General Terms and Conditions

1. General provisions, scope, form
1.1 Contractual partner, scope of application
neoom germany GmbH (hereinafter also referred to as "neoom") is a limited liability company registered in the Commercial Register B of the District Court of Munich under HRB 266045 with its registered office in Nürnberg and its business address at Königstorgraben 11,
90402 Nürnberg, Germany. neoom CONNECT is a trademark of neoom international gmbh, FN 421620 f, Galgenau 51, 4240 Freistadt, Austria. neoom CONNECT  is the Internet of Energy platform for intuitive, decentralised and predictive energy automation (hereinafter also referred to as "Platform" or "Software" or generally "CONNECT"). These General Terms and Conditions ("GTC") shall apply to all business relations of neoom with its contractual partners ("Customers") regarding the subject matter of the contract pursuant to clause 2 and the associated provision of the software and other services by neoom. It is expressly stated that only services of neoom in connection with neoom CONNECT are subject matter of these GTC. The GTC shall only apply if the Customer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law. The Customer either uses the software itself or subsequently makes the software available to an end Customer, if applicable. The contractual relationship with the end Customer comes into force between the Customer and the end Customer, but not with neoom itself in the absence of any other agreement.
1.2 Retrievability and validity of the general terms and conditions of neoom
The version of the GTC valid at the time of the conclusion of the contract, which the Customer can also retrieve on neoom's website, is decisive. The GTC in the respective version shall also apply as a framework agreement for future contracts with the Customer, without neoom having to refer to them again in each individual case. The respective current version of the GTC is available for download on the website at neoom.com/gtc-connect and will also be sent upon request.
1.3 Deviating conditions of the Customer
neoom's GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the Customer shall only become part of the contract if and insofar as neoom has expressly agreed to their validity. This requirement of consent shall apply in any case, for example also if neoom renders the service without reservation in knowledge of the Customer 's general terms and conditions.
1.4 Deviating agreements with the Customer
Individual agreements made with the Customer in individual cases (including subsidiary agreements, supplements and amendments) have priority over these GTC in every case. For the content of such agreements, subject to proof to the contrary, a written contract or neoom's written confirmation is decisive.
1.5 Form of declarations
Legally relevant declarations and notifications of the Customer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or termination or reduction) are to be made in writing, i.e. in written or text form (e.g. letter, e-mail, fax). Legal formal requirements and further proof, in particular in the case of doubts about the legitimacy of the person making the declaration, remain unaffected.
1.6 Applicability of statutory provisions
References to the applicability of statutory provisions are for clarification purposes only. Therefore, even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GTC.

2. Subject matter of the contract
The subject matter of the contract is the granting of the use of the software in the Customer 's company or by the Customer's customers via the Internet and the provision of storage space on the servers of neoom or the provider, respectively, in return for payment and limited in time to the duration of the contract. neoom provides the software neoom CONNECT 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). The browser "Google Chrome" is recommended by neoom for the use of neoom CONNECT. The access data required for the use of the software (user names and passwords) shall be transmitted to the Customer or the Customer may choose these himself within the scope of the order. The access data may only be passed on by the client to the agreed users. For the rest, they are to be kept safe and secret. Open source software tools are also used by neoom. A list of these open source software tools can be called up on neoom's website including the respective licence at any time. The provisions of the Creative Commons Licence and the provisions of the Open Data Commons Open Database Licence shall not be restricted by the provisions of these GTC in the event of contradictions. With regard to the open source parts used in the software, the warranty and liability limitations of the respective licence conditions apply.

3. Conclusion of contract
3.1 Presentation and advertising by neoom
neoom's offers are subject to change and non-binding. This also applies if neoom provides the Customer with catalogues, technical documentation (e.g. drawings, plans, calculations, calculations, etc.): Drawings, plans, calculations, references to DIN standards), other product descriptions or documents - also in electronic form - to which neoom reserves property rights and copyrights.
3.2 Offer of the Customer
The order of the software by the Customer is considered a binding offer of contract. The Customer can order the software by e-mail, by telephone or directly on the platform. Unless otherwise stated in the order, neoom is entitled to accept this contractual offer within 4 weeks after receipt by neoom.
3.3 Acceptance by neoom
The acceptance can be declared either in writing (e.g. by order confirmation) or by providing the software to the Customer.
3.4 Content of contract
The content of brochures, advertising statements, etc. issued by neoom shall not become part of the contract, unless neoom has expressly referred to them.

4. Provision time, reservation of self-delivery
4.1 Time of provision
The time of readiness for delivery is agreed individually or stated by neoom upon acceptance of the order. In the absence of any other contractual agreement, neoom shall provide its contractual services no later than 60 calendar days after conclusion of the contract, subject to the professional installation of hardware at the Customer 's premises.
4.2 Default
The occurrence of neoom's default with its performance is determined according to the legal regulations. In any case, however, a reminder by the Customer is required.

5. Scope of service, software, storage space
5.1 Scope of services
Upon conclusion of the contract, the Customer may choose between offers of different scope with regard to neoom's service offer concerning the software. The offers can be seen on the website. The scope and the costs are determined by the offer chosen by the Customer.
5.2 Software version owed
neoom grants the Customer the use of the most current version of the software for the agreed number of authorised users via the Internet by means of access through a browser.
5.3 Functionality and availability
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 chosen within the framework of the conclusion of the contract.
5.4 Updating and further development of the software
neoom can update and further develop the software at any time and adapt it in particular due to a changed legal situation, technical developments or for the improvement of the IT security. neoom will consider the justified interests of the Customer appropriately.
5.5 Adaptation of the software to the individual needs of the Customer
An adaptation to the individual needs or the IT environment of the Customer is not owed by neoom, unless the parties have agreed otherwise.
5.6 Maintenance
neoom will carry out regular maintenance of the software and inform the Customer in due time. The maintenance is regularly carried out outside the usual business hours of the Customer, unless due to compelling reasons a maintenance must be carried out at another time.
5.7 When carrying out changes, neoom will endeavour to achieve a maintenance of the usability by the user at the time of the change of the software used.
5.8 neoom will endeavour not to make changes to the system at times of high workload.
5.9 Storage space provided by neoom
neoom shall provide the Customer with storage space on its servers for the storage of data and for the purpose of using the software, insofar as this has been agreed. neoom shall ensure the retrievability of the data within the scope of the use of the software. The Customer 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 Responsibility for data security
neoom will carry out backups according to the state of the art for the protection of the data. neoom does not, however, have any custody or care obligations with regard to the data. The Customer is responsible for a sufficient backup of the data.
5.11 Data of the Customer
All data of the Customer will be kept by neoom for a period of 3 months after receipt of the termination of the contractual relationship for the Customer 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 Customer was 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 this case, only the provisions of the Federal Data Protection Act and the European General Data Protection Regulation apply. Also excluded from this regulation is data for which there is a legal obligation to retain it (for example, tax or commercial law requirements).

6. Scope of use and granting of rights of use
6.1 No physical transfer of software
There shall be no physical transfer of the software to the Customer.
6.2 Users, sub-licenses
6.2.1 The Customer is entitled to use the software for his own use within the scope of his business operations within the EU/EEA (hereinafter referred to as the "Contractual Territory").
6.2.2 The Customer is entitled to access the software via an Internet browser or, if an app is also offered and provided, to make this client component of the software available to the authorised users for use. The rights of use are limited to the authorised users (named user concept). The authorised users may run the software by calling up the web-based software and use it by accessing it via the user or application interfaces provided for this purpose but may not otherwise reproduce it. The use of the software outside the contractual territory is prohibited. neoom grants the Customer the non-exclusive right to use the delivered software exclusively for the purpose agreed upon with the Customer. The right of use is limited to the agreed period; in the absence of such an agreement, the right of use is unlimited in time. Subject to mandatory statutory law, the Customer is not authorised to reproduce, modify, supplement, compile or recompile the delivered software in whole or in part. Excepted from this are copies for archiving, backup or for purposes expressly permitted in writing by neoom. All copies must contain the same copyright notices as the originals.
6.2.3 "Use" within the meaning of this agreement is any permanent or temporary complete or partial duplication (copying) by loading, displaying, running, transferring to the main memory or storing of the cloud solution for the purpose of its execution on the server of the cloud provider and/or for the software provided to the Customer on his hardware. Use also includes the performance of the aforementioned actions for the purpose of observing, examining or testing the programs provided.
6.2.4 Insofar as programs are made available to the Customer within the framework of the web-based software, changes to the programs and error corrections are permissible to the extent that they are necessary for the intended use of the programs. A reverse translation (decompilation) of the program code into another form of presentation is prohibited. Excepted from this is a partial translation for the purpose of establishing the interoperability of an independently created computer program with a computer program provided or with other computer programs under the restrictions specified in § 69e UrhG (German Copyright Act).
6.2.5 Unless otherwise agreed (e.g. for the purpose of resale to end Customer s), the Customer is not entitled to transfer the rights granted in sections 6.2.1 to 6.2.4 to third parties or to grant third parties corresponding rights of use. The Customer undertakes not to make accessible to third parties, to rent out or otherwise permit the use for their own purposes or even to act as a service provider vis-à-vis third parties without the express written consent of neoom. This also applies in the case of a complete or partial sale or dissolution of the Customer's company. Employees of the Customer or other persons are not deemed to be third parties as long as they are present at the Customer's premises for the contractual use of the cloud solution for the Customer's purposes. In case of transfer of the rights to third parties (e.g. due to a corresponding contractual agreement with neoom), the Customer shall in turn impose the obligations imposed on him in these terms and conditions on the third party.
6.2.6 Notwithstanding the rights of use granted according to clause 6.2, neoom shall retain all rights to the software of the cloud solution.

7. Support
neoom shall set up a support service for Customers for enquiries regarding functions of the software. Enquiries can be made via the support hotline indicated on the website of neoom during the times indicated there or via e-mail.

• Generally announced maintenance or other services (updates, patches, bug fixes), by which the availability is prevented; 
• Adaptations, changes and additions to the contractual application as well as measures which serve to determine and remedy malfunctions will only lead to a temporary interruption or impairment of availability if this is absolutely necessary for technical reasons.
• Unforeseeably necessary maintenance work, 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.

8.3 Notification of malfunctions
The Customer has to report functional failures, malfunctions or impairments of the application immediately to the corresponding contact data according to clause 7. If this cooperation is not provided, § 536c of the German Civil Code (BGB) shall apply accordingly, insofar as applicable. Fault reporting and rectification is guaranteed during the service hours specified in this clause.

9. Obligations of the Customer
9.1 Protection of the access data by the Customer
The Customer shall protect the access data transmitted to him against access by third parties and keep them safe in accordance with the state of the art. The Customer shall ensure that the access data is only used within the contractually agreed scope. Unauthorised access is to be reported to neoom immediately. neoom is entitled to block the Customer's access to the software if there is a justified suspicion that the access data is being used by unauthorised third parties. The Customer will be informed of this and will be requested to change the log-in data accordingly. The access data can be changed by the Customer at any time. neoom does not assume any liability for the use of the access data by the Customer.
9.2 Prohibition of misuse and confidentiality
The Customer undertakes to use the products and/or services in connection with the platform only within the scope of their intended purpose. In case of violation, misuse or illegal use of the software by the Customer, neoom reserves the right to terminate the contractual relationship immediately and without notice - if necessary after issuing a warning.
9.3 Duties of the Customer with regard to the storage space made available to him
9.3.1 The Customer is obliged not to store any data on the storage space made available, the use of which violates applicable law, official orders, the rights of third parties or agreements with third parties.
9.3.2 The Customer shall check the data for viruses or other harmful components before storing them or using them in the software and shall use state of the art measures (e.g. virus protection programs) for this purpose.

10 Warranty
10.1 Application of the warranty provisions of tenancy law
With regard to the granting of the use of the software and the provision of storage space, the warranty provisions of tenancy law (§§ 535 ff. BGB) shall apply.
10.2 Obligation to report defects by Customers
The Customer has to notify neoom immediately in writing of any defects.
10.3 Right to rectification of defects
In case of considerable deviations from the service description, neoom is entitled to rectification and, as far as this is not connected with unreasonable expenditure, is also obliged to do so.
10.4 Cooperation of the Customer
The Customer is obliged to provide neoom with verifiable documents on the type and occurrence of defects and to cooperate in the containment of defects.
10.5 Insignificant reductions, liability without fault
The warranty for only insignificant reductions in the suitability of the service is excluded. The strict liability according to § 536a para. 1 BGB (German Civil Code) for defects already existing at the time of conclusion of the contract is excluded.
10.6 No liability for defects caused by the Customer
neoom assumes no liability for defects caused by the Customer and / or end Customer, such as in particular but not exclusively in relation to its hardware or Internet connection.
10.7 No warranty for use under deviating conditions of use
The warranty does not cover defects caused by deviations from the conditions of use provided for the cloud solution and specified in the service description.

11. Defects of title, indemnification
11.1 No infringement of third party rights, indemnification
neoom warrants that the software does not infringe any rights of third parties. neoom shall indemnify the Customer against all claims of third parties due to infringements of property rights for which the Customer is responsible in connection with the contractual use of the software upon first request and shall reimburse the Customer for the costs of an adequate legal prosecution. The Customer shall inform neoom without delay of any claims asserted against him by third parties on the basis of the contractual use of the software and shall grant him all necessary powers of attorney and authority to defend the claims.
11.2 Deposited Contents and Data of the Customer, Indemnification by the Customer
The Customer assures that the contents and data stored on the servers of neoom as well as its use and provision by neoom, do not violate applicable law, official orders, rights of third parties or agreements with third parties. The Customer shall indemnify neoom from claims asserted by third parties on the basis of a violation of this clause on first demand.

12. Liability
12.1 Unlimited liability by neoom
The parties are liable without limitation in case of intent, gross negligence as well as culpable injury to life, body or health.
12.2 Limited liability in case of slightly negligent breach of duty
Notwithstanding the cases of unlimited liability pursuant to section 12.1, the parties shall only be liable to each other in the event of a slightly negligent breach of duty in the event of a breach of essential contractual obligations, i.e. obligations the fulfilment of which is a prerequisite for the proper performance of the contract or the breach of which jeopardises the achievement of the purpose of the contract and compliance with which the other party may normally rely on, but limited to the damage foreseeable at the time of conclusion of the contract and typical for the contract.
12.3 Exception to limitation of liability
The above limitations of liability shall not apply to liability under the Product Liability Act or to guarantees given in writing by one of the parties.
12.4 Application of liability rules in favour of certain persons
Clause 12 shall also apply in favour of employees, representatives and organs of the parties.

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

13.3 Costs for field work
In the case of field work, personnel costs, travel costs, products and materials shall be charged according to the actual expenditure at the current hourly rates and prices. The information on expenses in offers or order confirmations for field work are non-binding estimates. neoom also reserves the right to agree on lump sums.
13.4 Price list and amount of the prices to be charged
The prices to be charged are those agreed upon at the time of the conclusion of the contract. The conditions agreed with the Customer according to the respectively applicable price list shall apply. The price list was handed over to the Customer prior to the conclusion of the contract and forms the basis of the present GTC.
13.5 Due date of invoices
Invoices issued by neoom for exclusive additional services are due 14 calendar days after invoicing and service provision, invoices with which the provision of the software is invoiced (clause 13.1) are due within 14 calendar days after invoicing without deduction and free of charge, unless otherwise contractually agreed (neoom CONNECT  pre-paid and post-paid models).
13.6 Timely payment
Fulfilment by transfer of the payment amount occurs only at the time at which the amount is credited on the account of neoom and she receives the amount finally for free disposal. The receipt of payment on the account of neoom is decisive. Payment in discharge of debt has to be made exclusively to the account stated in the invoice.
13.7 Agreement of advance payment for exclusive additional services
neoom is however, also in the context of a current business relation, at any time entitled to carry out the service completely or partly only against prepayment. A corresponding reservation declares neoom at the latest with the order confirmation.

• The Customer is in arrears for more than two months with the payment of the remuneration or a not insignificant part of this remuneration;
• The Customer exceeds the rights of use stipulated in clause 6. This applies in particular if he transfers the software to a third party without authorisation and/or acts as a provider vis-à-vis such third party;
• The Customer breaches the confidentiality obligation set out in Clause 16.

A right of termination according to the aforementioned indents is only entitled to neoom without a warning under setting of a reasonable period of time for the submission of a cease-and-desist declaration if the behaviour has led to a lasting loss of confidence in the Customer's adherence to the contract.
14.4 Retransfer of data after termination
neoom shall provide the Customer with reasonable support for the retransfer or backup of data at the Customer's expense after termination of the contract. Point 5.9 applies.

15. Data protection
The parties shall comply with the applicable data protection regulations. The Customer shall pay particular attention to whether it has to obtain the consent of the data subjects for the transfer of data and shall obtain such consent if necessary. The rights of the Customer as data subject, the processed data categories, the processing purposes and the justification reasons are explained in the data protection declaration of neoom. The current version of the data protection declaration is available on neoom's website neoom.com/privacy-connect at any time.

• which is marked as confidential or is marked in a comparable manner or
• which has been designated as confidential when communicated orally or visually and which is summarised in writing and marked "confidential" within thirty (30) days of such communication; or
• received by a party on the occasion of a visit to the other party's business, or to a business associated with the other party, and identified as confidential; or
• the confidentiality of which arises from the nature of the matter, which is not generally known and in the non-disclosure of which the disclosing party has a legitimate interest from the point of view of an objective recipient who, exercising the diligence of a prudent businessman, takes into account the nature of the information, the specific circumstances and the manner in which it was disclosed. (hereinafter referred to as "Confidential Information"), to keep it permanently secret, not to disclose it to third parties, to record it or to use it in any other way, unless the other party has expressly consented in writing to its disclosure or use or the information is required to be disclosed by law, court order or administrative decision.

• is or becomes in the public domain or in the public domain at the time of its disclosure to the Receiving Party (unless due to a breach of this Agreement by the Receiving Party);
• were already lawfully in the Receiving Party's possession without any duty of confidentiality before the Receiving Party received them from the Disclosing Party;
• was received by the Receiving Party from a third party who is entitled to disclose such information without restriction.
  The obligations under this clause shall survive the termination of this Agreement.

17. Non-assignment
The assignment of the rights and obligations under this Agreement shall only be permitted with the prior written consent of neoom.

18. Counter rights
18.1 Set-off
The Customer is not entitled to offset against claims of neoom, unless the Customer's counterclaims are legally established or undisputed. The Customer is also entitled to set-off against claims of neoom, if the Customer asserts notices of defects or counter-claims from the same contract.
18.2 Right of retention
The Customer may only exercise a right of retention if his counterclaim arises from the same contract.

• for damages resulting from injury to life, body or health,
• for damages from the injury of a substantial contract obligation (obligation, whose fulfilment makes the proper execution of the contract at all possible and on whose observance the contracting partner regularly trusts and may trust); in this case neoom's liability is limited however to the replacement of the predictable, typically occurring damage.

19.3 Liability for and towards other persons
The limitations of liability resulting from clause 19.2 also apply to third parties as well as in the case of breaches of duty by persons (also in their favour) whose fault neoom is responsible for according to legal regulations. They do not apply in the case of fraudulent intent or a guarantee assumed by neoom and for claims according to the product liability law.

• As far as neoom is obliged to establish a synchronisation of the application offered by neoom with the legal norms to be applied to it, in particular in case of a changed legal situation;
• As far as a change or deviation of the service is necessary in order to comply with a court decision, which was issued against neoom, or a decision by an authority;
• As far as the change is necessary in order to close security gaps;
• The change is only beneficial to the Customer; or
• The change is only of a procedural or technical nature without any significant impact on the Customer.

• The change only brings advantages for the Customer;
• The changes are exclusively due to technical or procedural requirements, unless this has a significant effect on the Customer;
• neoom makes the change in order to comply with a court decision or an official decision which is directed against neoom;
• As far as neoom integrates further, completely new services, whereby a service description in the general terms and conditions is required; unless the previous contractual relationship is adversely changed by this. neoom will inform the Customer about any changes in due time by e-mail and inform him about the possibility of objection, the deadline and the consequences of inactivity. In case of a timely objection, the contractual relationship can be terminated by neoom as well as by the Customer.

20.3. No change to your right of termination
The Customer's right to terminate the contract with neoom shall not be affected by any changes to the services or GTC.

21. Applicable law, place of performance, place of jurisdiction and severability clause
21.1 Choice of law
The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
21.2 Place of performance
In the absence of any other agreement, the place of performance, in particular for the performance by neoom and the payment by the Customer, is the registered office of neoom in Nürnberg, Germany.
21.3 Place of jurisdiction
If the Customer is a merchant in the sense of the Commercial Code, a legal entity under public law or a special fund under public law, the exclusive - also international - place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is Nürnberg, Germany. The same applies if the purchaser is an entrepreneur in the sense of § 14 BGB (German Civil Code). neoom is, however, also entitled in all cases to take legal action at the place of fulfilment of the performance obligation in accordance with these GTC or a prior individual agreement or at the general place of jurisdiction of the Customer. Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected.
21.4 Severability clause
Should any provision of this contract be invalid or unenforceable or become invalid or unenforceable in the future, the remaining provisions of this contract shall not be affected thereby.