Hosting platform or service of Modern Drive Technology GmbH; here data is stored, visualized and made available via interfaces.
VPN solution for establishing direct remote access to the machine gateway via a virtual private network (VPN).
Participant/endpoint of a VPN with end-to-end encryption. This can be, for example, a user's PC or a gateway. The remote station is always the VPN server, which can be configured by the customer using MACHINES.ACCESS.
Database, application, program, other application or content of Modern Drive Technology GmbH accessed via MACHINES.CLOUD.
On-board modules (e.g. TC1, TC3G, TCG-4) or other hardware from Modern Drive Technology GmbH or third parties that is authorized to connect to and/or send data to or receive data from the MACHINES.CLOUD servers.
Computer of a user, e.g. desktop PC, laptop, tablet, smartphone.
UI (User Interface), graphical user interface of MACHINES.CLOUD, delivered by Modern Drive Technology GmbH in the form of a web application and can be used by means of a web browser.
Provider of databases, services or other applications or content accessed by Customer through the MACHINES.CLOUD Platform or which accesses MACHINES.CLOUD.
Service or provider selected by the customer.
Party which is not named in this Agreement. This may be, for example, the customer of the customer to whom the customer grants access to MACHINES.CLOUD.
Application, application or software that is neither programmed, operated nor maintained by Modern Drive Technology GmbH.
Program code, data and content managed by the customer in MACHINES.CLOUD.
1.1
The subject matter of this agreement is the provision, against payment, of a defined storage space on a server for the storage of customer data (MACHINES.CLOUD). In addition, the customer has the option of establishing direct access to gateways via a VPN connection (MACHINES.ACCESS).
1.2
Access to the storage is granted through a MACHINES.CLOUD portal using only REST API technology via a user interface as a browser application.
1.3
If the customer is granted access to software for the use of the MACHINES.CLOUD, the customer is granted a temporary for the duration of this contract, non-exclusive, non-transferable right to use this software exclusively for the purpose of fulfilling this contract. Unauthorized copying, decompiling or editing of this software is not permitted.
1.4
In terms of content, the customer receives the right to install the software and to use it within the scope of the purpose of the contract, in particular the possibility,
1.4.1
Authorise VPN clients for remote access to machine gateways and manage them yourself,
1.4.2
the generation of necessary configuration files for the purpose of integrating and operating the VPN clients on different operating systems,
1.4.3
to perform data transmissions for the purpose of flashing connected controllers, for gateway software updates and for remote configuration of the gateway (any other transmissions are excluded).
1.5
Modern Drive Technology GmbH ensures that the stored data can be accessed via the Internet; the contents are not checked.
1.6
The customer is not entitled to transfer this storage space to a third party for use, in part or in full, against payment or free of charge, unless otherwise agreed in this contract.
1.7
The customer undertakes not to store any content on the storage space whose provision, publication or use violates applicable law or agreements with third parties. The storage of special categories of personal data within the meaning of Art. 9 DSGVO is not permitted.
1.8
Access to the MACHINES.CLOUD gateway (endpoint) is the responsibility of the customer. Any costs arising from the transmission of data shall be borne by the customer. The exact scope of the data transmission depends on the setting of the gateway. The management of this setting is carried out by the customer. Any forecasts on data transfer by Modern Drive Technology GmbH are made without guarantee.
1.9
Sent position data can be displayed as a location on a geo-map. The service of third parties is used for this purpose. The administration of this service is the responsibility of the customer. This may incur additional costs in the form of set-up and usage fees according to the customer's choice.
2.1
Access to the information stored on MACHINES.CLOUD is possible for the customer at any time. Modern Drive Technology GmbH guarantees an availability of at least 95% on an annual average. Excluded from this are announced maintenance work, updates and technical conversions, which may lead to temporary unavailability of MACHINES.CLOUD. An announcement of such work will be made to the customer approximately one (1) week before the planned work is carried out.
2.2
An administration access is set up for the client. The administration access allows the client to create any number of additional users.
2.3
The administration of this access is the sole responsibility of the customer.
3.1
Modern Drive Technology GmbH grants the retrievability of the data stored on the MACHINES.CLOUD.
3.2
Access to the MACHINES.CLOUD is via a customer-specific URL. For this purpose, Modern Drive Technology GmbH sets up individual access data for the customer, consisting of a user name and password for password-protected access. These data will be sent after conclusion of the contract.
3.3
Modern Drive Technology GmbH guarantees scalability of its service with regard to the transfer rate from the MACHINES.CLOUD data center to other servers and routers belonging to the Internet. An adjustment of the infrastructure takes place at least in 30-day intervals.
3.4
Modern Drive Technology GmbH is obliged to take suitable precautions against data loss and to prevent unauthorised access by third parties to the customer's data.
4.1
If the customer grants third parties access to the MACHINES.CLOUD, the customer is responsible for the third party's use of the MACHINES.CLOUD in accordance with the contract.
4.2
The customer is obliged to constantly maintain the gateway to access the MACHINES.CLOUD. The software used for this purpose must be kept up to date. Any access disruptions must be reported to Modern Drive Technology GmbH without delay.
4.3
The customer must keep his access data secret from unauthorized third parties. User names and passwords must be stored in such a way that access by unauthorized third parties is excluded in order to prevent misuse. The data stored in the MACHINES.CLOUD must be protected by the customer in a suitable manner against unauthorized access by third parties.
4.4
The customer shall ensure that only persons with the necessary expertise and instruction access the MACHINES.CLOUD.
4.5
Any performance tests of the contractual services are only permissible after prior agreement between the parties.
5.1
The installation of any software, troubleshooting and maintenance of the end devices used to access the MACHINES.CLOUD are the responsibility of the customer.
5.2
Modern Drive Technology GmbH provides no warranty and/or assumes no liability for the compatibility or interoperability of MACHINES.CLOUD with operating systems, add-ons, programs or other applications installed by the customer on its end devices or operated as part of an automatic update on the customer's own end devices.
6.1
The retention period of all data sent to MACHINES.CLOUD is determined by the customer through so-called "Retention Rules".
6.2
The data in applications that are not only read-accessed, e.g. master data, data entered by the customer or data sent by gateways are stored in the MACHINES.CLOUD and backed up cyclically. A backup is made daily, between 0:00h and 3:00h CET. The backup is stored for 15 days. A recovery of lost, accidentally deleted or not otherwise backed up data after this time is not possible by Modern Drive Technology GmbH.
6.3
The expenses for the recovery of data shall be borne by the customer.
7.1
The customer undertakes to pay Modern Drive Technology GmbH the fee stated in the invoice in euros including the statutory value-added tax by the target date stated in the invoice at the latest.
7.2
If the customer is in default of payment, Modern Drive Technology GmbH is entitled to demand interest on arrears in accordance with § 288 (2) BGB. The customer undertakes to reimburse Modern Drive Technology GmbH for all necessary costs of legal action.
7.3
7.4
Prices according to the price list shall apply for the minimum term of this Agreement, unless otherwise provided for in Clause 7.5 of this Agreement.
7.5
The basis for price adjustments is the index for producer prices of industrial products for Germany published by the Federal Statistical Office on the basis of 2010 = 100%. If there is a difference of at least 3% between the public index before the last price adjustment and that at a later point in time within the term of the contract, Modern Drive Technology GmbH shall be entitled to make a price adjustment in the same amount. The price adjustment shall take effect from the month following the change, but not more than once a year. In the event of price increases exceeding 5%, the customer has a special right of termination. In this case, the contractual relationship shall be terminated with a notice period of three (3) months.
7.6
Modern Drive Technology GmbH shall charge for any activities going beyond the services covered by the contract on a time and material basis according to the current price list.
8.1
If the customer is responsible for a delay in payment of more than 20 days on the calculated contract fee, Modern Drive Technology GmbH is entitled to block the access to MACHINES.CLOUD until the complete settlement of the asserted claim by setting a one-time grace period of ten (10) days.
8.2
If the customer fails to meet his payment obligations despite a reminder, Modern Drive Technology GmbH is entitled to terminate the contract without notice and to claim liquidated damages in the amount of the lost profit until the end of the contract period.
8.3
The Customer shall bear the costs incurred for reactivation of access to the MACHINES.CLOUD following a blocking in accordance with the applicable price list.
9.1
The statutory warranty provisions apply with the proviso that the customer comprehensively tests the object of performance immediately after granting access and checks all functions for proper functioning. Modern Drive Technology GmbH must be notified of recognisable defects within 14 days and of hidden defects within two (2) working days of their discovery, together with a description of the defect. The description must in particular show the extent and effect of the defect. If no notification of defects is made within the deadline, the services provided shall be deemed to be free of defects.
9.2
Modern Drive Technology GmbH does not guarantee the functionality of the communication and data lines to the MACHINES.CLOUD Datacenter in the event of power failures, failures of servers or access lines to servers accessed from the MACHINES.CLOUD Datacenter, or failures of facilities that are not under the direct control of Modern Drive Technology GmbH.
9.3
The Customer acknowledges that the contractual services are not suitable for security or safety-relevant applications where precise locations and representations on geomap material are necessary, for example for emergency services.
9.4
The customer shall not subject the contractual services to any performance or stress tests without the express consent of Modern Drive Technology GmbH.
9.5
Modern Drive Technology GmbH is entitled to immediately block the MACHINES.CLOUD if there is reasonable suspicion that the stored data is illegal and/or infringes the rights of third parties. A reasonable suspicion of illegality and/or infringement of rights exists in particular if courts, authorities and/or other third parties inform the provider thereof. Modern Drive Technology GmbH shall notify the customer of the block and the reason for it without delay. The block shall be lifted as soon as the suspicion is invalidated.
10.1
Modern Drive Technology GmbH will start analysing the fault within two (2) working days (Monday to Friday, excluding German public holidays at the registered office of Modern Drive Technology GmbH, company holidays and bridge days) after a fault has been reported on the system, provided the fault message is reported within the fault acceptance period specified below. The official time in Germany applies. If the fault message is received after these times, it is deemed to have been received on the next working day.
10.2
The following definitions apply:
11.1
Modern Drive Technology GmbH is liable for intent and gross negligence. Furthermore, Modern Drive Technology GmbH is liable for the negligent breach of obligations the fulfilment of which is essential for the proper performance of the contract, the breach of which jeopardises the achievement of the purpose of the contract and the observance of which the customer may regularly rely on. In the latter case, however, Modern Drive Technology GmbH is only liable for the foreseeable damage typical for the contract. Modern Drive Technology GmbH is not liable for the slightly negligent breach of obligations other than those mentioned in the above sentences.
11.2
The above exclusions of liability do not apply in the event of injury to life, limb or health. Liability under the Product Liability Act remains unaffected.
11.3
Modern Drive Technology GmbH accepts no liability for damage resulting from use contrary to the intended purpose or use contrary to these contractual provisions, e.g. by unauthorised persons or persons who have not been trained or do not have the necessary specialist knowledge in relation to the databases.
11.4
The gateway supplied by Modern Drive Technology GmbH represents an open platform, not a ready-made customer solution for a series rollout. As delivered, standard passwords are set for easy access for development and test purposes. Secure operation in the field must be ensured by the customer. In principle, the appendix "Basic Security Guidelines" must be observed. This document contains basic security-related rules. Security audits and/or penetration tests are not carried out in advance and must be arranged by the customer if necessary. The subject of an audit shall be the system in use at the customer. The customer has the option of updating all components of the software even during the operation of a productive version. All BSP versions supplied by Modern Drive Technology GmbH are to be tested extensively by the customer before productive use.
11.5
The MACHINES.CLOUD provides a return channel to the gateways located on machines. Updates of the software can be carried out and (machine) commands can be sent via this channel. The transfer and execution of software or commands can lead to functional errors or unexpected operating behavior of the machine. Before updates are installed or commands are executed, they must be adequately tested for functionality and safety. The customer must ensure that the machines are in a safe condition when making changes, updating the software of the gateway and any controllers or other devices connected to it. Modern Drive Technology GmbH assumes no liability for damage of any kind caused by changes to the software and/or commands sent.
11.6
Modern Drive Technology GmbH is not liable for any misuse of the access data that is not due to any misconduct on the part of Modern Drive Technology GmbH.
11.7
Modern Drive Technology GmbH does not accept liability for damage caused by third parties to whom the customer has given access to the platform.
11.8
If the customer uses the MACHINES.CLOUD for legally prohibited purposes or in contravention of the provisions of this contract, the customer shall indemnify Modern Drive Technology GmbH against all claims by third parties asserted on the basis of this infringement of rights or breach of contract. This indemnification also includes any reasonable costs of legal defense, fines or other contractual penalties.
12.1
The contractual performance of Modern Drive Technology GmbH is not a product in the sense of the applicable product liability law regulations, since a product in the sense of the applicable product liability law regulations is a movable object, including energy, that is foreign to the subject of performance, and this definition does not include the subject of performance of MACHINES.CLOUD.
12.2
If, however, contrary to this view, a court seised of the case should assume that the subject matter of the contract falls within the scope of the applicable provisions of the Product Liability Act, then it is expressly stated that liability for damage caused by an entrepreneur who predominantly uses the subject matter of the contract in his business does not arise and, moreover, only arises above the liability exemption limits.
12.3
It is to be assumed that the customer is to be regarded as an entrepreneur in the sense of the applicable product liability law regulations, since he operates a permanent organisation of independent economic activity, even if it is not profit-oriented, or is a corporation under public law.
Claims of any nature must be asserted within 12 months after the customer has become aware of the event giving rise to the claim, unless other limitation periods are set by law and inalienably.
14.1
The start of the contract is agreed between the parties. This becomes an integral part of the contract. In the absence of an express agreement on the commencement of the contract, the contractual relationship shall commence upon signature of this contract.
14.2
This contract is concluded for a period of two (2) years (minimum contract period) and shall be extended by a further year in each case unless one of the two contracting parties declares in text form at least three (3) months before expiry that it does not wish to extend the contract.
14.3
Ordinary termination of the contract by the customer is possible for the first time at the end of the minimum contract term.
15.1
Modern Drive Technology GmbH is entitled to terminate individual parts of the MACHINES.CLOUD applications or functions with a notice period of three (3) months to the end of the month. This may be necessary, for example, if service providers or service providers of Modern Drive Technology GmbH for their part terminate or change services in connection with MACHINES.CLOUD or if the service is discontinued entirely. In such a case, Modern Drive Technology GmbH is obligated to refund the customer the pro-rata fee, insofar as it was paid in advance, for the remaining contract term after the termination date.
15.2
Modern Drive Technology GmbH can only terminate this contract without notice for the following important reasons:
Upon termination of this Agreement, the Client shall be subject to the following obligations:
17.1
The customer and personal master data of the customer are stored digitally by Modern Drive Technology GmbH within electronic data processing systems, processed and handled in accordance with the applicable data protection regulations. The customer also receives, among other things, a newsletter from Modern Drive Technology GmbH. The customer is entitled to revoke the consent to receive the newsletter at any time.
17.2
The Customer is aware that data that it stores in the MACHINES.CLOUD or stores in the course of its use there may be personal data within the meaning of the currently applicable statutory guidelines that are subject to data protection or are data that are not intended for disclosure to third parties.
17.3
The customer is obligated to back up all data stored in the MACHINES.CLOUD on its own storage media prior to termination of the contractual relationship. After termination of the contract, Modern Drive Technology GmbH has the right to delete all data stored in the MACHINES.CLOUD or made available to the customer in the course of the business relationship. After this time, the customer has no claim to the return of any data, either in electronic or any other form. However, Modern Drive Technology GmbH is entitled, if required by law, in particular for reasons of data storage and long-term archiving, to store all data beyond the period of the contractual relationship for a period of up to ten (10) years.
Modern Drive Technology GmbH is entitled to transfer all rights and obligations under this contract to an affiliated company or any other company, provided that this does not impair the performance of the service and the transfer is reasonable for the customer.
If the Service or any part thereof becomes, or in Modern Drive Technology GmbH's opinion may become, the subject of a claim or proceeding for infringement of patent or copyright, Modern Drive Technology GmbH shall be entitled at its sole discretion and expense to
20.1
All amendments and additions to these provisions, including this point, must be made in text form.
20.2
Notices or declarations provided for in these provisions, or by law, must be in text form and must be received by the other Party within the time limits.
20.3
Modern Drive Technology GmbH may make changes to these provisions at any time, insofar as these become necessary as a result of changed circumstances (e.g. changes in legislation or case law or changes by third party suppliers that cannot be influenced by Modern Drive Technology GmbH) and are not unreasonable for the customer. Such changes will become effective 14 days after their publication at www.moderndrive.de and notification by e-mail if the customer does not object to the respective changes within this period. In the event of an objection, Modern Drive Technology GmbH reserves an extraordinary right of termination.
All annexes to these Conditions form an integral part unless these Conditions themselves expressly provide otherwise.
This contract conclusively regulates the legal relationships of the contractual partners with regard to MACHINES.CLOUD. This contract replaces all previous contracts. Verbal collateral agreements do not exist.
No waiver of rights may be inferred from any act or omission of a contracting party unless such waiver is expressly declared in writing.
24.1
This Agreement and all disputes arising out of or in connection with this Agreement shall be governed by the substantive laws of the Federal Republic of Germany (excluding the applicability of the conflict of laws rules and any international agreements and their implementing laws, e.g. CISG).
24.2
The customer shall be responsible for compliance with and/or fulfilment of any legal requirements or framework conditions in the customer's country, in particular for obtaining any permits.
25.1
The place of jurisdiction for all disputes arising from this contract is Kaufbeuren. German law shall apply (excluding the UN Convention on Contracts for the International Sale of Goods). Modern Drive Technology GmbH is entitled to assert its claims before any other competent court, in particular the court of the customer's registered office.
25.2
The place of performance is the registered office of Modern Drive Technology GmbH.
26.1
Should any provision of this contract be or become invalid, this shall not affect the validity of the remaining provisions. The parties shall immediately replace the invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision. The foregoing shall apply accordingly in the event of a loophole.
26.2
Modern Drive Technology GmbH is entitled to provide the services under this contract through third parties as subcontractors.
26.3
This Agreement shall be drawn up in two copies and signed by the authorised representatives of the Parties, one copy being given to each Party
The following Annexes form an integral part of the Agreement:
