General terms and conditions on the use of the virtualfab Software and the virtualfab Platform
- Scope of application and subject matter of the GTC
1.1 fabnamix GmbH, Flossplatz 6, 04107 Leipzig, Germany, (hereinafter referred to as fabnamix) is the owner of the Software as a Service application “virtualfab” (hereinafter referred to as Software) and operator of the virtualfab Platform (hereinafter referred to as Platform).
1.2 The Software enables companies (hereinafter referred to as Users) in the field of industrial manufacturing to create and commission “virtual factories” or to participate in them and to accept orders and thus to digitalise manufacturing processes. In addition, the Software enables the exchange of process data during manufacturing processes.
1.3 On the Platform, Users can either create “virtual factories” themselves and commission production processes (hereinafter Customer) or take over production processes stored within “virtual factories” (hereinafter Producer). In different virtual factories, a User can also assume different roles.
1.4 The object of the Platform is the mediation of the conclusion of contracts between Customers and Producers for the purpose of realising the “virtual factories” and implementing the individual production tasks between Customer and Producer (hereinafter Production Contract). All Production Contracts are concluded exclusively between the respective Users. fabnamix acts merely as an intermediary whose activity is directed solely towards bringing Users together.
1.5 These General Terms and Conditions (GTC) apply exclusively
a) for the contractual relationships between fabnamix and the Users of the Software and Platform (hereinafter: User Agreement) and
b) for the conclusion of the Production Contracts between the Users of the Platform and their invoicing. Furthermore, fabnamix is not responsible for the Production Contracts concluded between the Users.
1.6 fabnamix does not accept deviating terms and conditions of the Users vis-à-vis fabnamix. This also applies if fabnamix does not expressly object to the inclusion.
1.7 The Software and Platform are aimed exclusively at entrepreneurs within the meaning of § 14 BGB (German Civil Code).
1.8 The operation of the Platform does not constitute a brokerage activity within the meaning of §§ 93 ff. HGB (German Commercial Code) on the part of fabnamix. fabnamix does not act as a broker, but merely operates the Platform as a technical service.
Part 1: User Agreement between fabnamix and User
- Subject matter and conclusion of the User Agreement
2.1 The object of the User Agreement is the granting of the use of the Software in the User’s company via the Internet, limited in time to the duration of the User Agreement, as well as the provision of storage space on the servers of fabnamix.
2.2 The conclusion of the User Agreement between fabnamix and the User takes place as follows:
a) The User makes the offer to conclude the User Agreement by successfully completing the registration on the Platform. By completing the registration, the User agrees to the validity of these GTC in the version valid at the time of registration, which he confirms by means of an opt-in box during the registration process.
b) The acceptance of the offer takes place through a confirmation declaration on the part of fabnamix or through activating and enabling the User account.
2.3 The remuneration to be paid by the User to fabnamix for the use of the Software results from the Pricing Model attached as Annex 1. Insofar as the User does not make any other selection, he shall be placed in the lowest tariff upon conclusion of the User Agreement. A later change to a higher tariff shall be agreed separately between fabnamix and the User.
2.4 Within the scope of registration, the User must provide all requested data of his company (including VAT ID, bank details, etc.) completely and truthfully. After completing the registration process, the registration must be confirmed by the User via an e-mail sent to the e-mail address provided by the User.
2.5 On the part of the User, sufficient authorisation must be assured and proven. This is done i) by the assurance of authorisation given during registration, ii) the upload of proof of authorisation and iii) the completed team set-up involving one or more legally authorised representatives.
2.6 If the User voluntarily uploads his company logo to his User account, he hereby grants fabnamix, free of charge, a non-exclusive, non-sublicensable and non-transferable right, limited in time to the duration of the User Agreement, to use the company logo for the purpose of improved visualisation of the Platform in connection with the User account. The right may be revoked at any time. Within a User account, different team member accounts can be created as part of the team setup. If a team member uploads a profile picture of himself for his account, the team member thereby consents to the use of the profile picture. The User will inform his team members about this.
- Services of fabnamix; Software and storage space
3.1 fabnamix grants the User the use of the most current version of the Software for the number of authorised Users defined within the framework of the team setup on the Platform via the Internet by means of access through a browser or via API.
3.2 fabnamix guarantees the functionality and availability of the Software for the duration of the contractual relationship and will maintain it in a condition suitable for contractual use.
3.3 fabnamix may update and further develop the Software at any time and, in particular, adapt it due to a changed legal situation, technical developments or to improve IT security. fabnamix will take the legitimate interests of the User into account appropriately and inform the User in good time about necessary updates.
3.4 fabnamix does not owe an adaptation to the individual needs or the IT environment of the User.
3.5 fabnamix will regularly carry out maintenance on the Software and inform the User of this in good time. Maintenance will regularly be carried out outside the User’s normal business hours, unless due to compelling reasons maintenance must be carried out at a different time.
3.6 fabnamix shall provide the User with storage space on its servers for the storage of data and for the purpose of using the Software. fabnamix shall ensure that the data can be retrieved within the scope of using the Software. The extent of the storage space provided is determined in accordance with Annex 1.
3.7 fabnamix will take state of the art measures to protect the data. However, fabnamix does not have any custodial or safekeeping obligations with regard to the data. The User is responsible for a sufficient backup of the data.
3.8 The User remains the owner of the data stored on the servers of fabnamix and can demand their return at any time.
- Scope of use and rights
4.1 The Software is not physically transferred to the User.
4.2 The User shall be granted non-exclusive, non-sublicensable and non-transferable rights to use the Software by means of access via a browser or API in accordance with the contractual provisions for the most current version of the Software for the number of team members specified in the context of the team setup on the Platform.
4.3 The User may only use the Software within the scope of his own business activities by his own personnel. The User is not permitted to use the Software for any other purpose.
- Creation, set up and participation in a “virtual factory”
5.1 After completing the registration, the User has the possibility to create his own “virtual factory” in the role of the Customer.
5.1.1 For this purpose, the User must provide various details, including the product to be manufactured, the parts to be processed and their origin (self-provision, procurement on the market), the required production stages, logistics routes and any preferences in the selection of Producers.
5.1.2 The Customer can either make the settings, in particular the selection of Producers, individually or have fabnamix make suggestions based on an automated ranking.
5.1.3 To coordinate the planned production chains, fabnamix provides Users with a communication tool via its Platform; the Customer is enabled to communicate with all Producers and the Producers are enabled to communicate with the Customer and the Producers directly upstream and downstream.
5.1.4 The Customer and Producers can also negotiate the respective production parameters via this communication tool.
5.1.5 fabnamix does not check the content of the “virtual factory” created by the Customer. The Customer alone is responsible for the functioning of the “virtual factory” created by him. fabnamix does not give any assurance about the suitability, availability or quality of the services offered by a Producer and does not assume any responsibility in this respect.
5.2 After completing the registration, the User has the possibility to accept production orders in “virtual factories” of third parties in the role of a Producer.
5.3 The Users are obliged to make all agreements on production parameters that are essential to the contract via the communication tool of the Platform or to add them to the Platform subsequently. fabnamix stores the agreements that are essential to the contract that are made or added via the communication tool of the Platform and thus provides the Users with precise documentation of the agreements that are the subject matter of the contract (hereinafter referred to as the Quality Agreement).
fabnamix sets up a support service for User enquiries about functions of the Software. Requests can be made via the support hotline indicated on the fabnamix website at the times indicated there or by e-mail. Requests will be processed in the chronological order in which they are received.
- Service Levels; Troubleshooting
7.1 fabnamix guarantees an overall availability of the services of at least 99.5% per month at the transfer point. The transfer point is the router output of the fabnamix data centre.
7.2 Availability is defined as the User’s ability to use all main functions of the Software. Necessary maintenance work is not taken into account when determining availability. Times of insignificant disruptions are not taken into account when calculating availability. The measuring instruments of fabnamix in the computer centre are decisive for the proof of availability.
7.3 The User must report any faults to fabnamix without delay.
- Duties of the User
8.1 The User shall protect the access data transmitted to him from access by third parties and keep it safe in accordance with the state of the art. The User shall ensure that it is only used to the contractually agreed extent. Unauthorised access must be reported to fabnamix immediately.
8.2 The User is obliged not to store any data on the storage space provided, the use of which violates applicable law, official orders, third-party rights or agreements with third parties.
8.3 The User shall check the data for viruses or other harmful components before storing or using them in the Software and shall use state of the art measures (e.g. virus protection programs) for this purpose.
8.4 The User is responsible for regularly making appropriate data backups.
8.5 The User is obliged to immediately correct all changes, inaccuracies and imprecisions in his User account information.
8.6 fabnamix may temporarily block or permanently delete a User account if insufficient or false User account information is provided, the User is on a sanctions list, the User account has been used for (attempted) acts of deception or Production Contracts agreed with other Users have repeatedly not been fulfilled.
8.7 The User account is not transferable. Excluded are cases of change of name, merger or other legal succession, which must be proven to fabnamix. Passing on the access data to third parties is prohibited.
Part II: Production Contracts between Users
- Subject matter and conclusion of the Production Contract between Customer and Producer
9.1 The Production Contract is concluded between the Customer and the Producer. If a “virtual factory” contains several Producers, the Customer shall conclude a separate Production Contract with each Producer. fabnamix shall under no circumstances become a party to a Production Contract.
9.2 The conclusion of a Production Contract between the Customer and the Producer can take place both via the Platform and outside the Platform. If the Production Contract is to be concluded via the Platform, the following provisions shall apply:
a) The Customer submits the offer to conclude the Production Contract after completion of the preceding communication by clicking on the “Play” button within his “virtual factory”. If several Producers are involved in the “virtual factory”, the Customer shall submit a separate offer to each Producer. By clicking on the “Play” button, the status quo of the previous contract negotiations within this “virtual factory” is fixed on the part of fabnamix and recorded as a Quality Agreement within the meaning of clause 5.3 recorded.
b) The acceptance of the offer to conclude the Production Contract in the “virtual factory” shall be effected by a declaration of acceptance by the respective Producer. The Producer is required to accept or reject the offer within one week. If the Producer does not respond within this period, the offer shall be deemed rejected.
c) If several Producers are involved in the “virtual factory”, each individual Production Contract is concluded under the condition precedent that all Production Contracts are concluded within the same “virtual factory”.
9.3 If the Production Contract is concluded via the Platform, the Users agree that the subject matter of the Production Contract results exclusively from the Quality Agreement in accordance with section 5.3 and agreements made outside the Platform shall only be binding if they have been entered subsequently on the Platform in accordance with clause 5.3.
9.4 If the Production Contract is concluded via the Platform, the Users further agree that the Production Contract is concluded under the balanced General Terms and Conditions of Production provided by fabnamix in accordance with Annex 2.
9.5 In the event of conflicting terms and conditions, the following order of validity shall apply:
a) contractually agreed terms and conditions between the Users and fabnamix, including these GTC,
b) conditions contractually agreed between the Users, including the General Terms and Conditions of Production in accordance with Annex 2,
c) relevant statutory provisions.
9.6 Users may also conclude a Production Contract outside the Platform. In this case, the statutory provisions shall apply.
9.7 fabnamix is not liable for Production Contracts, the correctness and/or completeness of the information provided by the Users as well as the execution of the Production Contracts between the Customer and the Producer. fabnamix is in particular expressly not liable for claims arising from the warranty of defects and delay in performance. Corresponding claims exist solely in the contractual relationship between Customer and Producer.
- Agency agreement between Users and fabnamix
By submitting their declarations aimed at the conclusion of the Production Contract (offer of the Customer, acceptance of the Producer), the Users commission fabnamix with the mediation of the conclusion of the Production Contract. The subject of this mediation contract is the proper forwarding of the information transmitted by the Customer and Producer to fabnamix to the respective other User.
- Mediation commission for fabnamix
11.1 For each Production Contract successfully mediated via the Platform, fabnamix shall receive a mediation commission in accordance with the Pricing Model attached as Annex 1.
11.2 The mediation commission is owed by the Customer.
- Payment processing of the Production Contract remuneration by fabnamix
12.1 Each Producer shall indicate the completion of the work owed by him under the respective Production Contract with the Customer within the “virtual factory” via the Platform and shall transmit an invoice for the remuneration agreed with the Customer under the Production Contract to fabnamix via the Platform.
12.2 As soon as all production work within a “virtual factory” has been completed, fabnamix creates a total invoice from the individual invoices of the Producers for the remuneration of all Producers plus fabnamix’s commission calculated on this basis and sends this to the Customer.
12.3 The total invoice amount is to be paid by the Customer to fabnamix within 10 days. fabnamix retains the commission shown and then distributes the individual remuneration items to the respective Producers.
12.4 Production contracts not concluded via the Platform shall not participate in the payment processing pursuant to clause 12.
Part III: General
13.1 The parties shall be liable without limitation in the event of intent, gross negligence and culpable injury to life, body or health.
13.2 Without prejudice to the cases of unlimited liability pursuant to clause 13.1 the parties shall be liable to each other in the event of a slightly negligent breach of duty only in the event of a breach of material contractual obligations, i.e. obligations the fulfilment of which is a prerequisite for the proper performance of the contract or the breach of which jeopardises the achievement of the purpose of the contract and on the fulfilment of which the other party may regularly rely, but limited to the damage typical for the contract and foreseeable at the time of the conclusion of the contract.
13.3 The above limitations of liability do not apply to liability under the German Product Liability Act (Produkthaftungsgesetz) or within the scope of guarantees assumed in writing by a party.
13.4 fabnamix is in no way liable from and for Production Contracts between Users.
- Defects of title; Indemnification
14.1 fabnamix guarantees that the Software does not infringe the rights of third parties. fabnamix shall indemnify the User against all claims of third parties on account of infringements of property rights for which fabnamix is responsible in connection with the contractual use of the Software upon first request and shall reimburse the costs of reasonable legal action. The User shall inform fabnamix without delay of any claims asserted against him by third parties on the basis of the contractual use of the Software and shall grant him all necessary powers of attorney and authority to defend the claims.
14.2 The User assures that the content and data stored on the servers of fabnamix, as well as its use and provision by fabnamix, do not violate applicable law, official orders, rights of third parties or agreements with third parties. The User shall indemnify fabnamix on first demand against claims asserted by third parties on the basis of a violation of this clause.
- Term and termination
15.1 The User Agreement is concluded for an indefinite period of time and can be terminated by fabnamix and the User with a notice period of 3 months to the end of a half year. An ordinary termination is in any case excluded until all open Production Contracts of the User have been concluded.
15.2 The right to terminate without notice for good cause remains unaffected. In any case, the termination must be in writing.
15.3 The User loses his access to the Platform with the termination of the User Agreement. Previously concluded Production Contracts remain unaffected by this.
15.4 fabnamix shall provide the User with reasonable support for the retransfer or backup of the data at the User’s expense after termination of the contract.
- Data protection
16.1 The parties shall comply with the applicable data protection provisions applicable to them in each case.
16.2 If and to the extent that fabnamix has access to personal data of the User in the context of the provision of services, the parties shall conclude a corresponding order processing agreement prior to the start of the processing. In this case, fabnamix will process the relevant personal data solely in accordance with the provisions set out therein and in accordance with the instructions of the User.
16.3 fabnamix is entitled to store all actions of the Users on the Platform and to use them for training purposes of the fabnamix AI in order to be able to achieve an improved User experience and support.
- Final provisions
17.1 The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods. If the User has his habitual residence in another country at the time of the conclusion of the contract, the application of mandatory legal provisions of this country shall remain unaffected by the choice of law made in sentence 1.
17.2 Amendments or supplements to these GTC must be made in writing. This also applies to an amendment of this written form clause.
17.3 The exclusive place of jurisdiction for all disputes arising from or in connection with this contract is Leipzig, Germany.
17.4 In case of different language versions of these GTC, the German version shall prevail in questions of interpretation.