General terms and conditions of business and use of the exaas platform

Status: February 2021

A. General regulations

1               Scope

1.1           exaas GmbH, Zielstattstr. 19, 81379 Munich, Germany (hereinafter "exaas"), operates the internet platform www.exaas.de or app.exaas.io (the "Platform"). The Platform enables companies to find technology experts in various fields such as manufacturing technologies, production processes, product development, quality and material science and to contact them using the Platform. The details of the use of the Platform are defined by the following General Terms and Conditions (hereinafter "GTC") and the description of the functionalities and account details on the website of exaas.

1.2           These GTC govern the relationship between exaas as operator of the platform on the one hand and the companies and experts using the platform on the other. The subject of these GTC are only the services that exaas provides to the customers via the respective booked account. The agreement and implementation of paid web sessions is governed by corresponding additional terms and conditions.

1.3           General terms and conditions of the customer shall only become part of the contract instead of or in addition to these GTC if exaas expressly confirms this in writing to the customer within the scope of the conclusion of the contract. The customer is aware that the start of the service provision by exaas is under no circumstances to be understood as acceptance of the customer's general terms and conditions.

1.4           In addition to the General Provisions (A.) of these General Terms and Conditions, the Supplementary Terms and Conditions for Web Sessions for Entrepreneurs or the Supplementary Terms and Conditions for Web Sessions of Experts shall apply. If an Expert wishes to book a web session with another Expert, the supplementary terms and conditions for web sessions for companies shall apply to the Expert booking the web session. The Supplementary Terms and Conditions take precedence over the General Terms and Conditions insofar as they contradict them.

2               Terms

2.1           An "expert" is a person who registers as an independent company with exaas as an expert for a specific domain within industrial product development and manufacturing processes.

2.2           "Companies" are all legal entities that use the platform to search for and find experts for consulting projects and agree on corresponding projects with the expert.

2.3           The expert and the company are jointly referred to as the "customer".

2.4           "Web sessions" are web-based, fee-based consulting services for the clarification of specific issues, which an expert provides on behalf of exaas based on a corresponding booking made by a company with exaas.

3               Conclusion of contract for platform use and correction options

3.1           For experts, the contract is concluded by registering an exaas account via the website www.exaas.de or app.exaas.io. Part of the registration process is the entry of account and contact data, the selection of a subscription package including the entry of payment data (if required by the account type) and the creation of an expert profile. In the course of the creation of an expert profile, the entry of knowledge as well as CV data takes place. The registration process is completed if the profile released for publication by the expert is approved for publication by exaas after review. If the profile is not published after review by exaas, no contract is concluded and any payments already made will be refunded.

3.2           For companies, the contract is concluded by registering an exaas account via the website www.exaas.de or app.exaas.io. Part of the registration process is the specification of account & contact data, the selection of a subscription package including the entry of payment data (if required by the account type).

4               Contract language, contract text storage for online booking

4.1           The language available for the conclusion of the contract is German.

4.2           The contractual provisions with details of the booked services including a link to the GTC will be sent to the customer by e-mail with the booking confirmation. The GTC are stored on the website of exaas and can be accessed by the customer.

5               Contract term and termination / test phase

5.1           The license agreement for the booked account has a term of 12 months beginning with the booking of the account ("minimum contract term"). The Minimum Contractual Period shall be automatically extended by a further 12 months in each case, unless one party terminates the User Agreement by giving three months' notice to the end of the Minimum Contractual Period or the respective extension. The termination must be made in writing (text form is sufficient). It does not have to contain any reasons.

5.2           In the event that exaas and the customer agree on a trial phase ("Trial Phase"), the customer is entitled to use the platform to the full extent of the selected account for the duration of the agreed Trial Phase. Either party is entitled to terminate the Trail Phase in writing (text form is sufficient) by the last day of the term of the Trial Phase. If no notice of termination is given, the Trail Phase shall end upon the expiration of the agreed term and the minimum contract term pursuant to Section 5.1 shall commence.

5.3           The right of the parties to terminate the contract in writing for good cause shall remain unaffected. If the reason for termination consists of a breach of a contractual obligation, the terminating party shall, prior to termination, set a reasonable period of time for the other party to remedy the reason for termination. All circumstances that make further cooperation with the other party unreasonable, in particular also a cessation of business by exaas or repeated or persistent serious deficiencies in the performance of services, shall be deemed to be good cause for termination.

5.4           exaas will delete the data stored for the customer on the platform between 2 and 4 weeks after termination of the contractual relationship. The customer is therefore obligated to save the data stored for him by exaas and in particular the results of the consulting projects as well as the data and documents of the contractual partners of the consulting projects on his own systems upon termination of the contract in order to prevent data loss.

6               Subject of the contract

6.1           Depending on the account chosen by the customer, the user contract for the provision of the platform includes the use of various functions as described on the exaas website.

6.2           Through the platform, companies can access the registered experts, search for experts on specific topics and contact them through the platform.

In addition, companies can exchange information with the expert in a free initial meeting lasting a maximum of 15 minutes, provided that the experts have the appropriate account type and have defined available times in this regard. This initial meeting does not involve any consulting services on the part of the expert, but is intended to help companies get to know each other.

6.3            When booking the corresponding account, customers can also make use of the "expert search service". If no corresponding expert can be found for the searched topic on the platform, the customer can request exaas to search for a corresponding expert outside of the platform. exaas will try to find a corresponding expert and offer his expertise via the platform. exaas owes an effort in this respect; the promise of a successful search and addition to the expert network on the platform is not associated with the expert search service.

7               Remuneration for the provision of the platform

7.1           Depending on the account booked by the customer, a fee will be charged for the provision of the platform.

7.2           The prices determined on the website of exaas are net prices, to which the legally determined value added tax is added in each case. The remuneration for the provision of the platform shall be invoiced in advance at the beginning of a contractual year.

7.3           The fee is due upon conclusion of the usage agreement and is payable according to the means of payment chosen by the customer during registration.

7.4           exaas shall notify the customer of price changes in writing and expressly at least three (3) months before the end of the contractual year. In case of a price increase, the customer is entitled to object to the price increase within four (4) weeks after receipt of the notification. If the customer does not object, the new prices shall apply for the new contract year and subsequent years until any further price change. If the customer objects, exaas may terminate the contractual relationship with the customer with a notice period of six (6) weeks to the end of the contractual year.

8               Settlement and remuneration of the web sessions

8.1           If a company is interested in a particular expert, it is possible for the company to contact the expert directly via the chat function of the platform or the contact data stored there by the expert. Clarification of the contractual details of the consulting project and conclusion of the contract take place directly between the expert and the company.

8.2           The booking and execution of chargeable web sessions is governed by the supplementary terms and conditions for web sessions.

9               Duties of the customers

9.1           The customer is obliged to keep all data, which is made accessible to the users on the platform, always up to date.

9.2           The customer shall treat all information of other users that can be viewed on the platform as strictly confidential. This duty of confidentiality also includes the information which comes to the knowledge of the customer before the start of the project in the course of the initial meeting with the expert or company. If the company decides to use another expert after the initial meeting, the company will destroy or delete all information on experts not selected. The same applies to information from the company that is brought to the attention of the expert during the initial meeting.

9.3           The customer shall observe the applicable laws in any use of the platform.

9.4           The customer must keep the access data to the account (in particular login data) secret and may not disclose them to third parties.

9.5           An expert is obliged to answer a contact request of a company within a reasonable period of time in principle. However, there is no obligation to conclude a consulting contract.

10             Rights and duties of exaas

10.1         exaas is entitled to exclude registered customers from participation in the platform or to terminate the user contract if the customer violates essential obligations for the use of the platform, in particular these GTC, or applicable laws.

10.2         exaas endeavors to ensure that its services are always and as completely as possible available to companies on all end devices and takes all reasonable technical and personnel precautions to exclude overload or failure of the platform as far as possible. Therefore, exaas cannot guarantee 100% availability of the website. Likewise, exaas cannot guarantee that the website and the services will always be displayed without errors, especially when using unsuitable or outdated hardware and software (e.g. outdated browsers).

10.3         exaas is entitled at any time to block access to individual contents provided by the customer or to delete these contents as long as there is a reasonable suspicion of misuse of the platform or use contrary to the GTC. This also applies if there is a suspicion that these violate applicable law or the rights of third parties.

10.4         exaas is entitled to review and make editorial adjustments to the profiles posted by the customers. This check does not include any change in the content of the facts. Should this be necessary from exaas' point of view, exaas will contact the respective customer personally. Editorial adjustments include, among other things, the assignment of an industry, the expertise as well as orthographic and / or grammatical changes.

11             Rights of use

11.1         For the purpose of using the platform, exaas grants the customer and the employees designated by the customer to use the platform ("users") the simple, non-sublicensable, non-transferable right, which is revocable at any time, limited in time and content to the term of the usage agreement and in accordance with the following provisions, to access the platform by means of telecommunications and to use the functionalities provided by means of the platform by means of a browser in accordance with this agreement in return for payment of the agreed fee (in the case of a chargeable account). The customer shall not be granted any further rights, in particular to the platform.

11.2         The customer shall only use the platform for its internal purposes. He shall not be entitled to use the platform beyond the use permitted in accordance with this agreement or to have it used by third parties or to make the platform accessible to third parties. In particular, the customer may not rent, lend, sell, sublicense, transfer or assign the platform itself or the rights to the platform to third parties for use, nor copy the platform or authorize the copying of the platform either in part or in whole, except in the cases expressly permitted herein. Users are not considered third parties for the purposes of this provision.

11.3         The customer warrants to exaas that he is authorized to use and share the content (texts, photos, etc.) provided by him via the platform. The customer indemnifies exaas from all claims of third parties, in particular from claims due to copyright, competition, trademark, data protection and personal rights violations, which are raised against exaas in connection with the provision of content of the customer on the platform, upon first request. exaas is entitled to take appropriate measures itself to defend against claims of third parties or to pursue their rights. The indemnification also includes the reimbursement of reasonable costs incurred by exaas due to a legal prosecution/defense.

12             Performance fault

12.1         exaas does not assume any liability for the topicality or correctness of the contents posted by the customers on the platform.

12.2         In case of defects of the platform, exaas guarantees the contractual use by updating the platform as soon as exaas is able to do so. A reasonable possibility of circumventing the error with regard to the platform ("workaround") made available to the customer by exaas is also considered as establishing the contractual use, as far as an insignificant error remains under consideration of the workaround.

12.3         The platform is free of material defects if it essentially has the condition described on the website at the time of transfer of risk. "Guarantees" (esp. about the condition and/or durability) are not given by exaas with regard to the platform.   

12.4         exaas shall receive from the customer all information required for the elimination of software defects. The customer's claim for defect removal is excluded if the defect is not reproducible or can be shown by handwritten or machine-recorded output.

12.5         The customer's claims for defects shall become statute-barred twelve (12) months after the statutory commencement of the limitation period. This period shall not apply if longer periods are prescribed by law. Legally required notifications of defects by the customer must be made immediately in writing with a precise description of the problem.

12.6         The customer shall not have a right of retention if its claims for defects are time-barred.

12.7         Claims for defects by the customer shall not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of the usability or in the case of damage arising as a result of incorrect or negligent handling or in the course of the breach of obligations to cooperate.

12.8         If the notification of defects is unjustified, exaas is entitled to demand compensation from the customer for the expenses incurred. The support provided by exaas shall be remunerated by the customer at the prices agreed with exaas or, in the absence of an agreement, at the prices customary in the market.

12.9         With regard to the web sessions provided by exaas, exaas warrants that the contractually agreed services will be performed diligently and in accordance with the standards customary in the industry, taking into account the special knowledge and experience of the experts. exaas shall be liable for any breach of this obligation within the scope of the agreed limitation of liability. A warranty is excluded.

13             Liability

13.1         exaas shall be liable without limitation for damages caused by gross negligence or intentional acts of exaas, its legal representatives or vicarious agents. exaas shall also be liable without limitation for damages resulting from culpable injury to life, body or health.

13.2         Only in case of breach of essential contractual obligations, the breach of which endangers the purpose of the contract and the fulfillment of which the customer could particularly rely on (so-called cardinal obligations), exaas is also liable in cases of simple negligence. This liability is limited to the compensation of damages that were typically foreseeable at the time of the conclusion of the contract.

13.3         In addition, a) for the provision of the platform, the liability according to § 536a BGB (German Civil Code) and b) in cases where the customer uses the platform free of charge and no transaction fee is incurred or web sessions are provided free of charge, the liability of exaas for all cases of ordinary negligence is excluded.

13.4         Apart from the cases of unlimited liability according to clause 13.1, exaas' liability for indirect damages, in particular loss of profit, is excluded.

13.5         The above limitations of liability shall also apply to the benefit of exaas' legal representatives and employees as well as vicarious agents and shall also apply in the event of pre-contractual or tortious liability.

13.6         The liability of exaas for damages according to the product liability law remains unaffected.

14             Secrecy and data protection

14.1         The parties shall keep secret all information of the other party that comes to their knowledge in the context of the use of the platform and that requires secrecy, i.e. protect it with due diligence against disclosure to unauthorized persons. Authorized persons in the sense of this provision are the subcontractors used in accordance with the contract (including the IT infrastructure provider with whose help exaas provides the platform) as well as employees of exaas. The parties undertake to involve only those employees or third parties in the cooperation whom they have previously obligated to maintain secrecy in a comparable form.

In addition to the information exchanged directly between the parties via the use of the platform and the chat function, the obligation to maintain confidentiality also covers all other information requiring confidentiality that is disclosed between the parties in connection with the business relationship initiated via the platform, such as during web sessions.

14.2         All information of a party - irrespective of its form - which is marked as confidential or the confidentiality of which clearly results from its nature, in particular trade and business secrets, is subject to secrecy.

14.3         Non-classified information is information that the receiving party can demonstrate either (a) is or was in the public domain, (b) was already in the party's possession without an obligation of confidentiality, (c) was independently developed by another party without the use of classified information, or (d) lawfully acquired the information from a third party that was not under an obligation of confidentiality.

14.4         exaas shall comply with the customer's agreed requirements for data protection and data security. Both parties shall comply with the applicable data protection regulations, in particular those valid in Germany, and shall obligate their employees used in connection with the contract to maintain data secrecy, unless they are already generally obligated accordingly. As far as exaas processes personal data within the scope of the provision of services according to this agreement, exaas shall act exclusively on behalf and on instruction of the customer. The parties shall enter into a separate written agreement on commissioned processing.

14.5         The confidentiality obligations shall continue for five years beyond the end of the respective usage agreement.

15             Marketing

15.1         exaas is entitled to publicly use the companies and trademarks of the customers registered on the platform as a reference.

15.2         exaas would like to publish from time to time testimonials of the customers about completed consulting projects for marketing purposes on the website of exaas. For this purpose, the customers grant exaas free of charge the simple right, unlimited in time, space and content, to make testimonials provided to exaas publicly accessible, to reproduce, to distribute and to edit them for this purpose within the limits of the (copyright) personal rights. The company or the expert may revoke this granting of rights at any time in writing (text form is sufficient) vis-à-vis exaas.

15.3         exaas intends to highlight expert profiles for marketing purposes on the exaas website. For this purpose, the expert grants exaas free of charge the simple right, unlimited in time, space and content, to make his profile information (expertise) publicly accessible in a prominent place, to reproduce and distribute it and to edit it for this purpose within the limits of the (copyright) personal rights. The expert may revoke this granting of rights at any time in writing (text form is sufficient) vis-à-vis exaas.

16             Other

16.1         exaas reserves the right to change these GTC at any time. The customer will be informed in writing about the changes six weeks before they come into force. Within the scope of this information, the customer will be informed of the new GTC. He is entitled to object to the validity of the new GTC within four weeks after receipt of this notification. If the customer fails to object, the amended GTC shall become part of the contract after the expiration of the six-week period. exaas will expressly point out this period to the customer within the scope of the notification of change.

16.2         If the written form is required in accordance with these GTC, the text form shall be sufficient for compliance with these GTC, unless otherwise stipulated in the individual case.

16.3         The legal relationship between the customer and exaas shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.

16.4         The exclusive place of jurisdiction is Munich, provided that such an agreement between the parties is legally permissible.

 

B. Supplementary conditions for web sessions for companies

1 Scope

The Company intends to purchase web sessions from exaas. The service provider of the services provided via web session is an expert registered with exaas. However, the expert does not become a contractual partner of the company with regard to the web session; the contractual partner of the company is exaas alone.

2 Agreement and processing of a web session

2.1 The subject matter of a specific web session, such as the time of the web session and its temporal scope, always depends on the conditions agreed between exaas and the company ("offer"). There is no entitlement to a specific web session with a specific expert as long as no contract has been concluded in accordance with section 2.4.

2.2 For the purpose of agreeing on an offer for a specific web session, the Company     may contact the experts registered with exaas via the platform and request a specific web session from the expert based on the remuneration rates specified by the expert on the platform.

2.3 The expert acts as a representative of exaas in the context of agreeing on an offer with a company. The expert is entitled to agree on the remuneration to be paid by        the company for the web session on behalf of exaas.

2.4 A contract for a web session is concluded when the company has submitted an appointment request for a paid web session to the expert via the platform and this is confirmed by the expert. After the expert has confirmed the appointment, the company and the expert receive an invitation via the platform to the booked web session and a link for the video call.

2.5 After the execution of the web session, the Company shall confirm the execution via the corresponding function of the platform. The confirmation shall be made by the Company within 3 days after the end of the web session.

3 Excepted services

The parties are aware that web-based consulting via the platform is limited to pure consulting services due to the lack of visual inspection of the conditions at the company and the limited time scope of the web session and is also subject to certain restrictions in other respects.

The provision of web sessions via the platform is neither designed nor suitable for offering services that are subject to the Ordinance on Fees for Architectural and Engineering Services (HOAI). In this respect, the Company is prohibited from requesting and commissioning web sessions via the platform that include services in accordance with the HOAI.

Likewise, no success-oriented services, such as the preparation of expert opinions and other trades, as well as more in-depth consulting services may be commissioned and provided within the scope of a web session.

4 Services of exaas

4.1 Provision of the platform for initiating the conclusion of a contract for consulting services.

4.2 exaas shall provide the consulting services agreed upon in the offer.

4.3 The service shall be provided by an expert as a subcontractor of exaas.

4.4 The Contractor shall provide the Web Session with due care and diligence customary in the industry and in accordance with the principles of proper professional practice in the Expert's industry.

5 Special cooperation obligations of the company

5.1 The company shall create the conditions necessary for the provision of the services in its area of responsibility at its own expense and shall fulfill its obligations to cooperate in such a timely manner that exaas has a reasonable lead time for the performance of its services. Service-specific obligations to cooperate and services to be provided can be agreed upon in the offer.    

5.2 The company shall provide exaas with all information necessary for the provision of services. In addition, the company shall inform exaas           of any technical and organizational changes in its business operations that are relevant for the provision of the services in such a timely manner that exaas can adjust the provision of its services accordingly.

5.3 The company shall name in writing at least one contact person for exaas and an address and e-mail address at which the contact person can be reached. The contact person must be able to make the necessary decisions for the company or to bring them about immediately. The contact person ensures good cooperation with the contact person at exaas as well as the expert.

5.4 If the company violates its duty to cooperate, exaas shall set a reasonable deadline for the company to make good. The deadline can be set by the expert on behalf of exaas. Further rights of exaas remain unaffected.

6 Compensation

6.1 The amount of the remuneration for a web session results from the offer. Payments shall be made in euros.

6.2 Unless the services rendered are exempt from sales tax, the    remuneration shall be paid plus the statutory sales tax.

6.3 Unless a shorter period is agreed in the offer, payments shall be made within 15 calendar days after the due date. Payment is due at       the end of each month for the services rendered in the current month. exaas shall invoice the company for all web sessions booked and performed by the company in the month of billing in bundled form.

7 Intellectual property rights and copyrights

exaas grants the company a non-exclusive right of use, unlimited in time and space, to the results created for the company in the course of the web sessions (hereinafter referred to as "work results") for its internal company purposes. exaas grants this right to the company subject to full payment of the agreed remuneration. The company is entitled to transfer the right to companies affiliated with it at the time of the conclusion of the contract in the sense of §§ 15 ff. AktG (German Stock Corporation Act) at the time of the conclusion of the contract or to sublicense to them a simple right to use the results of the work.

8 Runtime and cancellation of web sessions

The start and duration of the respective web session are specified in the offer. Each party is entitled to cancel the agreed web session free of charge up to a maximum of 48 hours before the start of the web session by declaration to the other party. The cancellation must be communicated to the other party using the function provided for this purpose on the platform.