oxygen is constantly developing ELEMENTS software modules and provides at least the ELEMENTS Core and the Web GUI for use exclusively in the current version. The customer is not entitled to use a specific version of the ELEMENTS software modules. If the customer has to install updates himself, he will do so immediately after deployment.
6. Warranty for material and legal defects
6.1 Oxygen ensures that the services provided correspond to the quality agreed with the customer and can be used accordingly. With regard to the agreed quality and beyond, any assurance must be made in writing by Oxygen. Oxygen is not responsible for defects insofar as they are caused by the customer's infrastructure or the Internet.
6.2 Defects of the Software will be rectified by Oxygen within a reasonable time after the Customer has described to Oxygen the defect in such detail via the Oxygen Help Center that Oxygen can locate and reproduce the defect. The customer will assist Oxygen in limiting errors.
6.3 The warranty rights of the customer are excluded insofar as he makes or has changes made to the software without the consent of Oxygen. This does not apply if the customer is entitled to make changes, in particular in accordance with Section 536 (2) of the German Civil Code (BGB) and all changes are professionally executed and documented in a comprehensible manner.
6.4 Oxygen warrants that the software and any yielded work results do not infringe on the rights of third parties in the event of contractual use by the customer. This warranty presupposes that the customer immediately informs Oxygen of third-party rights asserted against him in writing and leaves Oxygen to defend itself and negotiate settlements. The customer will provide Oxygen with reasonable support free of charge, in particular providing the necessary information for this purpose. The customer's legal objections remain unaffected. Rights in this sense are only those which are the property of the third party in the Federal Republic of Germany.
7.1 Oxygen is liable without limitation for grossly negligent or intentional damage caused by Oxygen, its legal representatives or vicarious agents. Oxygen is also liable without limitation for damages resulting from culpable injury to life, body or health.
7.2 Oxygen shall only be liable in cases of simple negligence in the event of a breach of essential contractual obligations, the breach of which jeopardises the purpose of the contract and on whose fulfilment the customer was entitled to rely in particular (so-called cardinal obligations). This liability is limited to compensation for damages that were typically foreseeable at the time of conclusion of the contract. The parties may agree on a further limitation of liability for all cases of slight negligence in the tender documents on a case-by-case basis.
7.3 The above limitations of liability also work for the benefit of the legal representatives and employees of Oxygen and also apply in the case of pre-contractual or tortious liability.
7.4 Oxygen continuously maintains liability insurance with a cover amount of EUR 2,000,000.00 per claim for property damage (EUR 4,000,000.00 per insurance year), EUR 5,000,000.00 per claim for operating, product and environmental liability claims (EUR 10,000,000.00 per insurance year). In addition, Oxygen has insurance for cyber damage, the amount of which is not quantified here for security reasons. Oxygen provides proof of insurance on request.
8. Confidentiality and data protection
8.1 The parties will keep secret all confidential information of the other party which is brought to their attention in the course of the cooperation, i.e. protect with due care from the knowledge of unauthorized persons. For the purposes of this Regulation, the subcontractors and employees of Oxygen are not authorised to use the contract. The parties undertake to include only those employees or third parties in the cooperation whom they have previously committed to confidentiality in a comparable form.
8.2 All information of a party is confidential, regardless of its form, which is marked in writing as confidential or whose confidentiality is obvious by its nature, in particular business and trade secrets. This also includes the terms of the cooperation and the contract documents.
8.3 Non-confidential information is that which the received party can prove is either (i) generally accessible or was, (ii) was already in the possession of the party without any obligation of confidentiality, (iii) was independently and without the use of confidential information developed by another party or (iv) the information was lawfully acquired by a third party that was not obliged to maintain confidentiality.
8.4 Confidentiality obligations remain in place for five years beyond the end of the respective contract.
8.5 Any pre-existing confidentiality agreements between the parties terminate at the beginning of the contract and are replaced by the provisions of this clause 8.
8.6 Oxygen is entitled to use the energy-related data generated and processed in the course of the provision of services in an anonymised form for an unlimited time, unlimited space and unlimited content (i.e. also after the end of the contract).
8.7 The parties will comply with the applicable rules on the protection of personal data. Insofar as Oxygen, in its order processing capacity, processes personal data of the customer, in particular its end customers, the parties shall conclude an agreement for order processing (see Annex to these GTC).
8.8 In addition, see Appendix to these Terms and Conditions for the data protection declaration for the processing of personal data of the customer
9. Duration and termination
9.1 if Oxygen begins to provide the service earlier, the date of commencement of service is the date of acceptance of the offer by the customer, even if a different date is given in the offer
9.2 Contracts may be terminated by both parties at any time by giving a notice of six months in writing at the end of the month, unless otherwise stipulated in the contract documents.
9.3 Both parties have the right to terminate a contract in writing for a good reason,.
9.4 All terminations under this Agreement must be made in writing; the text form is not permitted. A submission of the notice of termination by fax or (as a scan) by e-mail is permitted.
9.5 At the end of the contract, all performance obligations of Oxygen in relation to ELEMENTS and any other agreed services shall end.
10.1 The parties may use their companies and company identifiers for each other publicly for reference purposes. The customer will submit oxygen relevant publications in advance for approval.
10.2 Oxygen is entitled at any time to use third parties to provide its services and to exercise its rights under this agreement.
10.3 If a written form is required in accordance with these terms and conditions, the text form shall suffice to comply with them, unless this is regulated differently in individual cases.
10.4 Agreements on changes to the contract of this Agreement must be made in writing (not in text form). A transmission of the respective documents by fax or e-mail is permitted.
10.5 German law applies. The place of jurisdiction is Freiburg.