General Terms and Conditions

1. Preamble
1.1 neoom switzerland ag (hereinafter also referred to as "neoom") is a stock corporation under Swiss law with its registered office in Zurich and its business address at Birkenstrasse 47 in 6343 Rotkreuz and UID CHE-293.515.184.
1.2 neoom CONNECT is a trademark of neoom international gmbh. neoom CONNECT is the Internet of Energy platform for intuitive, decentralised and predictive energy automation (hereinafter also referred to as "Platform" or "Software" for short or "CONNECT" in general).
1.3 neoom provides the software to its customers (hereinafter also referred to as "Contractual Partners") based on these General Terms and Conditions (hereinafter also referred to as "GTC"). The Contractual Partners shall subsequently make the software available to the respective end customer. The contractual relationship with the end customer is established between the Contractual Partner and the end customer.

2. Scope of applicability / subject matter of the contract
2.1 All services of neoom in connection with neoom CONNECT shall be performed exclusively based on these GTC in the respective valid version. It is expressly stated that only services provided by neoom in connection with neoom CONNECT are subject to these GTC. GTC or forms of the customer shall in no case become part of the contractual relationship.
2.2 It is noted that neoom in principle enters into business relationships only with neoom CONNECT or companies. The validity of these GTC for consumers is therefore excluded.
2.3 The contract partner declares with his signature, in particular on order forms, order confirmations, offers or other business papers of neoom, that he has had the opportunity to take note of the content of the GTC and that he agrees with the content of the GTC. The GTC are available for download on the website under https://neoom.com/gtc-connect at any time, irrespective of a handover that has already taken place, and will also be sent upon request.
2.4 These GTC are binding for all present and future business transactions, even if no express reference is made to them.
2.5 Any regulations deviating from or supplementing these GTC must be made in writing and shall only become part of the contract if this has been expressly confirmed in writing by neoom. Otherwise, deviating or supplementary regulations only apply to the respective legal transaction and not to subsequent transactions.
2.6 The subject matter of the contract is the granting of the use of the software in the Contractual Partner’s company or by its customers via the Internet in return for payment and limited in time to the duration of the contract as well as the provision of storage space on the servers of neoom or the provider.
2.7 neoom provides the neoom CONNECT software as a web-based solution. The software and the components contained therein can be used with the current standard browsers (in particular Google Chrome, Microsoft Edge, Mozilla Firefox). neoom recommends the browser "Google Chrome" for the use of neoom CONNECT.
2.8 The Contractual Partner shall be provided with the access data (user names and passwords) required to use the software or it may choose these itself within the scope of the order. The access data may only be passed on by the Contractual Partner to the agreed users. For the rest, they are to be stored securely and kept secret.

3. Placing of orders, conclusion of contracts
3.1 The Contractual Partner orders the software by e-mail, by telephone or directly on the platform. The order of the Contractual Partner shall only be deemed accepted with the order confirmation by neoom, whereby a contract shall come into existence. The acceptance of the offer by the Contractual Partner is exclusively based on these GTC. Any verbal agreements made between neoom and the Contractual Partner prior to the conclusion of the contract shall be deemed cancelled upon conclusion of the contract.
3.2 The presentation of products and/or services on the homepage, in brochures etc. does not constitute a legally binding offer, but is an invitation to make an offer. The content of the brochures, advertising announcements etc. distributed by neoom does not become part of the contract, unless neoom has expressly referred to it.
3.3 Offers and other declarations by neoom are subject to change unless they are expressly designated as binding. Limitations of offers by the Contractual Partner shall be deemed not to have been accepted.

4. Scope of services and performance periods
4.1 Upon conclusion of the contract, the Contractual Partner may choose between offers of different scope with regard to the range of services offered by neoom with respect to the software. The offers are visible on the website. The scope and the costs are determined by the respective offer selected by the Contractual Partner. Ancillary obligations to the service exist for neoom only after written agreement.
4.2 Neoom expressly reserves the right to change or adapt the content of the software, as far as this is necessary for technical reasons, especially in case of a changed interface definition.
4.3 The performance dates stated by neoom are non-binding, unless otherwise agreed in the offer. In the absence of any other contractual agreement, neoom shall provide the services without unnecessary delay, but in any case not later than 60 days after conclusion of the contract. In the event of a delay in delivery from the sphere of neoom, the contract partner is only entitled to set neoom a reasonable, but at least four weeks, deadline in writing, after the expiry of which he can withdraw from the contract. The contract partner is only entitled to withdraw from the entire contract if the partial fulfilment is not of interest to him. Fault on the part of neoom is not presumed in the case of default and is to be proven by the Contractual Partner.

5. Scope of services, software, storage space
5.1 Upon conclusion of the contract, the Contractual Partner may choose between offers of different scope with regard to the range of services offered by neoom with respect to the software. The offers are visible on the website. The scope and the costs are determined by the respective offer selected by the Contractual Partner.
5.2 neoom grants the contract partner the use of the respective current version of the software for the agreed number of authorised users via the internet by means of access through a browser.
5.3 neoom guarantees the functionality and availability of the software for the duration of the contractual relationship and will maintain it in a condition suitable for contractual use. The functional scope of the software as well as the conditions of use result from the offer selected within the framework of the conclusion of the contract.
5.4 neoom may update and further develop the software at any time and, in particular, adapt it due to a changed legal situation, technical developments or for the improvement of IT security. neoom will take the legitimate interests of the contract partner into account appropriately in doing so.
5.5 neoom does not owe an adaptation to the individual needs or the IT environment of the contract partner, unless the parties have agreed otherwise.
5.6 neoom is entitled to carry out technically necessary changes and unpostponable maintenance work on the software at any time and to restrict its operation for the implementation of changes to the necessary extent or to stop it for a short period of time.
5.7 neoom shall endeavour to achieve a maintenance of usability by the user at the time of the change of the software used when carrying out changes.
5.8 neoom will strive not to make changes to the system at times of high workloads.
5.9 neoom shall provide the Contractual Partner - insofar as this is agreed - with storage space on its servers for the storage of data and for the purpose of using the software. neoom shall ensure the retrievability of the data within the scope of the use of the software. The Contractual Partner guarantees that no rights of third parties are violated in the course of the use of this storage space, or passes this obligation on to his customers accordingly.
5.10 neoom will carry out backups in accordance with the state of the art for the protection of the data. neoom, however, does not have any custody or care obligations with regard to the data. The contract partner is responsible for a sufficient backup of the data.
5.11 All data of the contract partner will be stored by neoom for a period of three months after receipt of the termination of the contractual relationship for the contract partner and kept ready for retrieval, whereby no specific file format is promised by neoom. After the expiry of three months after receipt of the termination, neoom is entitled to delete the data, provided that the contract partner has been informed in the termination letter about the three-month period of storage including the availability for retrieval and the possible deletion thereafter. Personal data are excluded from these regulations. In the case of such data, the provisions of the Data Protection Act and the European General Data Protection Regulation shall apply exclusively. Also excluded from this regulation is data for which there is a legal obligation to retain it.

• Customised branding
• On-site or online configuration of the neoom CONNECT Software if this cannot be implemented by the Contractual Partner.
• Technical support outside general business hours (Monday - Friday, 08:00 - 18:00))
• On-site or online training courses
• Other specific consulting services

6.3 In the case of external assignments, personnel costs, travel costs, products and materials shall be charged according to the actual expenditure at the current hourly rates and prices. Informations on expenses in offers or order confirmations are non-binding estimates.
6.4 The prices agreed at the time of conclusion of the contract shall be charged. The terms and conditions agreed with the Contractual Partner shall apply in accordance with the applicable neoom CONNECT price list. The neoom CONNECT price list was handed over to the Contractual Partner prior to the conclusion of the contract and forms the basis of the present GTC.
6.5 Invoices issued by neoom are due 14 days after the invoice date without deduction and free of charges. Payments are deemed to have been made on the day on which neoom can dispose of them completely, irrevocably and freely. The receipt of payment on the account of neoom is decisive. Payments shall be credited first to compound interest, interest and ancillary expenses, pre-trial costs, then to outstanding capital, starting with the oldest debt, even if otherwise dedicated.
6.6 Subject to further claims, neoom is also entitled to demand immediate payment of all outstanding claims against the contract partner. Furthermore, neoom is entitled to withhold individual or all services until the complete payment of the purchase price or to block online accesses, if the contract partner is in default of payment.
6.7 In the event of default of payment, the Contractual Partner is obliged to reimburse neoom for all expedient pre-litigation costs incurred.
6.8 The Contractual Partner is not entitled to withhold payments due to incomplete total delivery, guarantee or warranty claims or complaints.

7. Obligations of the Contractual Partner
7.1 The Contractual Partner undertakes at its own expense to create and maintain the necessary technical infrastructure as well as the necessary organisational measures for the use of the offer provided by neoom in connection with neoom CONNECT. The Contractual Partner shall ensure that its IT infrastructure is adequately protected.
7.2 The Contractual Partner undertakes not to pass on his log-in data to third parties and to keep it protected from access by third parties. Irrespective of this, the contract partner undertakes to inform neoom immediately as soon as it becomes known that the log-in data is being used by third parties without authorisation. Neoom is entitled to block the access to the software, if the justified suspicion exists that the access data are used by unauthorised third parties. The contract partner will be informed about this and will receive the request to change the log-in data accordingly. The access data can be changed by the contract partner at any time. Neoom does not assume any liability for the use of the access data by the contract partner.
7.3 The contract partner undertakes to use the products and/or services in connection with the platform only within the scope of their intended purpose. In the event of infringement, misuse, illegal or unfair use of the software by the Contractual Partner, neoom reserves the right to terminate the contractual relationship immediately and without notice.
7.4 The improper use of the platform to read out, store or pass on personal data of other Contractual Partners and/or end customers for purposes other than the intended use of the software is prohibited. The Contractual Partner shall treat as confidential any information about other Contractual Partners and/or end customers that becomes known to it in the course of use.
7.5 The Contractual Partner shall be responsible for ensuring that the software is neither used in an unlawful manner nor that legal provisions or other obligations of any kind are violated by the use of the software.

8. Confidentiality
8.1 The contract partner hereby irrevocably undertakes to maintain secrecy about all business and trade secrets made accessible to him by neoom or in connection with the use of the software, or otherwise made known to him in connection with or on the basis of a business relationship or contact with neoom, and not to make these accessible to third parties in any way whatsoever without the consent of neoom. Furthermore, the contract partner undertakes to use information only on a "need to know" basis and only within the framework of the concluded contract.
8.2 The obligation to maintain secrecy shall remain in force for three years after the termination of the business relationship with neoom or, irrespective of a business relationship, for three years after the submission of an offer by neoom.
8.3 For each breach of these obligations (during the term of the contract and in the period thereafter, irrespective of fault), the customer shall owe a Contractual Penalty of CHF 30,000. Payment of the contractual penalty shall not release the customer from compliance with the obligation. The right to assert further claims for damages is expressly reserved.

• Misuse shall be deemed to have occurred in particular if the Contractual Partner intentionally or through gross negligence introduces into the software content that glorifies violence or pornographic content of any kind, viruses or other malware.
• In this context, neoom is entitled to delete contents made available by the contract partner if there is a reasonable suspicion that an infringement of rights has been committed by the contract partner.
• The Contractual Partner of neoom warrants that the contents provided by the Contractual Partner do not violate legal provisions. Furthermore, the user warrants that all contents entered into the software by the Contractual Partner do not violate copyrights, name rights or trademark rights of third parties.

9.8 The Contractual Partner of neoom undertakes to indemnify and hold neoom harmless against all claims of third parties that have arisen due to misuse (item 9.7).
9.9 For standard software supplied, those licence conditions shall apply which the Contractual Partner concludes directly with the respective software manufacturer.
9.10 neoom does not grant its Contractual Partner any rights to the source code under any circumstances. This may not be edited, changed, copied or processed in any way.
9.11 neoom provides the neoom CONNECT software as a web-based solution. The software and the components contained therein can be used with the current standard browsers (in particular Google Chrome, Microsoft Edge, Mozilla Firefox). neoom recommends the browser "Google Chrome" for the use of neoom CONNECT.
9.12 neoom also uses open source software tools. A list of these open source software tools can be called up at any time on the neoom website together with details of the respective license.
9.13 The provisions of the Creative Commons License and the provisions of the Open Data Commons Open Database License shall not be limited by the provisions of these GTC in the event of inconsistencies. With regard to the open-source parts used in the software, the warranty and liability limitations of the aforementioned license provisions shall apply.

10. Copyrights
10.1 The software distributed by neoom is, insofar as parts of the software are not under open source, the intellectual property of neoom.
10.2 The subscription entitles the user to use the cloud-based software. The rights deriving therefrom are not transferable.

11. Performance disruptions
11.1 neoom does not warrant that the software is always error-free and fully functional and beyond the state-of-the-art prevailing in the professional EDP industry. It is expressly stated that on the part of neoom no guarantees and/or success risk assumptions, in particular however not exclusively in relation to a special suitability of the software for a certain purpose, are given.
11.2 neoom does not guarantee a certain response time of the software. Response time is understood to be the time between the sending of a request until the response of the software is reached.
11.3 neoom is entitled to carry out maintenance work on the software at any time and without prior notice (in particular by installing updates, maintaining databases and eliminating errors). The availability of the software is affected by the maintenance work. This maintenance work may also lead to a complete failure of the software. Restrictions in the availability of the software due to maintenance work do not entitle the Contractual Partner to assert a reduction in its obligation to perform, a claim for damages or a penalty.
11.4 The existence of defects is to be proven by the contract partner. The contract partner shall immediately (i.e. within a maximum of 5 days) give notice of any defects that occur to neoom in a specified manner and in writing.
11.5 It is expressly stated that in the event of a failure of the software or in the event of the occurrence of errors due to defects, neoom is not obliged to remedy the defect within a certain period of time.
11.6 In the event of a failure of the Software, or the failure of parts of the Software, the User shall not be entitled to assert a reduction of its obligation to perform, a claim for damages or a penalty.
11.7 In the event of the assertion of warranty claims by the contract partner, neoom is entitled to determine the type of warranty (improvement, exchange, price reduction or conversion) itself.
11.8 neoom does not provide any warranty for the data provided in connection with the software (in particular but not exclusively energy efficiency, energy consumption, etc.).
11.9 The contract partner has to ensure that the data collection is carried out properly and that the data is communicated to neoom regularly and in due time.
11.10 neoom does not assume any liability for defects that lie within the sphere of the Contractual Partner and/or end customer, such as in particular, but not exclusively, in relation to their hardware or internet connection.

12. Liability
12.1 neoom shall only be liable for direct damages in connection with the use or availment of the products and/or services offered and only if they have been caused by intent or gross negligence.
12.2 Liability shall become time-barred six months after the Contractual Partner has become aware of the damage and the damaging party.
12.3 neoom shall not be liable for indirect damages, in particular loss of profit, loss of interest, failure to make savings, consequential and pecuniary damages, damages from third party claims as well as for the loss of data and programmes and their recovery.
12.4 The contract partner undertakes to indemnify neoom against all third party claims made against neoom in connection with the contractual relationship with the contract partner and/or the contract partner's end customer, as well as in relation to all costs resulting therefrom. The contract partner is furthermore obliged to defend neoom in the defence of the aforementioned claims and to work towards ensuring that claims of third parties are asserted directly against him/herself.
12.5 If, in whatever case, a penalty or a contractual penalty has been agreed at the expense of neoom, this is subject to the judicial right of moderation. The assertion of damages exceeding the penalty or other further claims against neoom is excluded in this case..

13. Data protection
In the course of using the software, personal data of Contractual Partners and/or end customers are processed. The data protection declaration, available at neoom.com/privacy-connect, contains more detailed explanations.

14. Waiver of appeal
The Contractual Partner waives, insofar as permissible under mandatory law, to contest contracts with neoom, to demand their adjustment or to assert conversion.

15. Amendment of the GTC
15.1 In accordance with the provisions of this item, neoom is entitled to amend the GTC at any time and without stating reasons.
15.2 neoom shall notify the Contractual Partner by e-mail of the entry into force of the new GTC. The new GTC are deemed to be agreed if the customer has not objected to their validity within 14 days after receipt of the e-mail. The objection must be made in writing and can also be made by e-mail. The Contractual Partner shall be informed in the e-mail of the possibility of objection, the deadline and the consequences of inaction. In case of a timely objection, the contractual relationship can be terminated by neoom as well as by the Contractual Partner.
15.3 In the event of a conflict between these GTC and the respective supplementary provisions, the supplementary provisions shall take precedence in the individual case.
15.4 The current version of the GTC shall apply. These are available on the website at neoom.com/gtc-connect.

• generally announced maintenance or other services (updates, patches, bug fixes) that prevent availability;
• Adjustments, changes and additions to the contractual application as well as measures that serve to determine and remedy malfunctions will only lead to a temporary interruption or impairment of the availability if this is absolutely necessary for technical reasons;
• Maintenance work that becomes necessary unexpectedly, if this work was not caused by a breach of neoom's obligations to provide the service (force majeure, in particular unforeseeable hardware failures, strikes, natural events, etc.);
• Downtimes due to virus or hacker attacks, insofar as neoom has taken the agreed or, in the absence of an agreement, the usual protective measures;
• Downtimes for the installation of immediately necessary security patches;
• Downtimes caused by third parties or persons not attributable to neoom.

16.5 The Contractual Partner shall immediately report functional failures, malfunctions or impairments of the application to the corresponding contact details. Fault reporting and rectification is guaranteed during the stated service hours.

17. Miscellaneous
17.1 These GTC shall be governed exclusively by Swiss law to the exclusion of international rules of reference and the UN Convention on Contracts for the International Sale of Goods.
17.2 The exclusive place of jurisdiction for all disputes arising from or in connection with these GTC - including disputes regarding their existence or non-existence - is the relevant court at the registered office of neoom.
17.3 Should any provision of these GTC be or become legally invalid or unenforceable in whole or in part, this shall not affect the legal validity of all other business provisions. The Contractual Partner shall replace the legally invalid or unenforceable provision with a valid and enforceable provision that comes as close as possible to the content and purpose of the legally invalid or unenforceable provision.
17.4 The offsetting of the Contractual Partner against claims of neoom with counterclaims of any kind whatsoever is excluded.
17.5 The use of subcontractors by neoom is always permitted.