AGB - General Terms and Conditions of MaxBrain AG

1. general information, principles of cooperation

 

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

 

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 business of the customer are only valid if they are accepted in writing by MaxBrain. 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 party's procedure. If the customer recognizes that her own information and requirements are incorrect, incomplete, unclear or impracticable, she must inform MaxBrain immediately of this and the consequences she recognizes.

 

The contracting parties shall designate contact persons and their respective deputies. These persons shall manage and monitor the execution of the contractual relationship for the contracting party designating them in a responsible and expert manner. The parties shall notify each other immediately of any changes to the designated persons. Until such notification is received, the previously named contact persons and/or their deputies shall be deemed authorized to make and receive declarations within the scope of their previous power of representation. The contact persons shall communicate 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 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 telecommunications disruptions, etc.) and circumstances within the customer's area of responsibility (e.g. failure to provide cooperation services on time) and entitles MaxBrain to postpone the provision of the services concerned for the duration of the hindrance plus a reasonable start-up period. MaxBrain will notify the customer of delays in performance due to force majeure.

3. customer's obligation to cooperate, direct/indirect obstruction of MaxBrain in the performance of the contract

 

The customer supports MaxBrain in the fulfillment of its contractually owed services. This includes in particular the timely provision of information and data material, insofar as the customer's cooperation services require this. 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 as part 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 customer into another format, the customer shall bear the costs incurred in this connection. The customer shall also ensure that MaxBrain obtains the rights required to use such materials. The customer shall cooperate at her own expense.

 

If the customer does not make foreseeable decisions necessary for the fulfillment of the contract or makes them later than the mutually agreed or written deadlines, MaxBrain reserves the right to charge the customer for the costs of the resources released for the fulfillment of the contract during the period of obstruction.

 

If the customer does not deliver documents, materials, etc. that are essential for the fulfillment of the contract or does not deliver them in accordance with the deadlines previously agreed or fixed in writing by both parties, MaxBrain reserves the right to charge the customer for the costs of the resources released for the fulfillment of the contract during the period of the hindrance.

4. changes in performance

 

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

 

If the customer wishes to change the contractually agreed scope of the services to be provided by MaxBrain, she will express this change request 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 Act on Copyright and Related Rights.

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

 

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, contract documents or parts thereof, which are handed over to the customer, may only be used within the scope of the agreed contract. Unless otherwise agreed, the content, time and geographical use by the customer refers to the time-limited use of the SaaS. 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 sublicenses and from reproducing, renting or otherwise exploiting the services.

 

Until the remuneration has been paid in full, the customer is only permitted to use the services provided on a revocable basis. MaxBrain may revoke the use of such services for which the customer is in default of payment for the duration of the default.

 

The customer must additionally compensate MaxBrain for any further use outside the purpose of the contract.

6. guarantees from MaxBrain

 

There are no third-party ownership rights to 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 subsequently been agreed in writing by both parties.

 

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

 

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

7. product acceptance and rectification of defects

 

Subsequently identified defects in the SaaS provided by MaxBrain with jointly defined customer-specific adaptations will be rectified 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 subsequently been agreed in writing by both parties. All other work (e.g. changes, extensions or adjustments to the 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 provision, a contract is concluded when MaxBrain confirms an order from the customer in writing or in electronic form (e.g. by e-mail). A contract is also concluded when the service is provided by MaxBrain (use of the software) or is requested 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 provided 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 fixed in advance in accordance with the offer confirmation by MaxBrain applies to the provision of the SaaS. Price changes that are beyond MaxBrain's control are reserved. These can be charged to the customer at any time.

MaxBrain will invoice the customer for approved additional expenses without a written price 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 payment terms:

 

Payment of the annual SaaS usage fee for support, maintenance and hosting is due 30 days after activation. The payment period is 30 days from invoicing.

9. liability

 

MaxBrain makes every effort to provide its services to the full extent and in the best quality at all times. Any faults will be rectified as soon as possible within the scope of existing possibilities. If the fault is no longer rectified or is not rectified within a reasonable period of time for reasons that lie exclusively with MaxBrain, the customer can withdraw from the contract as the only measure. The customer expressly agrees that MaxBrain, to the extent permitted by law, disclaims all liability for any damage that the customer may suffer as a result of using the SaaS. In any case, MaxBrain's liability is limited to the direct damage.

 

In particular, any liability for simple negligence, indirect damage and consequential damage, including loss of profit, is hereby excluded.

 

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

 

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

 

The above provisions also apply in favor 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 that constitutes business secrets that the parties have received in connection with the project or have 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 third parties. Third parties are not auxiliary persons or vicarious agents (e.g. freelancers, subcontractors, etc.) engaged 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. If requested by a contracting party, the documents provided 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 assert a legitimate interest in these documents.

11. data protection

 

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

12. involvement of third parties

 

MaxBrain may at any time, at its own discretion, call in third parties to fulfill 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 compliance with the registration conditions of the respective registry.

 

If the customer commissions MaxBrain to apply for a domain name on behalf of the customer, the customer waives all claims against MaxBrain in connection with this order.

 

Registration conditions of individual domain name registries. Insofar as domains are the subject of the corresponding contractual relationship, the registration conditions of the relevant domain name registries automatically become an integral part of these provisions.

 

The customer shall compensate MaxBrain for all damages that may arise from non-compliance with the registration conditions of the relevant domain name registries.

14. additional provisions for Software-As-A-Service (SaaS)

 

a) Principle

MaxBrain provides the customer 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 to her 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 organizations 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, performance and quality of the software. The customer therefore tolerates short-term restrictions on use caused by maintenance work. MaxBrain carries out maintenance work preferably 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 customer in good time and planned jointly.

MaxBrain may 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 under no obligation to obtain these. MaxBrain reserves the right to integrate updates without incurring additional costs.

 

c) Contents

The customer undertakes to treat her access data confidentially. The customer can change her access password at any time. The customer 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. The customer is obliged to comply with Swiss and international law and generally recognized rules of conduct (netiquette, etc.) when using the storage space. The customer is responsible for the content of the information that the customer or third parties transmit or have processed, retrieve or make available for retrieval via the MaxBrain servers. In particular, the following information or data may not be distributed via the customer's storage space:

  • Information or data that infringes copyrights and related rights, design rights, trademark rights, patent rights or other intellectual property rights and similar 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;
  • Instruction or incitement to criminal behavior;
  • Unauthorized games of chance within the meaning of the Lotteries Act.

 

MaxBrain accepts no liability for the content of customers and third parties.

 

d) Misuse

In cases of misuse, MaxBrain reserves the right to block the customer's software licenses with immediate effect at the customer's expense. Misuse is deemed to be in particular the non-fulfilment of the customer's contractual obligations specified in Art. 17(c). The blocking shall remain in place until the respective facts have been clarified or the customer provides proof that the content is actually harmless. MaxBrain also reserves the right to block the service at the customer's expense if the customer's user behavior impairs the operating behavior of the servers in any way. Furthermore, the customer is prohibited from reselling, subletting or lending components of a hosting package to third parties.

 

e) E-mail

The customer must regularly check the access to 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 jeopardizes the operational stability of the MaxBrain servers is not permitted and constitutes misuse of the services provided.

 

f) Data protection

The customer is solely responsible for making backup 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 data concerned to MaxBrain again free of charge. There are various data protection risks for the customer when using the Internet. For example, data protection is not guaranteed for the unencrypted transmission of data. It is therefore to be expected that unencrypted e-mails can be read, changed or suppressed by third parties without authorization. Encrypting and encrypting transmitted information can improve protection against unauthorized 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 transmitted as part of the SaaS. Notwithstanding the provisions of Art. 9, MaxBrain accepts no responsibility for damage caused by the customer to third parties through misuse of MaxBrain's storage space. This also includes damage caused by computer viruses. MaxBrain does not guarantee that the SaaS can be used without problems from all end devices. MaxBrain accepts no liability for the loss or unauthorized modification of e-mails. MaxBrain is not liable for interruptions in operation due to troubleshooting, maintenance, infrastructure changes (switchovers, etc.) or the introduction of new or other technologies.

 

h) Support

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

 

i) User fees

If the total annual storage volume is exceeded, additional fees may be incurred. MaxBrain informs the customer in advance and gives her the option of reducing the amount of storage used by a mutually agreed date.

15 Duration of contract, termination

 

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

 

Upon termination, MaxBrain shall issue the customer with an invoice for the work performed up to the time of termination. The customer 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 in accordance with the instructions of the customer and exclusively for the purpose of providing the service. MaxBrain takes appropriate technical and organizational measures to protect customer data. The customer remains responsible for the lawfulness of the collection, processing and use of 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, court, etc. should consider one or more provisions of these terms and conditions to be void or ineffective in a decision, the binding nature of the remaining provisions shall remain unaffected. In this case, MaxBrain shall replace the invalid or ineffective provision in question with a legal provision that is as economically equivalent as possible.

18. place of jurisdiction

 

All disputes arising from or in connection with these provisions shall be subject to the jurisdiction of the ordinary courts. The exclusive place of jurisdiction is Zurich. MaxBrain reserves the right to sue the customer at its registered office.

19 Applicable law and place of jurisdiction

 

These provisions shall be governed exclusively by Swiss substantive law. The application of the UN Convention on Contracts for the International Sale of Goods (Vienna Sales Convention) is excluded. The parties agree that the exclusive place of jurisdiction is the ordinary court at the registered office of MaxBrain. MaxBrain also has the option of taking legal action against the customer at her registered office or place of residence.

 

Zurich, March 2022