General Terms and Conditions of mozaiq operations GmbH for the use of our services
1 Scope of the General Terms and Conditions
1.1 Unless otherwise agreed or stated herein, these General Terms and Conditions (“Terms”) shall apply exclusively to all contractual relationships between mozaiq operations GmbH, Sonnenstr. 23, 80331 Munich, Germany (hereinafter referred to as “mozaiq”) and other companies (referred to in the following as “Customer/s”) in which mozaiq provides Customers with access to the Market accessible via the Platform as operated by mozaiq.
1.2 Deviating, conflicting or supplementary general terms and conditions of the Customer shall only become part of the agreement between mozaiq and Customer if and to the extent that mozaiq has expressly agreed to their validity. This requirement of consent applies in any case, e.g. even if mozaiq provides its services to the Customer without reservation in knowledge of the terms and conditions of the Customer.
1.3 mozaiq and the Customer are independent contractual partners. These Terms do not substantiate any exclusive collaboration.
1.4 The Customer shall be solely responsible for its activities and those of the Authorised Users designated by it on the Market.
1.5 As regards the contractual relationship between the Customers, the respective general terms and conditions of the Customer whose API is offered on the Market or of the Provider whose API has been connected by mozaiq to the Market (“Offeror”) shall apply to the contractual relationship with Customers connecting their Smart Assets to APIs offered either by other Customers or a Provider (“User”). The general terms and conditions of the respective Offeror will be made accessible [via a link] to the User prior to any connection to an API. These general terms and conditions will, however, not apply to the relationship between mozaiq and the Customer.
“Access Rights” shall refer to Customers having been provided with an Account and thus been authorised to offer and/or access Smart Assets on the Market.
“Affiliated Companies” shall refer to companies which are affiliated with another company within the meaning of Section 15 German Companies Act (“Aktiengesetz”, “AktG”).
“API” (Application Programming Interface) shall refer to a set of clearly defined methods for communication between software which is either provided by the Customers when offering a Smart Device or connected to the Market by mozaiq.
“Authorised User” shall refer to a person at the Customer and its Affiliated Companies or their Business Partners to whom the Customer grants access authorisation to the Market.
“Business Partner” shall refer to a company which, in connection with the internal business transactions of the Customer or of its Affiliated Companies, requires access to the Market, e.g. clients, distributors, service providers and/or suppliers of the Customer or of its Affiliated Companies.
“Confidential Information” shall refer to all information which protects mozaiq or the Customer from unrestricted forwarding to third parties or which is to be viewed as confidential under consideration of the circumstances of the forwarding or content, including the agreement itself. Particularly the following information shall be deemed to be Confidential Information of the Customer: the Customer Data, marketing and business requirements as well as implementation plans of the Customer or information on its financial situation; and as Confidential Information of mozaiq particularly: the Documentation, Materials and analyses as well as information on research and development, product offers, pricing and availability of products of mozaiq and all software, programs, tools, data or other material of mozaiq which mozaiq provides to the Customer pre-contractually or on the basis of the Order Form.
“Customer Account” shall refer to the account enabling Customer(s) to access the Market.
“Customer Data” shall refer to all content, materials, data, personal data and information which are captured and stored by Authorised Users on the Market or derived from its use. The Customer Data and the data derived from them do not contain any Confidential Information of mozaiq.
“Documentation” shall refer to mozaiq’s technical and functional documentation for the Market as well as any descriptions of roles and responsibilities in the respective applicable version which are made available to the Customer upon provision of the Market.
“End Customer” shall refer to the Customer’s customers.
“IoT Platform” or “Platform” shall refer to the Cloud provided by mozaiq allowing access to the Market. The Platform facilitates interoperability between the Customers’ Smart Assets accessible via the Market.
“Market” shall refer to the B2B Platform provided by mozaiq in accordance with the Order Form, enabling Customers to either offer their Smart Assets or gain access to Smart Assets provided by other Customers via an API. The Customers connected to the IoT Platform can develop, implement, operate and manage IoT and M2M applications via the IoT Platform. On this basis, the IoT Platform facilitates the automisation of processes and network connections, the storage and management of authorised and authenticated sensor data and also the connection, analyses and control of the devices and data connected by the Customer
“Materials” shall describe all materials provided to the Customer before or as part of the contractual provision of services by mozaiq. This covers materials which are produced in collaboration with the Customer but not Customer Data, Confidential Information of the Customer or the Market itself.
“mozaiq Logic” shall refer to shall refer to partner-provided code, executable to enable the desired logics behind the use case.
“Order Form” shall refer to an agreement between mozaiq and the Customer on the use of the Market, which refers to these General Terms and Conditions or any further documents.
“Provider” shall refer to a company the API of which has been connected to the Market because it is either an open API or has been connected to the Market with the prior consent specific of company.
“Smart Assets” shall refer to any element that is connected to the internet and can exchange informations with other element, i.e. IoT-enabled devices, physical services (e.g. “real word” services, such as physical delivery or security) or digital services (e.g. social media services).
“Term” shall refer to the period of time during which the Customer is entitled to use the Market in accordance with these Terms.
3 Scope of Services
3.1 These Terms regulate mozaiq’s provision of the Market to the Customer and apply solely to B2B customers. It is the responsibility of the Customer to check whether the Market can be used as intended by the Customer. mozaiq is only obliged to provide those functions which are described in these Terms.
3.2 Upon subscribing to the Market via an Order Form, mozaiq will enable the Customer to register on the Market. Each Customer is assigned one account.
3.3 mozaiq shall enable Customers to either offer their Smart Assets or gain access to Smart Assets provided by other Customers on the Market via an API. mozaiq will enable Customers offering Smart Assets to add the specific Smart Asset via drag and drop to the Market, to describe the Smart Asset and to provide their API.
3.4 The provision of a Smart Asset on the Market shall constitute an offer to other Customers (“Offer”). Customers gaining access to Smart Assets shall be enabled to search for specific Smart Assets on the Market and integrate the specific Smart Asset into their object with or without mozaiq logic via the API provided by the respective Customer or via an API connected by mozaiq and by means of a credential key as provided by mozaiq. The connection to an API by the User shall constitute the acceptance of the offer (“Acceptance”) and thus lead to a binding agreement between the Offeror and the User.
3.5 Upon the conclusion of an agreement between Customers as described in Sec. 3.4, the User shall receive the API address key that will allow the User’s End Customer to connect their End Device to the respective Smart Asset.
3.6 To the extent mozaiq acts as data processor mozaiq shall implement the technical and organisational measures for the processing of personal data on the Market in accordance with applicable data protection law as regulated in the data processing agreement to which reference may be made in the Order Form, if applicable, and which in such case shall be concluded between mozaiq and Customer prior to any data processing activities by mozaiq on behalf of the Customer as regards Customer Data.
3.7 As an innovative company, mozaiq strives to keep, update and modernize the state of the art by the expansion and further development of the functionalities of the Market. However, mozaiq is not obliged to update specific functionalities, updates or upgrades at the request of the Customer.
3.8 Therefore, mozaiq may modify the functionalities of the Market at any time to an appropriate extent taking into account the Customer’s interest. Such a modification is particularly considered to be reasonable when (i) it is required for an important reason, e.g. in case of performance problems, the infringement of rights of third parties or for the purpose of data security, and (ii) the functionalities as well as other essential obligations of mozaiq are not affected.
4 Legal Relationships with End Customer
4.1 mozaiq and the Customer agree that they are only liable to each other for the obligations resulting from the Order Form including these Terms.
4.2 Insofar as services have been contractually agreed between the Customer and the End Customer in connection with the Market, the Customer shall be solely responsible towards the End Customer. This also refers to the provision of any requisite terms and conditions of use and similar legal documents to the End Customer.
4.3 The Customer is obliged to check itself whether it must take certain measures before using the Market, e.g. involve its works council in the use of the Market in its company, provide the End Customer with information on the Market and its provision (e.g. terms and conditions of use, data protection declaration, legal notice) and/or whether it must obtain declarations of consent from the End Customer under data protection law with respect to the processing of its personal data.
5 Rights of Use
5.1 For the Term of the agreement, mozaiq shall grant the Customer a non-exclusive, nontransferable worldwide right to use the Market, the Materials and Documentation in accordance with the Terms and the Documentation. The provisions on the use of the Market shall also apply to the Materials and Documentation.
5.2 The Customer may permit Authorised Users to use the Market to the extent contractually agreed upon. The Customer shall be liable for acts and failures to act on the part of its Authorised Users, Affiliated Companies and Business Partners as if they were its own acts or failures to act, and shall obligate them to use the Market and the Materials in compliance with the agreement. Furthermore, the Customer may not sub-license, license, sell, lease or rent out the Market, its Documentation or provide it to third parties in any other way.
5.3 When using the Market, the Customer may not: (a) copy, translate, disassemble, decompile or reverse develop the Market or the Materials and the Documentation in whole or in part or modify them in any way or create works derived from them; the Documentation may, however, be copied to the extent necessary for internal use; (b) use the Market in a manner which violates applicable law, in particular transfer information and data which are unlawful or which infringe third party property rights; and (c) endanger or circumvent the operation or the security of the Market.
5.4 mozaiq can suspend the Customer’s access (in particular user names and passwords) to the Market temporarily to avoid damage if and to the extent that there is sufficient probability that, by the Customer, Authorised User or a third party with the Customer’s access data further using the Market in a manner which is contrary to the agreement, the Market, other mozaiq Customers or third party rights could be impacted detrimentally such as to require direct action to avert damage. mozaiq shall notify the Customer immediately about any such suspension. Where the circumstances so permit, the Customer shall be informed beforehand in writing or by email. mozaiq shall restrict the suspension in terms of time and scope as is reasonably acceptable based on the circumstances of the individual case.
6 Customer Data and Personal Data; Responsibilities and Duties of the Customer
6.1 The Customer is solely responsible for the content of the Customer Data and its capture on the Market. The Customer shall grant mozaiq, its Affiliated Companies and sub-contractors the non-exclusive right to use Customer Data to the extent necessary (a) for the purpose of providing the Market (including in particular the creation of backup copies and the conducting of penetration tests), and (b) to check compliance with the provisions of clause 6.2 by the Customer.
6.2 The Customer shall collect, update and process all personal data contained in the Customer Data in compliance with the applicable data protection law. Where necessary, the Customer is in particular responsible for obtaining declarations of consent from End Customers under data protection law.
6.3 The Customer shall maintain appropriate security standards for the use of the Market by the Authorised Users. The Customer is solely responsible for assessing the suitability of the Market for its business processes and for observing all applicable legal provisions with respect to the Customer Data and use of the Market. The Customer is obliged to cooperate free of charge and to the necessary extent in mozaiq’s provision of the Market by in particular having infrastructure and telecommunications equipment to access the Market. mozaiq points out that this cooperation is a prerequisite for mozaiq’s correct service. The Customer shall bear the disadvantages and additional costs from any infringement of its duties.
7 Remuneration, Payment
The Customer shall pay to mozaiq the remuneration as stated in the Order Form including the price sheet plus the then applicable statutory rate of value added tax. The respective invoice amounts shall fall due and be payable after receipt of the invoice as stated on the invoice.
8 Term, Termination
8.1 The agreement between mozaiq and the respective Customer which is based on the Order Form shall be entered into for an indefinite period of time. It can be terminated by each Party giving a notice of three months to the end of the month in text form. Rights are reserved to special termination and terminations for good cause. mozaiq shall reserve the right to terminate for good cause particularly in the case of multiple or gross infringement of main contractual duties.
8.2 At the end of the agreement (a) the possibility of the Customer to access the Market shall end; (b) its right to use the Market and the Confidential Information of mozaiq shall end; and (c) the Confidential Information of the disclosing party shall be returned or deleted in accordance with the agreement. The termination of individual Order Forms shall not affect other Order Forms or agreements.
9 Third Party Claims
If a third party asserts claims based on property rights which are contrary to exercising the contractually agreed right to use the Market or Materials, the Customer must notify mozaiq immediately in writing and in full. If the Customer discontinues the use of the Market or the Materials forming the subject matter of agreement for reasons of damage minimisation or for any other important reasons, it is obliged to point out to the third party that the discontinuation of use is not associated with a recognition of the asserted infringement of property rights. It shall conduct a court dispute with the third party only in agreement with mozaiq or authorise mozaiq to conduct the dispute. This shall apply mutatis mutandis to the extent that a third party asserts claims against mozaiq which are attributable to actions of the Customer, the Authorised Users or access by third parties.
10.1 Liability regardless of fault for initial defects shall be ruled out.
10.2 mozaiq shall eliminate material and legal defects of the Market in accordance with clause 10.4. If mozaiq has not rectified the defect even after expiry of a period of grace of appropriate length which has been set in writing by the Customer, and if the suitability of the Market is more than only insubstantially reduced as a result thereof, the Customer shall be entitled to terminate, whereby notice shall be required in text form. If the suitability of the Market including is reduced more than only insubstantially, the Customer shall be entitled to reduce remuneration appropriately. The following clause 11 shall apply to damages based on defects.
10.3 Should mozaiq commit other infringements of duty in connection with the provision of the Market outside the area of material and legal defect liability, the Customer must complain of this to mozaiq in writing and must grant mozaiq a period of grace of sufficient length during which mozaiq is given the opportunity to correctly provide the service or to remedy the situation in any other way. Clause 11 shall apply to damages.
10.4 mozaiq shall rectify defects on the Market such that mozaiq shall provide the Customer with a new fully functioning status of the the Market or rectify the defect, as mozaiq so chooses. The rectification of defect can also consist of mozaiq indicating acceptable possibilities to the Customer which avoid the effects of a defect. In the case of legal defects, mozaiq shall, as it so chooses, either (a) create the right for the Customer to use the Market in accordance with the agreement, or (b) replace the Market or change it such that the accusation of infringement is removed but the use by the Customer in accordance with the agreement is not unacceptably impaired, or (c) terminate the Order Form and reimburse to the Customer any advance payments for the term remaining after the date of termination and provide damages within the framework of clause 11.
10.5 The Customer is obliged to complain about any infringements of duty on the part of mozaiq immediately in writing, specifying the reason in detail.
11 Limitation of Liability
In all cases of contractual and non-contractual liability, mozaiq shall provide damages or replacement of futile expenses only to the following extent:
11.1 In the event of intent or gross negligence, mozaiq shall be liable according to the statutory provisions. The same shall apply in the event of culpably caused damages resulting from an injury to life, body or health, in the event of damages resulting from a violation as to quality (“Beschaffenheitsgarantie”), as well as in the event of defaults concealed fraudulently (“arglistig verschwiegene Mängel”).
11.2 Notwithstanding clauses 11.1 and 11.4, in the event of slight negligence, mozaiq shall be liable only if a contractual core duty (“wesentliche Vertragspflicht”) is infringed. A contractual core duty is a duty whose accomplishment enables proper fulfilment of an agreement and whose observance the contracting parties may regularly rely on.
11.3 Liability in the case of slightly negligent infringement of any such main contractual duty shall be limited to the amount of damage which was foreseeable at the time of conclusion of the agreement and typical taking into account the nature of the contract (“vorhersehbarer und vertragstypischer Schaden”).
11.4 The above liability restrictions shall also apply in favour of the representatives, employees and vicarious agents of mozaiq.
11.5 Liability according to the Product Liability Act shall not be affected.
11.6 The liability of mozaiq is otherwise ruled out.
12.1 The parties undertake to protect all Confidential Information of the other party before and as part of satisfaction of agreement to an unrestricted extent in terms of time and as they would their own comparable Confidential Information and at least to treat it confidentially with the appropriate care. Passing-on to a third party is only admissible if this is necessary to exercise rights or to satisfy the agreement and these persons are essentially subject to comparable confidentiality duties as the ones regulated herein. Insofar as technically possible, duplication of Confidential Information of the other party must contain all indications and notes on its confidential or secret character, as are contained in the original.
12.2 The above clause 12.1 shall not apply to Confidential Information which (a) has been developed independently by the recipient without having recourse to the Confidential Information of the disclosing party, (b) has become generally publicly accessible without an infringement of agreement on the part of the recipient or has been received lawfully and without the duty to maintain secrecy from a third party who is authorised to provide this Confidential Information, (c) was known to the recipient without restriction at the time of disclosure or (d) following written consent of the disclosing party has been exempted from the above regulations.
12.3 mozaiq is authorised to use the name of the Customer in reference Customer lists or in the quarterly conferences with investors or at times which are acceptable to both parties as part of mozaiq’s marketing activities (including references and success stories, in Customer opinions appearing in the press, reference Customer visits, participation in mozaiq events). Apart from that neither of the parties shall use the name of the other party for public marketing activities without having obtained the other party’s prior written consent. mozaiq may pass on information on the Customer to its Affiliated Companies for marketing and other business purposes. Insofar as this covers the provision and use of contact data of the Customer’s contact partners, the Customer shall obtain any consents which may be necessary.
13.1 Amendments and supplements to the agreement as well as all contractually relevant declarations of intent and declarations to exercise rights, in particular terminations, reminders or setting of deadlines, shall be required in text form.
13.2 The Customer is responsible for observing all applicable legal provisions of the country in which its headquarters are located and of other countries within respect to the use of the Market, the Documentation and the Materials by the Customer and its Authorised Users.
13.3 Without the prior written consent and notwithstanding the provision in Section 354a German Commercial Code (“Handelsgesetzbuch”, “HGB”), the Customer may assign or transfer neither the agreement nor contractual rights or duties to third parties. mozaiq can transfer the agreement to one of its Affiliated Companies.
13.4 Should individual provisions of this agreement be or become ineffective, this shall not affect the efficacy of the remaining provisions.
13.5 All legal relationships between the Customers and mozaiq shall be based on German law, excluding international private law and the UN Convention on the International Sale of Goods.
13.6 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, that cannot be resolved through negotiations shall be finally settled by arbitration in Munich, Germany in accordance with the Rules of Arbitration of the International Chamber of Commerce (the “ICC”). [The Rules for Expedited Arbitrations shall apply, unless the ICC in its discretion determines, taking into account, the complexity of the case, the amount in dispute and other circumstances, that the Rules for Expedited Arbitrations shall not apply. In the latter case, the ICC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators.] Exclusive venue for all disputes arising from and in connection with this agreement is Munich.
14 Amendments to these Terms
14.1 mozaiq shall reserve the right to subsequently amend individual provisions of these Terms insofar as it appears to be necessary and the Customer is not disadvantaged by this against good faith or unreasonably.
14.2 Subsequent amendments to the Terms are usually intended to improve mozaiq’s services in the interest of the Customer or to react to a change in the legal situation or case law or in reaction to unforeseeable changes which would make the implementation of the agreement difficult or impossible without an adjustment or supplement to the Terms. Possible amendments to the Terms applicable on entering into the agreement are explicitly excluded from the above authorisation to make amendments.
14.3 The Customer shall be notified of amendments or supplements to the Terms by written or electronic notification with an appropriate run-up period of at least four weeks. The amendments or supplements shall become contractual content if the Customer does not object to them within six weeks of their announcement. If the Customer opposes the amendments, each of the parties may end this agreement in accordance with the termination rule applicable before the amendment. mozaiq shall point out this right of objection and its consequences to the Customer in the notification of the amendments.