Terms and Conditions
General Terms and Conditions of MaxBrain AG
1. General Provisions, Principles of Cooperation
MaxBrain AG (hereinafter referred to as “MaxBrain”) operates a web application/service on the Internet at “yourdomain.maxbrain.com” as well as on customer domains, along with associated smartphone apps (Google Play, App Store), through which companies manage their training and continuing 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, or 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. Any conflicting or supplementary terms and conditions of the Customer are valid only to the extent that they are accepted in writing by MaxBrain. The parties shall cooperate in good faith and shall immediately inform each other of any deviations from the agreed procedure or of any doubts regarding the correctness of the other party’s course of action. If the Customer realizes that its own information and requirements are incorrect, incomplete, ambiguous, or unfeasible, it must immediately notify MaxBrain of this fact and the consequences apparent to it.
The contracting parties shall designate contact persons and their respective deputies. These individuals shall manage and oversee the execution of the contractual relationship on behalf of the contracting party that designated them, acting responsibly and competently. The parties shall promptly notify each other of any changes regarding the designated individuals. Until such notification is received, the previously designated contact persons and/or their deputies shall be deemed authorized to make and receive declarations within the scope of their existing authority to represent the party. The contact persons shall consult with one another at regular intervals regarding progress and obstacles in the performance of the contract in order to be able to intervene in the execution of the contract as necessary.
2. Dates
The dates will be set by mutual agreement.
MaxBrain is not responsible for delays in performance due to force majeure (e.g., strikes, official orders, general telecommunications disruptions, etc.) and circumstances within the Customer’s sphere of responsibility (e.g., failure to provide necessary cooperation in a timely manner) are beyond MaxBrain’s control and entitle MaxBrain to postpone the provision of the relevant services for the duration of the hindrance plus a reasonable ramp-up period. MaxBrain will notify the customer of any delays in performance due to force majeure.
3. The Customer’s Obligations to Cooperate; Direct or Indirect Obstruction of MaxBrain’s Performance of the Contract
The Client shall assist MaxBrain in fulfilling its contractual obligations. This includes, in particular, providing information and data in a timely manner, to the extent required by the Client’s cooperation. The Client shall provide MaxBrain with detailed instructions regarding the services to be performed by MaxBrain. To the extent that the Client has agreed to provide MaxBrain with materials of any kind in connection with the performance of the contract, the Client shall make these materials available to MaxBrain immediately and in a standard, readily usable format—preferably digital. If it is necessary to convert the materials provided by the Client into another format, the Client shall bear the costs incurred in this regard. The Client shall also ensure that MaxBrain receives the rights necessary to use such materials. The Client shall perform any required cooperation at its own expense.
If the customer fails to make foreseeable decisions necessary for the performance of the contract, or makes such decisions later than the deadlines mutually agreed upon or set in writing, MaxBrain reserves the right to bill the customer for the costs of the resources allocated to fulfill the contract during the period of the customer’s delay.
If the customer fails to provide documents, materials, etc., that are essential for the performance of the contract, or fails to provide them by the deadlines previously agreed upon and initialed by both parties or set forth in writing, MaxBrain reserves the right to bill the customer for the costs of the resources allocated to fulfill the contract during the period of the customer’s failure to comply.
4. Changes to Benefits
MaxBrain is entitled to modify or deviate from the services to be provided under the contract if the modification or billing is reasonable for the customer, taking into account MaxBrain’s interests.
If the customer wishes to change the contractually specified scope of services to be provided by MaxBrain, she must submit this request for change to MaxBrain in writing.
5. Copyrights and Scope of Use
The copyrights to the SaaS developed by MaxBrain belong to MaxBrain. MaxBrain may exercise these rights in accordance with the provisions of the Federal Act on Copyright and Related Rights.
MaxBrain is entitled to indicate its authorship of the SaaS it has created in a manner to be determined by it.
The scope of permitted use of the SaaS developed by MaxBrain is determined by the purpose of the contract concluded with the Customer. In particular, the SaaS developed by MaxBrain, as well as any contractual documents or parts thereof provided to the Customer, may be used exclusively within the framework of the agreed-upon contract. Unless otherwise agreed, the customer’s use—in terms of content, duration, and geographic scope—is limited to the time-limited use of the SaaS. Any further use beyond the purpose of the contract is not permitted without MaxBrain’s authorization. In particular, the Customer is prohibited from granting sublicenses and from reproducing, renting, or otherwise exploiting the services.
Until payment in full has been made, the customer is permitted to use the services provided only on a revocable basis. MaxBrain may revoke the customer’s right to use any services for which the customer is in default of payment for the duration of the default.
For any further use beyond the scope of the contract, the customer must pay MaxBrain additional compensation.
6. MaxBrain's Guarantees
No third parties hold any ownership rights to the SaaS.
Subject to the provisions of Articles 2 and 3 in particular, MaxBrain guarantees the functions defined at the time of the analysis, as well as any new or modified functions, provided that such functions have been subsequently agreed upon in writing by both parties.
This warranty does not apply if a malfunction is attributable to circumstances beyond its control, such as (but not limited to):
Changes to the conditions of use and operation. Tampering with programs by the customer or third parties. Operating errors by the customer or third parties. Any other warranty is expressly excluded.
7. Product Acceptance and Rectification of Defects
Defects in the SaaS provided by MaxBrain—including jointly defined customer-specific customizations—that are discovered after the fact will be rectified by MaxBrain free of charge for up to six months after acceptance. Only deviations from the functions defined at the time of the order, or from new or modified functions—provided these were subsequently agreed upon in writing by both parties—shall be considered defects. All other work (e.g., changes, enhancements, or modifications to functions, hardware-related work, etc.) will be billed separately by MaxBrain to the customer.
8. Conclusion of the Contract, Costs, and Payment Terms
Unless otherwise specified, a contract is formed when MaxBrain confirms the customer’s order in writing or electronically (e.g., by email). A contract is also formed when the service provided by MaxBrain (use of the software) is made available or utilized by the customer. MaxBrain reserves the right to confirm the conclusion of a contract by means of an invoice.
Unless otherwise specified in the written offer, MaxBrain is bound by it for a period of 20 days. Information provided by telephone is binding only if it has been confirmed in writing (including by email).
Unless otherwise specified in individual cases, the price for the provision of the SaaS service shall be the price determined in advance as set forth in the quote confirmation issued by MaxBrain. MaxBrain reserves the right to make price changes that are beyond its control. Such changes may be billed to the customer at any time.
MaxBrain will bill the customer for approved additional expenses for which no price has been specified in writing based on the actual time and effort involved (hourly rate). All prices agreed upon in writing or verbally are exclusive of value-added tax.
Unless otherwise agreed, the following terms and conditions apply with respect to payment terms:
Payment of the annual SaaS usage fee, which covers support, maintenance, and hosting, is due 30 days after service activation. The payment term is 30 days from the date of invoice.
9. Liability
MaxBrain makes every effort to provide its services in full and at the highest quality at all times. Any disruptions will be resolved as soon as possible within the limits of existing capabilities. If, for reasons attributable exclusively to MaxBrain, the disruption cannot be resolved or cannot be resolved within a reasonable period of time, the customer may, as its sole remedy, terminate the contract. The customer expressly agrees that, to the extent permitted by law, MaxBrain disclaims all liability for any type of damage that the customer may incur through the use of the SaaS. In any case, MaxBrain’s liability is limited to direct damages.
Any liability arising from ordinary negligence, as well as liability for indirect and consequential damages, including lost profits, is hereby expressly excluded.
MaxBrain shall not be liable for the loss of data and/or programs to the extent that the damage results from the customer’s failure to perform 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 claim for damages may be made on that basis.
The foregoing provisions also apply in favor of MaxBrain’s agents and auxiliaries.
10. Confidentiality
Both parties agree to maintain confidentiality with respect to third parties. This confidentiality obligation covers all information that constitutes trade secrets which the parties have received in connection with the project or have obtained from the project.
The documents provided to the other party, as well as the knowledge and experience shared, may be used exclusively for the purpose of cooperation between the two parties. They may not be disclosed to third parties, unless they are intended to be disclosed to third parties or are already known to them. Third parties do not include auxiliary persons or agents engaged to carry out the contractual relationship (such as freelancers, subcontractors, etc.).
Furthermore, the parties agree to maintain confidentiality regarding the content of this agreement and any information obtained in the course of its execution.
The confidentiality obligation shall remain in effect even after the contractual relationship has ended. If requested by one of the contracting parties, the documents provided by that party—such as strategy papers, briefing documents, etc.—must be returned to it upon termination of the contractual relationship, unless the other contracting party can demonstrate a legitimate interest in such documents.
11. Data Protection
Certain customer data is processed in accordance with the Swiss Data Protection Act. The customer agrees that MaxBrain may transfer her data to partners abroad and that such data may be stored there temporarily or permanently.
12. Involvement of Third Parties
MaxBrain may, at any time and at its sole discretion, engage third parties to fulfill its contractual obligations. In doing so, it is responsible for carefully selecting and instructing such third parties.
13. Additional Provisions for General Internet Applications
Availability of Domain Names. MaxBrain is not obligated to verify the availability of a domain or compliance with the registration terms and conditions of the respective registry.
To the extent that the customer instructs MaxBrain to apply for a domain name on the customer’s behalf, the customer waives all claims against MaxBrain arising from this instruction.
Registration terms and conditions of individual domain name registries. To the extent that domains are the subject of the relevant contractual relationship, the registration terms and conditions of the respective domain name registries automatically become an integral part of these provisions.
The customer shall indemnify MaxBrain for any damages that may arise from failure to comply with the registration terms and conditions of the respective 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 transmits data via the Internet. The customer uses the storage space leased to her by MaxBrain to operate a learning management system. The following provisions apply only to the learning management system of the customer explicitly named in the respective order; other individuals or organizations are not included.
b) Services
According to the product description, MaxBrain provides the customer with a SaaS solution (browser, mobile apps, logins, etc.) in exchange for a usage fee. The usage fee must be paid in advance; otherwise, MaxBrain reserves the right to suspend the service. By performing maintenance on the software or on the servers on which the software runs, MaxBrain optimizes the software’s operation, performance, and quality. The customer therefore agrees to tolerate short-term usage restrictions resulting from maintenance work. MaxBrain prefers to perform maintenance work during off-peak hours (between 5:30 p.m. and 8:30 a.m.). The customer will be notified well in advance of any extended interruptions due to maintenance work, and such interruptions will be planned jointly.
MaxBrain may make an update or enhancement to the software or individual components available as a new version or update. The customer is required to use the new version or update. MaxBrain may offer new features as paid add-ons. The customer is under no obligation to purchase them. This does not preclude the integration of updates without incurring additional costs.
c) Content
The customer agrees to keep her login credentials confidential. The customer may 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 obligated to comply with Swiss and international law as well as generally accepted 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, 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, audio or visual recordings, and depictions as defined in Article 197 of the Swiss Criminal Code;
- Racial discrimination as defined in Article 261bis of the Swiss Criminal Code;
- Depictions of violence as defined in Article 135 of the Swiss Penal Code (StGB);
- Incitement to violence as defined in Article 259 of the German Criminal Code;
- Instructions or incitement to commit a criminal act;
- Unauthorized gambling as defined by the Lottery Act.
MaxBrain accepts no liability for content provided by customers or third parties.
d) Improper Use
In cases of misuse, MaxBrain reserves the right to suspend the customer’s software licenses with immediate effect at the customer’s expense. Misuse includes, in particular, the customer’s failure to fulfill the contractual obligations set forth in Article 17(c). The suspension shall remain in effect until the matter in question has been clarified or the customer provides proof that the content is in fact harmless. MaxBrain also reserves the right to suspend the service at the customer’s expense if the customer’s usage behavior impairs server performance in any way. Furthermore, the customer is prohibited from reselling, subleasing, or lending components of a hosting package to third parties.
e) Email
The customer must regularly check the messages in her personal email inbox and avoid exceeding the storage limit. Sending unsolicited bulk emails (spamming) via the MaxBrain servers and operating 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 any data she transmits to MaxBrain. All data entered into MaxBrain is backed up daily and stored for 3 months. In the event of data loss, the customer is obligated to resubmit the relevant data to MaxBrain free of charge. When using the Internet, the customer faces various data protection risks. For example, data protection cannot be guaranteed when data is transmitted unencrypted. It is therefore possible that unencrypted emails may be read, altered, or suppressed by third parties without authorization. Encrypting and scrambling transmitted information can improve protection against unauthorized access.
g) Liability
The Customer uses the SaaS at her own risk. MaxBrain disclaims all liability for the completeness, accuracy, and quality of the data and information transmitted through the SaaS. Notwithstanding the provisions of Article 9, MaxBrain assumes no liability for damages that the Customer causes to third parties through misuse of MaxBrain’s storage space. This also includes damages caused by computer viruses. MaxBrain does not guarantee that the SaaS will function without issues on all end devices. MaxBrain disclaims all liability for the loss or unauthorized alteration of emails. MaxBrain is not liable for service interruptions resulting from troubleshooting, maintenance, infrastructure changes (switchover, etc.), or the introduction of new or different technologies.
h) Support
All requests for technical support can be sent by email to [email protected]. If the support required exceeds the usual scope, MaxBrain reserves the right to bill the customer for the associated costs according to the currently applicable rates.
i) Usage Fees
If the total annual storage limit is exceeded, additional fees may apply. MaxBrain notifies the customer in advance and gives her the opportunity to reduce her storage usage by a mutually agreed-upon date.
15. Term of the Agreement, Termination
Each contract takes effect upon signing and is entered into for an indefinite term or for the selected contract term. The contract may be terminated at the end of each year, subject to a three-month notice period.
Upon termination, MaxBrain will issue an invoice to the customer for the work performed up to the date of termination. The customer agrees to pay the invoice amount within 30 days of receipt; fees that have already been charged or invoiced will not be credited or refunded.
To the extent that customer data constitutes personal data, the following applies: MaxBrain processes customer data exclusively on behalf of and in accordance with the client’s instructions, and solely 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 applicable legal provisions, in particular the Swiss Data Protection Act (DSG).
16. Changes
MaxBrain reserves the right to modify 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., were to rule in a decision that one or more provisions of these Terms are void or invalid, the validity of the remaining provisions shall remain unaffected. In such a case, MaxBrain shall replace the relevant void or invalid provision with a lawful provision that is as economically equivalent as possible.
18. Jurisdiction
The ordinary courts shall have jurisdiction over all disputes arising out of or in connection with these provisions. The exclusive venue is Zurich. This is without prejudice to MaxBrain’s right to bring a claim against the customer at the customer’s place of business.
19. Governing Law and Jurisdiction
These provisions are governed exclusively by Swiss substantive law. The application of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention) is excluded. The parties agree that the exclusive venue for legal proceedings shall be the ordinary court at MaxBrain’s place of business. MaxBrain also has the option of bringing legal action against the customer at the customer’s place of business or residence.
Zurich, March 2022