1. GENERAL PROVISIONS
1.1 Scope of application:This Master Service Agreement (the "Agreement") applies to all deliveries and services of Gastimate Technologies GmbH, Agnes-Pockels-Bogen 1, 80992 Munich, registered in the Munich Commercial Register under HRB 285 141 ("GasVisor") in connection with the provision, installation, commissioning maintenance and uninstallation of smart devices IoT for gas cylinder measurement level, monitoring and management, the provision and operation of a mobile app and a web-based platform (together the "GasVisor Platform Digital") for the partially or fully automated reordering of gas cylinders and all related analog and digital services of GasVisor.
1.2 Contractual partner:This contract shall only if the customer is an entrepreneur within the meaning of Section 14 of the German Civil Code (BGB) apply (the "Customer"). The Customer may only use the services under this Agreement if the Customer has and maintains this registration during the term of this Agreement. Successfully registered on with GasVisor Agreement the customer portal of the Gases Division of Linde GmbH with its registered office in Pullach, registered in the Commercial Register of the Munich Local Court under HRB 256407 ("Linde") prior to the conclusion of this Agreement and maintains this registration during the term of this Agreement.
1.3 Valid version:This contract shall apply in the version valid at the time of conclusion of the contract as a framework agreement also for similar future contracts, without GasVisor to again in each individual case.having to refer it again in each individual case.
1.4 Exclusive validity:This contract applies exclusively. Deviating, conflicting or supplementary general terms and conditions of the customer or third parties shall only become part of the contract if and insofar as GasVisor has expressly agreed to their validity. This requirement of consent applies in all cases, e.g. even if the customer refers to its own general terms and conditions in the order and GasVisor does not expressly to themobject.
2. CONCLUSION OF CONTRACT
Offer and acceptance: The presentation of products and services by GasVisor, in particular on the internet, in brochures or in other advertising material, does not constitute a binding offer. Only by placing an order by the customer does the customer submit a binding offer, which accepted by GasVisor either by a written order confirmation or by the provision of the servicecan be. Offers from GasVisor are only binding if they are explicitly designated as an "offer".
3. SERVICES FROM GASVISOR
3.1 Scope of services:GasVisor shall provide the customer with the services agreed in the contract.- Provision of IoT devices: IoT devices are provided for rent or purchase depending on the specific agreement between the customer and GasVisor.
- Use of the IoT devices: The customer is only authorized to use the IoT devices in accordance with the contract. The sale, rental, loan or other transfer of the IoT devices to third parties is not permitted; this also applies if the customer has purchased the IoT devices.
- GasVisor Digital Services: The provided GasVisor digital platform by way of Software as a Service (SaaS); the usage license is only ever granted for a limited period of time.
- Reordering of gas cylinders: As part of the services provided by GasVisor places repeat orders for on behalf of and for the account of the customer GasVisor via the GasVisor digital platformgas cylinders filled with CO2 with a third-party supplier. The current third-party supplier is Linde. The contract for the reordering of gas cylinders therefore is concluded directly between the customer and Linde; payment of the purchase price for the reordered gas or the rent for the gas cylinders is made by the customer directly to Linde; deliveries are made by Linde directly to the customer. If the cooperation between GasVisor and Linde ends, Gas deliveries for the Customer may continue to be by Linde or alternatively made third-party supplier proposed by GasVisor.
3.2 Forwarding of delivery and performance data to Linde to optimize the provision of services and reduce delivery times:In order to ensure that GasVisor and Linde provide the contractual deliveries and services as quickly as possible and thus reduce the amount of capital tied up by the customer, GasVisor is entitled to pass on the customer's delivery and performance data to Linde.
3.3 Partial deliveries:GasVisor is entitled to make partial deliveries.
3.4 Provision of the service:The service is provided by GasVisor itself or by commissioned third parties. If GasVisor commissions third parties to provide services, remains GasVisor fully responsible to the customer.
4. INSTALLATION REQUIREMENTS AND OTHER OBLIGATIONS TO PROVIDE AND OF THE CUSTOMER COOPERATE
4.1 The scope of the installation requirements and other contributions and cooperation services (collectively the “Cooperation Services”): The Customer undertakes to ensure or provide the cooperation services listed in Annex 1 to this Agreement in full and in good time. In particular, the Customer shall ensure that the specific locations for the IoT Devices agreed in Annex 2 to this Agreement are accessible and prepared and that the named contact persons are fully instructed and authorized to accept and accompany the installation.
4.2 Default of acceptance; failure to cooperate:If the customer is in default of acceptance, fails to cooperate or if the delivery is delayed for other reasons for which the customer is responsible, GasVisor shall be entitled to claim compensation for the resulting damage, including additional expenses (e.g. storage costs). GasVisor shall be entitled to compensation for the resulting damage including additional expenses (e.g. storage-transportation and energy costs). GasVisor shall charge the following flat-rate compensation amounts for this, depending on the respective cases:Replacement of the rental device in the event of damage caused by fault:90€
Adjustment of address or delivery date up to and including three (3) working days before the agreed delivery date:99€
Address or date adjustment of the delivery less than three (3) working days before the agreed delivery date:249€
Failed delivery or collection of an IoT device for which the customer is responsible:349€
4.3 Compensation:Proof of higher damages and GasVisor's statutory claims (in particular compensation for additional expenses, reasonable compensation, withdrawal) remain unaffected; however, a lump sum is to be offset against further claims for compensation. The customer has the right to prove that GasVisor has incurred no damages at all or only significantly lower damages than the respective lump sum.
5. PRICES AND TERMS OF PAYMENT
5.1 Prices:The following prices apply:- The contractual services shall be in accordance with the remunerated prices agreed in the contract.
- Further services can at the be obtained from GasVisor prices offered in the contract.
- All prices are subject to statutory value added tax.
5.2 Terms of payment:Invoices shall be issued in accordance with the contractual agreement, which shall be agreed individually for each service. Unless otherwise agreed, the Software-as-a-Service fees for the use of the GasVisor digital platform and - in the case of the rental of IoT devices - the usage transfer fees for the GasVisor IoT devices shall be paid annually in advance. The other fees are payable after the respective delivery or provision of the service. Invoices are due for payment within 30 days of the invoice date.
5.3 SEPA direct debit:Unless otherwise contractually agreed, the customer shall make fees and other payments by SEPA direct debit. For this purpose, the customer shall set up a SEPA direct debit mandate in favor of GasVisor (SEPA direct debit mandate for corporate customers). The customer authorizes GasVisor to use the SEPA direct debit mandate for all fees, charges and other payments arising from the business relationship. In the event of a return debit note for which the customer is responsible, the customer shall pay a flat-rate return debit note fee in the amount specified in the fee catalog. The customer reserves the right to prove that no or lower costs were incurred.
5.4 Price adjustments:GasVisor is entitled to the contractually agreed prices for the contractual services increase 5% by up to once a year, on January 1st of each year.
5.5 Default:In the event of late payment, GasVisor is entitled to interest on arrears at a rate of chargep.a. above the prime rate. GasVisor is also entitled to charge a lump sum of EUR 40.00 in accordance with Section 288 (5) BGB in the event of late payment by the customer. Proof of higher damages and the assertion of further statutory claims shall remain unaffected; however, the lump sum for default shall be offset against further monetary claims. In addition, GasVisor reserves the right to suspend the provision of further services if the customer is in arrears with a payment or to terminate the contract without notice if the delay lasts for more than 60 days.
6. DELIVERY AND COMMISSIONING
6.1 Terms of delivery: The shall delivered IoT devices be within Germany (mainland only). The Customer's specific delivery locations are set out inAnnex 2to this Agreement. The Customer can select the delivery date(s) on the GasVisor digital platform; delivery dates within six (6) weeks of conclusion of the contract are available there in any case. If an agreed delivery date cannot be met for reasons for which GasVisor is responsible, the Customer may select a new delivery date within a maximum of four (4) weeks.
6.2 Non-availability of IoT devices: If GasVisor is unable to meet binding delivery deadlines for reasons for which GasVisor is not responsible (non-availability of the service), GasVisor shall inform the customer of this immediately and at the same time inform the customer of the expected new delivery deadline. If the service is still not available within the new delivery period, GasVisor is entitled to withdraw from the contract in whole or in part; any consideration already paid by the customer will be refunded immediately. The unavailability of the service is due, for example, to disruptions in the operational processes or in the supply chains due to force majeure.
6.3 Commissioning: If contractually agreed, GasVisor will commission the IoT devices. If the Customer carries out the commissioning itself, this must be done in accordance with the instructions provided by GasVisor. If the Customer has not carried out the commissioning in accordance with these instructions, GasVisor shall not be liable.
6.4 Handover: After installation, GasVisor or a third party commissioned by GasVisor will draw up a takeover protocol.
6.5 Return and condition of IoT devices: The customer must ensure that a rented IoT device is in perfect, complete condition when it is returned (this applies, among other things, to the belt, rust protection, battery cap, battery, wrap-around protection, display, etc.). If a rental device is in a defective condition when it is returned, the resulting costs shall be borne by the customer. GasVisor will charge the flat-rate compensation amounts set out in section 4.2 for this.
6.6 Compensation: Proof of higher damages and GasVisor's statutory claims (in particular compensation for additional expenses, reasonable compensation, withdrawal) remain unaffected; however, a lump sum is to be offset against further claims for compensation. The customer has the right to prove that GasVisor has incurred no damages at all or only significantly lower damages than the respective lump sum.
8. RETENTION OF TITLE
8.1 Secured claims: GasVisor retains title to IoT devices sold until full payment of all present and future claims arising from this contract and an ongoing business relationship (secured claims).
8.2 Impermissible actions; obligation to notify: The IoT devices subject to retention of title may not be pledged to third parties or assigned as security before full payment of the secured claims. The customer must notify GasVisor immediately in writing if an application is made to open insolvency proceedings or if third parties seize the IoT devices belonging to GasVisor (e.g. seizures).
8.3 Withdrawal; demand for return: In the event of breach of contract by the Customer, in particular non-payment of a purchase price or fee due under a Purchase Agreement, GasVisor shall be entitled to rescind the Purchase Agreement and/or demand the the IoT Devices on the basis of the retention of title return of. A demand for return does not also include a declaration of withdrawal; GasVisor is rather entitled to only the the IoT devices demand return of and to reserve the right to withdraw. If the Customer fails to pay a due purchase price or a due fee, GasVisor may only assert these rights if GasVisor has previously set the Customer a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.
9. WARRANTY AND LIABILITY
9.1 Warranty: GasVisor undertakes to provide the services carefully and professionally in accordance with the current state of the art. GasVisor warrants that the delivered IoT devices are free from material defects and defects of title. The warranty period is twelve (12) months from the transfer of risk. This does not apply if GasVisor has fraudulently concealed the defect or has assumed a guarantee for the quality of the item.
9.2 Liability: GasVisor is liable as follows:
- GasVisor is liable without limitation for damages caused by intent or gross negligence, as well as for damages resulting from injury to life, body or health and under the Product Liability Act.
- In cases of slightly negligent breach of an essential contractual obligation, the fulfillment of which is essential for the proper execution of this contract and on the observance of which the contractual partner regularly relies and may rely (so-called cardinal obligation), GasVisor is liable limited to the occurrence of the foreseeable, typically occurring damage at the time of conclusion of the contract; sentence 1 remains unaffected.
- In the cases of the preceding bullet point, GasVisor's liability is limited to 50% of the amount of the respective order value. Indirect damages and consequential damages including loss of profit are excluded.
- In all other respects, unless expressly agreed otherwise, GasVisor's liability is excluded.
- GasVisor's strict liability for initial defects in accordance with § 536a para. 1 BGB is also excluded. This does not apply to claims due to the absence of warranted characteristics from the outset.
The above liability provisions apply accordingly to the conduct of and claims against employees, legal representatives and vicarious agents of GasVisor.
10. OFFSETTING AND RIGHT OF RETENTION
10.1 Offsetting: The customer is only entitled to offset undisputed or legally established claims.
10.2 Right of retention: The customer is only entitled to withhold payment due to undisputed or legally established claims arising from or in connection with this contract.
11. CONTRACT TERM AND TERMINATION
11.1 Contract term: The contract is for a minimum term of concluded year. It is automatically extended by a further year in each case unless it with notice one 1() is terminated three (3) months' to the end of the minimum term or an extension period.
11.2 Extraordinary termination: Both parties have the right to terminate the contract for good cause without notice. Good cause shall be deemed to exist if one of the parties is in material breach of its contractual obligations and fails to remedy this breach within a reasonable period despite a warning. Good cause entitling GasVisor to terminate this contract without notice also exists if the customer is no longer registered on Linde's customer portal.
11.3 Written form: Any termination must be in writing in accordance with § 126 BGB; text form is not sufficient.
11.4 Obligation to return: Upon termination of the contract, the customer is obliged to return the IoT devices received from GasVisor in a proper condition. Any damage or loss of the IoT devices shall be borne by the Customer. GasVisor reserves the right to charge a replacement for any IoT devices not returned or damaged.
11.5 Special right of termination: If the cooperation between GasVisor and the current third-party supplier Linde ends, the customer is entitled to special termination of this contract. In this case, GasVisor shall reimburse the customer for half of any fees paid by the customer in advance, which shall pro rata to the remaining term of the contract.
12. CONFIDENTIALITY
12.1 Confidential Information: Confidential Information means all information and documents of GasVisor that are marked as confidential or are to be regarded as confidential due to the circumstances, in particular information about offers, calculations, concepts, digital strategies, customer, supplier and other business relationships of GasVisor, technical, operational and other operational processes, know-how, information about GasVisor's corporate strategy, the content of this Agreement and all work results.
12.2 Confidentiality obligation: The customer is obliged to maintain secrecy about such confidential information. This obligation shall continue for an unlimited period after termination of the contract.
12.3 Exceptions: Such confidential information is excluded from this obligation, which was demonstrably already known to the customer when this contract was concluded or which subsequently becomes known to the customer from a third party without violating a confidentiality agreement, statutory provisions or official orders; which are publicly known at the time of conclusion of this contract or become publicly known thereafter, insofar as this is not based on a breach of this contract; which were developed by the customer himself; which must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the Customer obliged to disclose shall inform GasVisor in advance and give GasVisor the opportunity to take action against the disclosure.
- which was demonstrably already known to the customer when this contract was concluded or which subsequently becomes known to the customer from a third party without violating a confidentiality agreement, statutory provisions or official orders;
- which are publicly known at the time of conclusion of this contract or become publicly known thereafter, insofar as this is not based on a breach of this contract;
- which were developed by the customer himself;
- which must be disclosed due to legal obligations or by order of a court or authority. To the extent permissible and possible, the Customer obliged to disclose shall inform GasVisor in advance and give GasVisor the opportunity to take action against the disclosure.
12.4 Scope of disclosure: The customer shall only disclose confidential information to those employees who need to know it for the execution of this contract and shall also oblige these employees to maintain confidentiality to the extent permitted by labor law for the period after their departure.
13. DATA PROTECTION
13.1 Data processing: GasVisor undertakes to comply with the applicable data protection regulations. All personal data will be treated confidentially and used only within the scope of the contractual agreements.
13.2 Consent: The customer consents to GasVisor storing and processing the personal data collected as part of the contractual relationship insofar as this is necessary to fulfill the contractual obligations. The data will be passed on to third parties only if this is necessary for the fulfillment of the contract or if the customer has expressly consented to this.
14. ASSIGNMENT OF RECEIVABLES
14.1 Assignment: GasVisor is entitled to assign payment claims and other claims against the customer individually or in their entirety to a third party (e.g. a financing partner). The assignment of rights by the customer requires the prior written consent of GasVisor.
14.2 Payments to third parties: If payment claims against the customer are assigned to a third party, GasVisor may require the customer to make payments exclusively to the third party and to issue the third party with a SEPA direct debit mandate to collect the payments.
15. FINAL PROVISIONS
15.1 Amendments and supplements: Amendments and additions to the contract must be made in text form (including e-mail). This also applies to the waiver of the text form requirement. Clause 9.3 remains unaffected.
15.2 Place of performance: The place of performance is the registered office of GasVisor.
15.3 Place of jurisdiction: The place of jurisdiction for all disputes arising from or in connection with this contract is, as far as legally permissible, Munich.
15.4 Applicable law: This contract is subject to German law to the exclusion of the conflict of laws and the UN Convention on Contracts for the International Sale of Goods (CISG).
15.5 Severability clause: Should individual provisions of this contract be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions of this contract. The same applies in the event that the contract contains a loophole.