§ 1 Scope of Application, Definition of Terms
(1) The following general terms and conditions (hereinafter: “T&C’s“) apply to all contracts and services that are concluded with Makula Technology GmbH (hereinafter: “Makula“), business address Bachstr. 12, ℅ Next Big Thing AG, 10555 Berlin, Germany, registered in the Commercial Register of the Charlottenburg District Court under HRB 228987 B. They set forth the terms and conditions under which Makula is willing to sell its software-as-a-service product (hereinafter: “SaaS” or “SaaS Service“) to Customers.
(2) These T&C’s shall apply exclusively to the contracts concluded with us. Any conflicting and/or additional general terms and conditions of the Customer are hereby rejected; they shall not apply unless we have expressly agreed to them in text form.
(3) These T&C‘s shall apply to all present and future contracts. This shall also apply if, in the case of future contract conclusions, the Customer is not again expressly informed by us of the application of these T&C’s.
§ 2 Offer and Conclusion of the Contract
(1) Contracts with Makula are concluded individually with the respective contractual partner by negotiating an order sheet. They become valid with the effective signature of both parties.
(2) Our employees are only entitled to agree on verbal agreements under the condition (condition precedent) that these agreements are confirmed by us immediately and in text form.
§ 3 Subject matter of the contract
(1) Makula is a SaaS provider that enables engineering companies and machine distributors to digitalize their after sales service and contact with their customers. This is made possible through the use of Makula’s mobile and web-based applications. Makula reserves the right to modify the software within the scope of continuous improvement and further development during the term of the contract, provided that the achievement of the purpose of the contract is not jeopardized thereby, the modifications are reasonable for the customer and they do not lead to any significant restriction of the contractually agreed services.
(2) We provide the SaaS to the Customer for use by way of software-as-a-service in the respective agreed version at the router exit of the data center in which the server with the software is located (“Transfer Point“). The Customer shall receive the non-exclusive and non-transferable right to use the software for the duration of the contract within the scope of the SaaS Services as intended.
(3) The Customer is thereby enabled to use the software stored and running on the servers of Makula or of a service provider commissioned by Makula during the term of this contract via an internet connection for its own purposes and to store and process its data with its help.
(4) The software, the computing power required for its use and the required storage and data processing space are provided by Makula. Makula is not responsible for establishing and maintaining the data connection between the Customer’s IT systems and the described Transfer Point.
(5) The Customer may only process the software to the extent that this is covered by the intended use of the software according to the respective contractual agreements. The Customer may only duplicate the software to the extent that this is covered by the intended use of the software according to the respective contractual agreements. Necessary duplication includes loading the software into the RAM on Makula’s server, but not the even temporary installation or storage of the software on data carriers (such as hard disks or similar) of the hardware used by the Customer.
(6) The Customer is not entitled to make the SaaS available to third parties for use against payment or free of charge. This does not include the intended use of the software between the customer and its end customers. The Customer is expressly not permitted to sublet the SaaS.
§ 4 Obligations of the Customer, Blocking
(1) The Customer undertakes not to use the SaaS for illegal purposes or purposes that violate the law, official requirements or the rights of third parties. He shall prevent unauthorized access to the SaaS by third parties by taking appropriate precautions. For this purpose, the Customer shall, to the extent necessary, instruct its employees to comply with copyright law.
(2) The Customer is obliged to check his data and information for viruses or other harmful components before entering them and to use state-of-the-art virus protection programs for this purpose.
(3) Notwithstanding Makula‘s obligation to back up data, the Customer itself is responsible for the entry and maintenance of its data and information required for the use of the SaaS Services. In particular, the Customer shall perform a regular and complete data backup itself or have it performed by a third party and shall be solely responsible for this. If the Customer suffers damage due to the loss of data, Makula shall not be liable for this, as far as the damage would have been avoided by a regular and complete backup of all relevant data by the Customer.
(4) Makula is entitled to immediately block the Customer if there is a reasonable suspicion that the Customer is using the SaaS for illegal purposes and/or infringes third party rights. A reasonable suspicion for an illegality and/or a violation of rights exists in particular if courts, authorities and/or other third parties inform Makula thereof. Makula shall immediately notify the Customer of the block and the reason for it. The block is to be lifted as soon as the suspicion is invalidated.
(5) The Customer is obligated to ensure that its own customers (end customers) with whom it uses Makula’s software comply with the obligations of this Section 4.
§ 5 Term and Termination
(1) The term and termination of the contract shall be governed by the respective order sheet.
(2) The right of either party to terminate the contract without notice for good cause remains unaffected. If the Customer is responsible for the reason for termination, the Customer shall be obligated to pay Makula the agreed remuneration less any expenses saved by Makula until the date on which the contract would end at the earliest in the event of ordinary termination.
(3) Notices of termination must be in text or written form according to §§ 126, 126b BGB – German Civil Code) (email sufficient).
§ 6 Availability
(1) The availability of the SaaS is 99% on an annual average. In addition, the necessary time for the installation of updates and for maintenance work will be deducted from this. These will be carried out between 0 and 5 a.m., if possible.
(2) Makula points out that impairments in the use of the SaaS may occur which are beyond the control of Makula, e.g. due to technical conditions in the area of internet connection which cannot be influenced by Makula or due to the technical infrastructure used by the user. Should the functionality or availability of the SaaS be reduced due to such reasons, this shall not be considered as poor performance.
(3) Functional impairments have to be reported by the Customer immediately. A right of the Customer to take action himself (e.g. resulting from Section 536  BGB) is excluded.
§ 7 Support
(1) A support case exists if the Software does not fulfill (overall or in individual cases) the contractual functions.
(2) The reporting of faults regarding the Software/support cases shall be made by e-mail to email@example.com. If the Customer reports a support case, it shall provide a description as detailed as possible of the respective malfunction in order to enable the most efficient troubleshooting possible.
§ 8 Remuneration
(1) The payment period and the amount of the remuneration as well as the method of payment shall be governed by the order sheet.
(2) If the Customer delays the payment of a due remuneration by more than four weeks, Makula shall be entitled to block access to the Software after prior reminder with setting of a deadline and expiry of the deadline. Makula’s claim to remuneration shall remain unaffected by the blocking. Access to the Software will be reactivated immediately after payment of the arrears. The right to block access shall also exist as a mitigating measure if Makula has a right to extraordinary termination pursuant to Section 5 (2) of these Terms and Conditions.
§ 9 Liability and compensation
(1) Claims for damages by the Customer – regardless of the legal basis – are excluded unless they are based on
a) culpable injury to life, body or health or
b) intent or gross negligence
by us, our legal representatives, employees or vicarious agents.
In addition, we shall be liable for any culpable breach of cardinal obligations, i.e. those obligations which make the proper performance of the contract possible in the first place and on whose performance the Customer therefore relies. If the breach of cardinal obligations is not due to intent or gross negligence on our part or on the part of one of our legal representatives, employees or vicarious agents, our liability shall be limited to the foreseeable damage typical for the contract.
(2) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of its legal representatives, its employees and vicarious agents.
(3) If a claim for damages is asserted against us by a third party with respect to the use of the SaaS Services, the Customer shall indemnify us, our legal representatives, our employees and vicarious agents comprehensively (including reasonable legal prosecution and legal defense costs, expenses, fees, taxes, etc., as well as reasonable advances) if the causes of the claim (in relation to us) are within the Customer’s sphere of control and organization. The same indemnification obligation shall apply to damages of third parties which are in any way based on failures in the use of our SaaS within our sphere of control and organization, unless our liability is based on
a) culpable injury to life, body or health,
b) intent or gross negligence or
c) the breach of cardinal obligations.
(4) Insofar as, claims for damages by third parties are based in any way on a merely slightly negligent breach of these cardinal obligations and exceed the foreseeable damage typical for the contract as defined in this Section, the Customer shall be subject to the aforementioned indemnification obligation with regard to the excess amount.
§ 10 Data Protection
(1) The protection of the privacy and data of its customers is of particular importance to Makula. Makula complies with all provisions of the General Data Protection Regulation (hereinafter “GDPR”) as amended from time to time.
(2) It is pointed out that Makula collects, stores and processes the following personal data of Customers (hereinafter “personal data”) in the course of its business activities: Name, email address.
(3) The processing of this personal data is necessary for the performance of the contract and is therefore lawful according to Art. 6 (1) lit. b GDPR.
(4) The personal data will only be stored as long as it is necessary for the fulfillment of the purpose of the contract.
(5) Makula uses features of LogRocket analytics service. LogRocket enables Makula to record customer sessions on the Makula Platform in order to detect and fix errors, provide the Customer with better support for specific problems and improve the usability and design of the Software. In doing so, LogRocket may also process personal data, e.g. the IP address. The data is available to Makula in anonymized form for product development. According to Art. 6 (1) lit. f GDPR, the legal basis for the processing of data is the legitimate interest of Makula to improve the offered software with regard to the user experience. Further information about LogRocket is available in the LogRocket policies, available at https://logrocket.com/privacy/. The Customer may object to the collection and processing of data generated by the use of the Services by LogRocket by contacting Makula.
(6) For more detailed information, please refer to Makula’s available at https://makula.io/datenschutzerklaerung/.
§ 11 Confidentiality
(1) Both parties mutually undertake to maintain confidentiality with regard to all confidential information exchanged before and during the term of the contract, i.e. all information, data and acquired knowledge of business and/or trade secrets of the respective other party to the contract.
(2) The confidentiality obligation shall continue to exist after termination of the contractual relationship.
§ 12 Notifications
Notifications (e.g. termination) and declarations shall be addressed to Makula Technology GmbH, Bachstr. 12, ℅ Next Big Thing AG, 10555 Berlin, Germany, firstname.lastname@example.org. For further information, please refer to the imprint at https://makula.io/imprint/.
§ 13 Reservation of right to change
(1) Makula has the right to amend these T&C’s at any time. The changes and amendments to the T&C’s will be announced to the Customer by email to the email address provided by the Customer at least four weeks before the planned effective date. The Customer’s consent to the amendment of the T&C’s shall be deemed granted if the Customer does not object to the amendment in text form (e.g. letter, fax, e-mail) within a period of two weeks, beginning with the day following the amendment announcement. Makula undertakes to separately point out the possibility, deadline and text form of the objection as well as the consequences of failure to object in the notice of change.
(2) If the Customer objects to a change in the sense of this clause in due form and time, the contractual relationship will be continued under the previous conditions. In this case, Makula reserves the right to terminate the contractual relationship extraordinarily with a notice period of one month.
(3) Changes to these General Terms and Conditions must be made in text form. This also applies to the waiver of the text form itself.
§ 14 Final provisions
(1) All contracts concluded between the Customer and Makula, the provisions of these T&C’s as well as all rights arising out of or in connection therewith shall be governed exclusively by the laws of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and those norms of private international law that lead to the application of the laws of a country other than Germany.
(2) All contracts concluded between the customer and Makula are interpreted according to German law. The English version is for information purposes only.
(3) The exclusive place of jurisdiction for all disputes arising from or in connection with the contract and these T&C’s is the place of business of Makula.
(4) Makula does not participate in any dispute resolution proceedings before a consumer arbitration board.
(5) The assignment of the Customer’s rights and obligations resulting from these T&C’s or other provisions and agreements with Makula, which are not directed towards money, is only permitted after Makula’s consent. If the Customer is an entrepreneur according to Section 14 German Civil Code (BGB) and if he has assigned his claims against us, which are directed towards money, to a third party without our consent, we may also render performance to the Customer with discharging effect if we had knowledge of the assignment, Section 354a German Commercial Code (HGB).