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AGB - General Terms and Conditions of MaxBrain AG

1 General, principles of cooperation

 

MaxBrain AG (hereinafter referred to as MaxBrain) operates a web application/service and associated SmartPhone Apps (GooglePlay, AppStore) on the Internet under "yourdomain.maxbrain.com" and under customer domains, by means of which companies manage their training and further education. The following General Terms and Conditions regulate the legal relationship between MaxBrain and its customers (hereinafter referred to as "Customer") with regard to the provision of software for use via the Internet (Software as a Service, in short SaaS).

 

The provisions of these terms and conditions apply to all contractual relationships between MaxBrain and the customer and form an integral part of every contract between MaxBrain and the customer. Deviating or supplementary terms and conditions of the customer are only valid insofar as they are accepted by MaxBrain in writing. The parties work together in a spirit of trust and inform each other immediately in the event of deviations from the agreed procedure or in the event of doubts about the correctness of the other's procedure. If the customer realises that her own information and requirements are incorrect, incomplete, ambiguous or impracticable, she must inform MaxBrain of this and the consequences she recognises without delay.

 

The contracting parties shall designate contact persons and their respective deputies for each other. These shall manage and monitor the execution of the contractual relationship for the contracting party appointing them in a responsible and expert manner. The Parties shall notify each other without delay of any changes in the designated persons. Until receipt of such notification, the previously designated contact persons and/or their deputies shall be deemed authorised to make and receive declarations within the scope of their previous power of representation. The contact persons shall communicate with each other at regular intervals about progress and obstacles in the execution of the contract in order to be able to intervene in the execution of the contract in a guiding manner if necessary.

2. dates

 

The dates are set by mutual agreement.

 

MaxBrain is not responsible for delays in performance due to force majeure (e.g. strike, official orders, general disturbances of telecommunication etc.) and circumstances in the area of responsibility of the customer (e.g. non-timely provision of cooperation services) and entitles MaxBrain to postpone the provision of the respective services for the duration of the hindrance plus a reasonable start-up time. MaxBrain will notify the customer of delays in performance due to force majeure.

3. obligations of the customer to cooperate, direct/indirect hindrance of MaxBrain in the fulfilment of the contract

 

The client supports MaxBrain in the fulfilment of its contractually owed services. This includes in particular the timely provision of information and data material, insofar as this is required by the customer's cooperation. The customer will instruct MaxBrain in detail regarding the services to be provided by MaxBrain. Insofar as the customer has undertaken to provide MaxBrain with materials of any kind within the framework of the execution of the contract, the customer must make these materials available to MaxBrain immediately and in a common, directly usable, preferably digital format. If it is necessary to convert the material provided by the Client into another format, the Client shall bear the costs incurred in this connection. Furthermore, the Customer shall ensure that MaxBrain obtains the rights necessary for the use of such materials. The Customer shall cooperate at his own expense.

 

If the client does not make foreseeable decisions necessary for the fulfilment of the contract or makes them later than the mutually agreed or written deadlines, MaxBrain reserves the right to charge the client for the costs of the resources released for the fulfilment of the contract during the time of the hindrance.

 

If the customer does not deliver documents, materials etc. which are essential for the fulfilment of the contract, or does not deliver them according to the deadlines previously agreed upon by both parties, MaxBrain reserves the right to charge the customer for the costs of the resources released for the fulfilment of the contract during the time of the hindrance.

4. changes in performance

 

MaxBrain is entitled to change or deviate from the services to be provided according to the contract, if the change or settlement is reasonable for the client, taking into account the interests of MaxBrain.

 

If the client wishes to change the contractually determined scope of the services to be provided by MaxBrain, she will express this wish for change in writing to MaxBrain.

5. copyrights and scope of use

 

The copyrights of the SaaS developed by MaxBrain belong in principle to MaxBrain. MaxBrain may dispose of these rights in accordance with the provisions of the Federal Copyright and Related Rights Act.

MaxBrain is entitled to designate its authorship of the SaaS it creates in a form to be determined by MaxBrain.

 

The scope of the permitted use of the SaaS developed by MaxBrain results from the purpose of the contract concluded with the customer. In particular, SaaS developed by MaxBrain, contractual documents or parts thereof, which are handed over to the client, may only be used within the framework of the agreed contract. Unless otherwise agreed, the use of the SaaS by the Customer in terms of content, time and geography refers to the use of the SaaS for a limited period of time. Any further use outside the purpose of the contract is not permitted without the permission of MaxBrain. In particular, the customer is prohibited from granting sub-licenses and from duplicating, renting or otherwise exploiting the services.

 

Until full payment of the remuneration, the client is only permitted to use the services provided on a revocable basis. MaxBrain can revoke the use of such services with whose payment the client is in default for the duration of the default.

 

For any further use outside the purpose of the contract, the client has to compensate MaxBrain additionally.

6. Guarantees from MaxBrain

 

There are no property rights of third parties in the SaaS.

 

Subject in particular to the provisions of Art. 2 and 3, MaxBrain guarantees the functions defined at the time of the analysis or new or modified functions, insofar as these have been subsequently agreed in writing by both parties.

 

This warranty does not apply insofar as a functional defect is due to circumstances beyond its control, such as (but not limited to):

 

Changes in the conditions of use and operation. Interventions in programmes by the customer or third parties. Operating errors by the customer or third parties. Any further warranty is expressly excluded.

7. product acceptance and defect rectification

 

Subsequently detected defects in the SaaS provided by MaxBrain with jointly defined customer-specific adjustments will be remedied by MaxBrain free of charge up to six months after acceptance. Only deviations from functions defined at the time of the order or from new or modified functions are considered defects, insofar as these have been subsequently agreed in writing by both parties. All other work (e.g. changes, extensions or adaptations of functions, hardware-related work, etc.) will be invoiced additionally by MaxBrain to the customer.

8 Conclusion of contract, costs and payment modalities

 

Subject to a separate regulation, a contract is concluded when MaxBrain confirms an order of the customer in writing or in electronic form (e.g. by e-mail). A contract is also concluded when the service of MaxBrain (use of the software) is provided or claimed by the customer. MaxBrain reserves the right to confirm the conclusion of a contract by means of an invoice.

 

MaxBrain is bound to written offers for a period of 20 days, unless another period is mentioned on the offer. Information given by telephone is only binding if it has been confirmed in writing (also possible by e-mail).

 

Unless otherwise agreed in individual cases, the price for the provision of the SaaS is the price specified in advance in the offer confirmation by MaxBrain. Price changes which are not within the sphere of influence of MaxBrain are reserved. These can be invoiced to the customer at any time.

Approved additional expenses without a written price will be invoiced to the client by MaxBrain according to the respective expenditure. (Hourly rate). All prices agreed in writing or verbally are exclusive of VAT.

 

Unless otherwise agreed, the following conditions apply with regard to the payment modalities:

 

Payment of the annual usage fee of the SaaS, for support, maintenance and hosting shall be made 30 days after activation. The payment period is 30 days from the date of invoice.

9. liability

 

MaxBrain makes every effort to provide its services at all times to the full extent and in the best quality. Any disruptions will be remedied as soon as possible within the framework of the existing possibilities. If the malfunction is not remedied within a reasonable period of time or not at all for reasons exclusively attributable to MaxBrain, the customer may withdraw from the contract as the only remedy. The customer expressly agrees that MaxBrain, to the extent permitted by law, disclaims any liability for any kind of damages that the customer may incur through the use of the SaaS. In any case, MaxBrain's liability is limited to the direct damage.

 

Liability is hereby excluded in particular for simple negligence, indirect damage and consequential damage, including loss of profit.

 

MaxBrain is not liable for the loss of data and/or programs insofar as the damage is based on the fact that the customer has omitted to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.

 

If MaxBrain is prevented from fulfilling the work assigned to it for reasons beyond its control, no possible compensation for damages can be derived from this.

 

The above provisions also apply in favour of MaxBrain's vicarious agents and auxiliary persons.

10. secrecy

 

Both parties undertake to maintain confidentiality towards third parties. This confidentiality obligation includes all information constituting business secrets received by the parties in connection with the project or gained from the project.

 

The documents, knowledge and experience provided to the other contracting party may only be used for the purpose of the cooperation between the two parties. They may not be made accessible to third parties unless they are intended to be made accessible to third parties or are already known to the third parties. Third parties are not auxiliary persons or vicarious agents (e.g. freelancers, subcontractors, etc.) called in for the performance of the contractual relationship.

 

Furthermore, the contracting parties agree to maintain confidentiality with regard to the content of this agreement and the knowledge gained during its execution.

 

The confidentiality obligation shall also apply beyond the termination of the contractual relationship. To the extent requested by a contracting party, the documents handed over by it, such as strategy papers, briefing documents, etc., shall be returned to it after termination of the contractual relationship, unless the other contracting party can claim a legitimate interest in these documents.

11. data protection

 

Certain data of the client will be processed in accordance with the Swiss Data Protection Act. The client agrees that MaxBrain may transfer the client's data to partners abroad and that this data may be stored there temporarily or permanently.

12. involvement of third parties

 

MaxBrain may at any time, at its own discretion, engage third parties to fulfil its contractual obligations. It is liable for the careful selection and instruction of these third parties.

13. additional provisions for general internet applications

 

Availability of domain names. MaxBrain is not obliged to check the availability of a domain or the compliance with the registration conditions of the respective registry.

 

Insofar as the client instructs MaxBrain to apply for a domain name on behalf of the client, the client waives all claims against MaxBrain in connection with this order.

 

Terms and Conditions of Registration of individual domain name registries. Insofar as domains are the subject of the corresponding contractual relationship, the registration terms and conditions of the respective domain name registries shall automatically become an integral part of these Terms and Conditions.

 

The Customer shall compensate MaxBrain for all damages that may arise from the fact that the registration conditions of the respective responsible domain name registries are not complied with.

14 Additional Provisions for Software-As-A-Service (SaaS)

 

a) Principle

MaxBrain provides the client with storage space on a server connected to the Internet. The server receives and sends data in connection with the Internet. The customer uses the storage space rented by MaxBrain to operate a learning management system. The following provisions refer only to the learning management system of the customer explicitly mentioned in the respective order; other persons or organisations are not included.

 

b) Services

According to the product description, MaxBrain provides the customer with a SaaS (browser, mobile apps, logins, etc.) for a usage fee. The usage fee must be paid in advance; otherwise MaxBrain reserves the right to discontinue the service. With maintenance work on the Software or on the servers on which the Software runs, MaxBrain optimizes the operation, the performance and the quality of the Software. The customer therefore tolerates short-term restrictions on use resulting from maintenance work. MaxBrain preferably carries out maintenance work at off-peak times (between 5.30 p.m. and 8.30 a.m.). Longer interruptions due to maintenance work will be communicated to the client in good time and planned jointly.

MaxBrain can provide an update or further development of the software or individual components as a new version or update. The customer is obliged to use the new version or update. MaxBrain can offer new functionalities as fee-based extensions. The customer is not obliged to purchase these. The integration of updates without incurring additional costs remains reserved.

 

c) Contents

The customer undertakes to treat her access data confidentially. The customer can change her access password at any time. The client is responsible to MaxBrain for any use of the storage space and is liable for any damage resulting from the misuse of the storage space. When using the storage space, the customer is obliged to comply with Swiss and international law as well as generally accepted rules of conduct (netiquette, etc.). The Customer is responsible for the content of the information that the Customer or third parties transmit or have processed, retrieve or hold ready for retrieval via the MaxBrain servers. In particular, the following information or data may not be disseminated via the client's storage space:

  • Information or data that infringe copyrights and related rights, design rights, trademark rights, patent rights or other intellectual property rights and similar property rights of third parties;
  • Pornographic writings, sound or image recordings and depictions within the meaning of Art. 197 SCC;
  • Racial discrimination within the meaning of Art. 261bis SCC;
  • Depictions of violence within the meaning of Art. 135 of the Swiss Criminal Code (SCC);
  • incitement to violence within the meaning of Art. 259 SCC;
  • Instructing or inciting criminal conduct;
  • Unauthorised gambling within the meaning of the Lottery Act.

 

MaxBrain disclaims any liability for the content of clients and third parties.

 

d) Misuse

In cases of improper use, MaxBrain reserves the right to block the Customer's software licenses with immediate effect at the Customer's expense. Abusive use is in particular the non-fulfilment of the contractual obligations of the Customer mentioned in Art. 17(c). The blocking remains in place until the respective facts have been clarified or the customer provides proof of the actual harmlessness of the content. MaxBrain also reserves the right to block the service at the expense of the client, if the user's behaviour in any way impairs the operational behaviour of the servers. Furthermore, the client is prohibited from reselling, subletting or lending components of a hosting package to third parties.

 

e) E-mail

The client must regularly check the accesses in her personal electronic mailbox (e-mail) and avoid exceeding the storage space. The sending of unsolicited mass e-mails (spamming) via the MaxBrain servers and the operation of mailing lists to an extent that endangers the operational stability of the MaxBrain servers is not permitted and constitutes misuse of the services provided.

 

f) Data protection

The client is solely responsible for making back-up copies of data that she transmits to MaxBrain. All data entered on MaxBrain is stored daily as a back-up for 3 months. In the event of data loss, the customer is obliged to transmit the relevant data again to MaxBrain free of charge. There are various data protection risks for the customer when using the Internet. For example, data protection is not guaranteed when data is transmitted unencrypted. It is therefore to be expected that unencrypted e-mails can be read, changed or suppressed by third parties without authorisation. Encryption and ciphering of transmitted information can improve protection against unauthorised access.

 

g) Liability

The use of the SaaS is at the customer's own risk. MaxBrain disclaims any responsibility for the completeness, accuracy and quality of the data and information transferred within the framework of the SaaS. Notwithstanding the provisions of article 9, MaxBrain does not assume any responsibility for damages caused by the customer to third parties through misuse of MaxBrain's storage space. This includes damages caused by computer viruses. MaxBrain does not guarantee that the SaaS can be used from all end devices without any problems. MaxBrain disclaims any liability for the loss or unauthorised modification of emails. MaxBrain is not liable for interruptions of service for the purpose of troubleshooting, maintenance, changeover of infrastructure (switchovers, etc.) or the introduction of new or different technologies.

 

h) Support

All requests for technical support can be sent by email to support@maxbrain.com. If the necessary support exceeds the usual extent, MaxBrain reserves the right to charge the customer for the effort according to the currently valid rates.

 

i) User fees

If the annual total storage amount is exceeded, additional charges may apply. MaxBrain will inform the customer in advance and give her the option to reduce the amount of storage used by a mutually defined date.

15 Duration of contract, termination

 

The respective contract comes into force upon signing and is concluded for an indefinite period of time or for the selected contract duration. Termination is possible at the end of each year subject to a three-month notice period.

 

Upon termination, MaxBrain will issue an invoice to the Client for the work performed up to the date of termination. The client undertakes to pay the invoice amount within 30 days of receipt; fees already charged or invoiced will not be credited or refunded.

 

Insofar as the customer data is personal data, the following applies: MaxBrain processes the Customer Data exclusively on behalf of and according to the instructions of the Customer and exclusively for the purpose of providing the Service. MaxBrain takes appropriate technical and organisational measures to protect the Customer Data. The Customer remains responsible for the legality of the collection, processing and use of the Customer Data in accordance with the applicable legal provisions, in particular the Swiss Data Protection Act (DSG).

16. changes

 

MaxBrain reserves the right to amend these terms and conditions at any time and without prior notice. The currently valid version can be viewed and printed at the following URL: https://www.maxbrain.com/AGB.

17. partial invalidity

 

If a competent authority, a court, etc., in a decision should deem one or more provisions in these terms to be void or ineffective, the binding force of the remaining provisions remains unaffected. In this case MaxBrain replaces the respective void or ineffective provision with a legally valid provision that is as economically equivalent as possible.

18. place of jurisdiction

 

The ordinary courts shall have jurisdiction over all disputes arising from or in connection with these provisions. The exclusive place of jurisdiction is Zurich. MaxBrain reserves the right to take legal action against the client at the client's place of business.

19 Applicable law and place of jurisdiction

 

These provisions are governed exclusively by Swiss substantive law. The application of the UN Convention on the International Sale of Goods (Vienna Sales Convention) is excluded. The parties agree that the exclusive place of jurisdiction shall be the ordinary court at the place of MaxBrain's registered office. In addition, MaxBrain has the possibility to sue the customer at his registered office or place of residence.

 

Zurich, March 2022