Ampeers Energy GmbH, Linprunstraße 16, 80335 Munich, Germany (“Ampeers Energy”) provides SaaS services for the client in the area of “process management of tenant power”.
§ 1 Subject of the Agreement
1.1 The subject matter of the contract is the provision of the software named in the order form (hereinafter referred to as “SOFTWARE”) by Ampeers Energy in the current version for use over the Internet (Software-as-a-Service, “SaaS”) and, if applicable, the granting of storage space on the servers of Ampeers Energy, as described in detail in the order only.
1.2 Ampeers Energy is permitted to use subcontractors to provide its own services.
1.3 The design of the front end is reserved to Ampeers Energy and is continuously optimized to improve the user experience. The presentation of the SOFTWARE is adapted by Ampeers Energy – and as far as possible from Ampeers Energy’s point of view – to the corporate design of the Customer. For this purpose, the customer will provide appropriate materials such as logo, standardized templates, etc., which will be further adapted, if necessary, upon consultation.
1.4 In addition, the Customer has the option to book further already existing or future developed services for a fee. The parties will agree separately on the scope of services and pricing.
1.5 The provision of services includes customer service for support in using the SOFTWARE. The scope and detailed conditions of the customer service are set out in Appendix 1.
1.6 In order to implement and optimize the agreed scope of services, Ampeers Energy and the Customer intend to further develop the SOFTWARE according to the requirements of the market and, if applicable, of the Customer, e.g. with regard to
-improvement suggestions of the customer regarding the applicability of the SOFTWARE
-Piloting of new components of the SOFTWARE by the customer
1.7 Realised projects may be used by the Parties for marketing purposes in their mutual interest. Information on the special pricing conditions of the cooperation is expressly excluded from this and must be treated confidentially between the parties.
§ 2 Rights of use
2.1 Ampeers Energy grants the Customer the non-exclusive, non-transferable right, which can only be sublicensed to service providers of the Customer, to use the SOFTWARE designated in this Agreement as intended via the Internet within the scope of SaaS services for the duration of the Agreement.
2.2 The client shall neither receive the object code or source code of the SOFTWARE, nor shall he/she be granted any rights to it.
2.3 The client is not entitled to make the SOFTWARE available for use by third parties, either for a fee or free of charge. Thus, the customer is expressly not permitted to sublet the SOFTWARE. This does not affect the provision in § 2.1.
2.4 All extensions, further developments, adaptations, additions or other modifications of the SOFTWARE, including the creation of new modules or plug-ins, as well as all other work results (collectively the “Work Results”) that have been created on the basis of this Agreement or in connection with or on the occasion of this Agreement, are the exclusive property of Ampeers Energy. This also applies to work results that are partly or entirely based on suggestions, cooperation, customer specifications, orders, know-how, business secrets or orders of the Customer. As a precautionary measure, the Customer grants Ampeers Energy, which accepts this, the exclusive, irrevocable, compensated, transferable, sublicensable, unlimited in terms of content, space and time, the right to copy, rework, distribute, publicly reproduce and otherwise exploit the work results, in each case including revisions, in all known and as yet unknown types of use, including SaaS, and waives any naming of names. Ampeers Energy also has the right to apply for patents or trademarks or other property rights. The Customer shall perform any acts of cooperation.
§ 3 Obligations of Ampeers Energy, scope of functions and warranty
3.1 In addition to the services referenced in Section 1.1, Ampeers Energy will also maintain the SOFTWARE.
3.2 The availability of the SOFTWARE is 98% as a monthly average based on the calendar month. The SOFTWARE is not available if it is not available. Maintenance work is not included in the calculation of the availability. Ampeers Energy shall perform maintenance work during periods of usually low usage and shall announce such maintenance work at least three days in advance by means of a notice in the SOFTWARE or by e-mail, unless the performance of such maintenance work at other times or an immediate performance without notice is not mandatory, for example for reasons of IT security.
3.3 Ampeers Energy shall remedy all defects of the SOFTWARE within a reasonable period of time, as far as technically possible. A defect shall only be deemed to exist if the functionalities of the SOFTWARE agreed upon in the order are significantly limited, so that the use of the SOFTWARE is impossible or significantly restricted.
§ 4 Obligations of the customer, provision of necessary information
4.1 The customer shall cooperate in adapting the SOFTWARE to customer-specific requirements and in commissioning the SOFTWARE.
4.2 The customer is solely responsible for the use of the SOFTWARE. The customer undertakes not to place any illegal content that violates laws, official requirements or the rights of third parties on the storage space that may be made available. The customer is obliged to prevent unauthorized access of third parties to the protected areas of the SOFTWARE by taking appropriate precautions. For this purpose, the customer will, if necessary, inform his employees about the compliance with IT security.
4.3 The customer is obliged to check his data and information for viruses or other harmful components before input and to use state-of-the-art virus protection programs for this purpose.
4.4 The customer will receive access data for accessing and using the SOFTWARE. The customer is obliged to keep the access data secret and not to make them accessible to third parties.
4.5 The customer will back up his data stored in the SOFTWARE at least weekly.
4.6 The customer shall immediately provide all necessary cooperation.
§ 5 Remuneration
5.1 An advance payment of 50% of the set-up fee (gross), according to the order form, is due upon conclusion of the contract. For this purpose, the customer will receive an invoice, which is to be paid by bank transfer within 14 days. Ampeers Energy will issue a further invoice for the remaining 50% due at that time, as soon as Ampeers Energy has declared the installation of the SOFTWARE as completed.
5.2 In addition to the fees according to Section 5.1, Ampeers Energy charges an annual flat rate (“Pay-per-use fee”) per integrated meter (“Metering Point”).
The pay-per-use fee is based on the prices stated in the order form.
The parties feel bound by the price structure until 10,000 tenant electricity customers have been reached and furthermore agree to review the price structure and either continue it or renegotiate it favourably.
The customer pays a monthly installment based on a joint estimate by Ampeers Energy and the customer, which is determined before the regular start of operation of the SOFTWARE. A semi-annual review of the amount of the installment payments takes place. At the end of each calendar year, the actual use by Ampeers Energy of the SOFTWARE will be determined and a settlement against the monthly payments will be made.
5.4 The Customer shall raise objections to the billing of the services provided by Ampeers Energy in writing to Ampeers Energy within a period of eight weeks after receipt of the invoice. After expiration of the aforementioned period, the billing is considered approved by the Customer. Ampeers Energy shall specifically point out the importance of its conduct to the Customer when sending the invoice.
§ 6 Conclusion of Contract, Term, Termination
6.1 The contract begins on the date indicated on the order and is valid for an indefinite period of time.
6.2 The Agreement may be terminated by either party by giving three months’ notice to the end of a contractual year.
6.3 The right of termination without notice for good cause remains unaffected. In any case, termination without notice requires that the other party has been warned in writing and requested to eliminate the alleged reason for termination without notice within a reasonable period of time. Insignificant defects of the SOFTWARE and insignificant violations of the availability clause do not entitle the customer to terminate the contract.
6.4 A termination is only possible in writing by signed and postal letter.
§ 7 Liability
7.1 In the event that Ampeers Energy’s services are used by unauthorized third parties using the Customer’s access data, the Customer shall be liable for any resulting fees within the scope of civil law liability until receipt of the Customer’s order to change the access data or report the loss or theft, provided that the Customer is at fault for the access of the unauthorized third party.
7.2 Ampeers Energy shall be entitled to immediately block the SOFTWARE if there are reasonable grounds to suspect that its use is illegal and/or violates the rights of third parties. A justified suspicion of illegality and/or infringement of rights exists in particular if courts, authorities and/or other third parties notify Ampeers Energy of such use. Ampeers Energy shall immediately notify the Customer of the blocking and the reason for it. The block is to be lifted as soon as the suspicion is invalidated.
7.3 The strict liability for defects in the SOFTWARE already existing at the time of the conclusion of this agreement is excluded.
7.4 In the case of any damage caused by slight negligence, Ampeers Energy shall be liable only in the event of a breach of a contractual obligation, the fulfillment of which characterizes the contract and on which the Customer may rely, and limited to the damage typical and foreseeable for this type of contract, and furthermore – in the aggregate for all damage-causing events in one year – limited to half of the total fees for this year. Sentence 1 shall not apply either in the case of damages resulting from injury to life, body or health or in cases of mandatory liability, in particular liability under the Product Liability Act or fraudulent concealment of a defect.
7.5 Ampeers Energy shall not be liable for loss of profit, loss of production, interruption of operations, contractual claims of third parties, loss of use, financial expenses and consequential damages.
7.6 Ampeers Energy shall not be liable for the loss of data to the extent that the damage is due to the Customer’s failure to perform data backups in accordance with Section 4.5.
7.7 This Agreement does not create a corporate or commercial agency relationship between Ampeers Energy and the Customer.
§ 8 Data Protection
8.1 The customer is responsible for compliance with the DSGVO vis-à-vis his customers and contractual partners.
8.2 Should Ampeers Energy process personal data on behalf of the Customer, the parties shall enter into an agreement provided by Ampeers Energy for order processing in the sense of Art. 28 DSGVO.
8.3 The Parties are entitled to disclose the fact of their cooperation.
§ 9 Final Provisions
9.1 Amendments and supplements to this contract must be made in writing to be effective; the electronic form (§ 126a BGB) and the text form (§ 126b BGB) are excluded. This shall also apply to any amendment to this written form clause. Contrary to § 127 para. 2 BGB, telecommunication or correspondence is not sufficient to comply with the written form.
9.2 Should any provision of this contract be or become invalid, this shall not affect the validity of the remainder of the contract. The invalid provision shall be deemed replaced by a valid provision which comes closest to the economic purpose of the invalid provision. The same applies in the event of a contractual loophole.
9.3 Both parties undertake to fulfil their mutual obligations to the full satisfaction of the other party in accordance with the spirit and purpose of this contract. Should misunderstandings or errors occur, each party will do everything necessary to eliminate the difficulties that have arisen.
9.4 Unless otherwise provided for in this contract, all costs, including expenses and fees, incurred in connection with the preparation, negotiation, signing and execution of this contract and the legal transactions provided for therein, including all consultancy costs, shall be borne by that party itself.
9.5 The place of jurisdiction and performance is Munich. German law shall apply.
Appendix 1: Scope of support
Ampeers Energy offers the customer a telephone availability in the following form:
Monday – Friday 8:00 – 17:00
Within this availability a first level support is provided. Ampeers Energy will assist the customer within the scope of the support services with questions regarding the operation of the SOFTWARE. No support will be provided for customers of customers. The availability of the support depends on the current volume of requests and the available capacities.
Phone: 089 1241 7079
Further services that are not part of this contract will be invoiced at a flat rate of 100 EUR net per hour.