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1.1 relayr is a corporate affiliate of Relayr, Inc. and authorized to customize, adapt or further develop software or other works or products of Relayr, Inc. (“Standard Product(s)”) for end customers (“Customization Service(s)”).
1.2 These Master Terms for Projects (hereinafter collectively the “Agreement”) shall apply to all Customization Services or other development or consultancy or similar works or services (“Service(s)”), which may include the development and/or delivery of software or other tangible or intangible service deliverables (“Deliverable(s)”) which relayr may provide to its business customers (“Customer(s)”).
1.3 The scope and specifications of the Services and Deliverables, if any, as well as the consideration to be paid therefore, will be agreed separately for each project (“Project”) in individual contracts (“Contract(s)”). This Agreement does not obligate either Party to offer or to confirm particular Contracts.
1.4 All provisions of this Agreement shall be incorporated into, and apply to, the Contracts which make reference to this Agreement.
relayr does not accept any terms and conditions which deviate from the Agreement, except if such terms and conditions have been expressly accepted by relayr. Such acceptance shall apply only on a case-by-case basis and not to future transactions.
2.1 relayr will provide to the Customer the Services and Deliverables expressly specified in the Contract (collectively “Scope of Service”). relayr may freely subcontract obligations under this Agreement.
2.2 If the Customer requests a change to the Scope of Service of a Contract, it shall submit a change request in written form. Upon receipt of Customer’s request, or if relayr wishes to propose a change to the Scope of Service, relayr will, if feasible, provide a quotation setting forth the change and how it will affect the scope, quality, timing and/or costs of Services and/or Deliverables “Change Proposal”). Any amendments shall become valid only when the Change Proposal is confirmed in written form and negotiations thereon will not relieve either Party from its obligation to continue to consummate the Contract.
2.3 Notwithstanding Sec. 2.2, relayr may amend the terms and conditions of each Contract, – including any terms of the Agreement incorporated therein and the agreed fee rates – by unilateral notice in written form with proactive effect, observing six months’ notice with effect on any date on which relayr could otherwise have terminated without cause (“Renewal Date”). If Customer, following receipt of relayr’s notice of amendment, fails to terminate with effect on such Renewal Date, the amendment shall become effective on such Renewal Date.
3.1 In consideration of the Services and Deliverables, the Customer shall pay to relayr the fees agreed in the Contract.
3.2 Any services or deliverables, expenses, or labor and travel time outside of the Scope of Service, including, without limitation any extra effort or expense of relayr caused by delayed or non-conforming contributions of the Customer or any other breach of obligations or responsibilities of the Customer to cooperate are to be compensated on a time and materials basis at the rates set forth in relayr’s general end customer price list as amended.
3.3 Customer shall not be entitled to set off any of its claims against claims of relayr, except where Customer’s claims are undisputed or have been confirmed by a final court judgment. The same shall also apply to any right of retention under civil or commercial law.
The foregoing exclusions shall not apply where claim and counterclaim are synallagmatically connected within the meaning of § 320 of the German Civil Code, i.e. each obligation must only be fulfilled in consideration of the other.
Irrespective of the foregoing, Customer may not make any deductions from recurrent service, rent or lease payments based on supposed non-conformities. This shall, however, not limit Customer’s claim for repayment of any amounts paid but not owed to relayr after such payment to relayr.
3.4 Fees will be invoiced according to the payment schedule agreed in the Contract.
Where relayr invoices supplies or services retroactively, relayr may demand reasonable down payments.
All invoices shall be paid upon receipt without any deduction, unless otherwise agreed.
Customer will be deemed in default with a payment at the latest after expiry of two weeks from (i) the due date and (ii) receipt of ABC’s invoice.
3.5 Where Customer defaults on a payment or where the amount or due date of a payment is disputed, relayr may withhold the Services under the respective Contract if the amount which is overdue or in dispute exceeds 5% of the total compensation for the Project and the Customer fails to secure the payment of such amount through a bank guarantee.
Alternatively relayr shall have the option to terminate the Contract for cause in accordance with Sec. 9.3 if Customer fails to pay and/or provide a bank guarantee after relayr has set a grace period of not less than two weeks threatening to terminate after expiry of such period.
The foregoing provisions shall also apply to the extent that relayr is entitled to additional compensation under the preceding Sec. 3.2.
The foregoing not limit application of § 643 of the German Civil Code (BGB).
4.1 Title in tangible Deliverables shall pass to Customer only upon full payment of the compensation therefore.
4.2 relayr shall remain the owner of any intellectual property and commercial protection rights with respect to the Services, Deliverables, any user manuals or other product documentation therefore (“Documentation”); and/or any other documents or information provided or disclosed to Customer in connection therewith (collectively the “relayr Assets”).
Customer shall refrain from using any relayr Assets except to the extent required for their intended purposes.
4.3 relayr Assets consisting of software are licensed, not sold; Customer shall use such software only for its intended purposes and refrain from reverse engineering; modifying, adapting, translating, copying, or distributing such software except with relayr’s prior consent or as expressly allowed by mandatory statutory law. Source code will only be made available where expressly agreed in the Contract.
4.4 All right and title worldwide in or to any modifications, alterations or derivate works of any Standard Products discovered, developed or created by either Party in connection with this Agreement shall exclusively be owned by Relayr, Inc..
4.5 All right and title worldwide in or to any modifications, alterations or derivate works of any other relayr Assets discovered, developed or created by either Party in connection with this Agreement shall exclusively be owned by relayr.
4.6 Customer hereby transfers the right and title according to the preceding Sections to Relayr, Inc. and relayr who accepts such transfer also in the name of Relayr, Inc..
For the avoidance of doubt, such right or title shall not extend to any improvements independently developed by Customer to the extent that such improvements are separable, i.e. can be exploited without infringing upon rights in the Standard Product and/or relayr Asset.
4.7 The Customer’s right to use derivate works of any Standard Product shall be limited to the rights granted under the license terms for the respective Standard Product. Where Customer is using the Standard Product without having received a copy (SaaS – Software as a Service), it shall not receive a copy of the derivative work. Instead, relayr will provide this to Relayr, Inc. for the purpose of making it accessible to the Customer under the terms of the agreement governing use of the Standard Product.
5.1 Place of fulfillment for all Services shall be ### (“Place of Fulfillment”).
5.2 Deliverables will be delivered EXW Place of Fulfillment, Incoterms 2010.
6.1 The Customer shall provide, at its own cost and risk, to relayr any materials, infrastructure, Customer personnel and/or information reasonably required for the Services.
6.2 Unless expressly otherwise agreed in the Contract, the Customer shall in particular be obligated to provide all business requirements, interface information, test data and test cases and to participate in acceptance tests and other tests.
7.1 relayr shall provide all Services with due diligence through qualified personnel.
7.2 If in the context of the Services, relayr drafts or proposes a concept, requirement or specification for a Deliverable (“Detailed Spec”) and this is confirmed by the Customer, relayr’s contractual obligations with respect to such Deliverable shall from such confirmation be limited to conformity with the Detailed Spec.
7.3 Any Deliverables which require acceptance under the Contract (“Works”), shall be accepted by the Customer, provided the Deliverable essentially complies with the specifications agreed between the parties. The Customer shall confirm the acceptance in writing.
Defects or non-conformities without significant negative effects on the functionality and/or use of the Work or for which an adequate work-around is available shall not prevent acceptance and shall be remedied within the scope of Sec. 7.5 after acceptance.
Prior to delivery of the acceptance certificate to relayr, the Customer shall refrain from using the Work. In the event that the Customer uses the Work prior to delivery of the acceptance certificate to relayr, such use shall be regarded as acceptance.
relayr is entitled to submit individual self-contained components or phases of Works for separate, independent acceptance (acceptance in part). The complete Work will then be deemed accepted after the last acceptance in part has taken place. In that case, no additional final acceptance for the complete Deliverable is required.
7.4 The Customer shall inspect all Deliverables which are not Works and notify relayr of any non-conformity of a Deliverable which can be detected upon proper inspection promptly after receipt thereof in written form (“Non-Conformity Notice”).
Such Deliverables shall not require any formal acceptance, and shall, in any event, be deemed accepted (and the Customer shall be deemed to have waived any remedies in respect of the non-conformities) if the Customer has failed to issue a Non-Conformity Notice within 14 days of receipt of the Deliverable.
7.5 Where a non-conformity materially affects the fitness of the Deliverable for the agreed purpose, relayr shall promptly after receipt of a Non-Conformity Notice, at its option either repair or replace such Deliverable. relayr will bear any cost associated with the repair or replacement of Deliverables under warranty.
Where two attempts to repair or replace the Deliverable have failed to remedy the non-conformity within a reasonable grace period, the Customer may refuse to accept the Deliverable and claim repayment of the respective compensation and/or damages in accordance with Sec. 8.
7.6 Any remedies in warranty shall become time-barred, at the latest upon expiry of a limitation period of 12 months from the date of original delivery (or, with respect to Works, acceptance).
In the event that a Deliverable is repaired or replaced to remedy a non-conformity, the limitation period with respect to such non-conformity shall expire three (3) months after such repair or upon expiry of the original limitation period, whichever occurs later, and the limitation period for the Deliverable shall not otherwise be extended.
7.7 Not limiting claims in damages in accordance with Sec. 8, the remedies agreed in this Sec. 7 are exclusive and any further statutory or implied warranties or remedies of similar effect are expressly waived and excluded.
8.1 relayr shall be liable in damages in connection with a breach of any Contract, or otherwise of this Agreement, including any non-conformity of Deliverables, Services or relayr Assets, whether based on contract, tort or any other legal theory, whether for damage to property, persons, financial or any other loss, only (i) if and to the extent that relayr cannot establish that such breach was not due to negligence imputable to relayr and (ii) within the following limits:
8.1.1 relayr shall be liable without limits in accordance with applicable law with respect to (a) gross negligence or willful misconduct imputable to relayr, (b) death of a natural person or personal injury to the latter caused by slight negligence imputable to relayr, (c) mandatory statutory product liability, and/or (d) liability arising from a guarantee of properties.
8.1.2 relayr shall be liable even in the event of slight negligence for breach of a fundamental duty under the Agreement, provided that such liability shall exclude such damage as relayr could not have reasonably foreseen at the time of concluding the agreement.
A “fundamental duty” as used herein comprises any duty which must be fulfilled by relayr in order to enable consummation of the Agreement and the achievement of its purposes and fulfillment of which Customer may reasonably expect in view of the content and purposes of the Agreement such as the duty to consummate this Agreement in a timely manner and a manner which does not endanger the life or health or personal property of Customer and its personnel.
8.1.3 Except for liability under Sec. 8.1.1, relayr shall not in any event be liable (or in any way legally responsible) for third party claims, lost profits, loss of business, loss of reputation or good will, and/or any other indirect or consequential damages.
8.1.4 Except for liability under Sec. 8.1.1, and/or liability excluded under Sec. 8.1.3, relayr’ aggregate liability for all breaches of this Agreement shall be capped with respect to each System at an amount equivalent to 100% of the aggregate net fees payable for Services under the Contract.
8.2 This Sec. 8 shall not be construed to shift the statutory burden of proof in any way.
8.3 Limitations of liability agreed in this Agreement shall apply also to the personal liability of relayr’ officers and employees.
8.4 relayr’ liability in damages in connection with this Agreement, except for liability under Sec. 8.1.1, shall be subject to a limitation period of 12 months from accrual of the claim, irrespective of knowledge of underlying facts.
9.1 Hosting or support Contracts and other Contracts providing for recurrent services shall be deemed made for the term set out in such Contract. Unless otherwise agreed, either party shall be entitled to give notice of termination of such Contracts observing a notice period of three months effective on the second or any later anniversary of the signing of the Contract. Either party’s right to terminate the Contract for cause shall remain unaffected.
9.2 Unless expressly otherwise agreed in such Contract, any Contract outside of the scope of Sec. 9.1 cannot be terminated except for cause. § 649 of the German Civil Code (BGB) shall not apply.
9.3 Both Parties reserve the right to give notice of termination for cause of any Contract, even without observing a notice period. Cause for such termination without observing a notice period shall include, without limitation, any material violation of the contractual obligations of the respective other Party, an application for the institution of insolvency proceedings for the estate of the respective other Party provided that such application is not rejected within one month (except for lack of assets), and/or a breach of confidentiality.
Each Party shall keep all reasonably confidential information with respect to the respective other Party which it obtains in connection with this Agreement strictly confidential and shall refrain from using any such confidential information except as strictly required to perform this Agreement and/or respective Contract. Each Party shall ensure that its officers, employees, consultants and subcontractors are, and remain, bound by a secrecy obligation corresponding to, or exceeding, the standards set by this clause. This confidentiality clause shall remain in force even after termination of this Agreement for as long as the respective information is of reasonably confidential nature.
11.1 This Agreement and each Contract shall be governed by, and construed in accordance with, the laws of the Federal Republic of Germany without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
11.2 All disputes arising under or in connection with this Agreement and each Contract shall be submitted exclusively to the courts having jurisdiction at the seat of relayr.
12.1 All notices and other communications in connection with this Agreement and each Contract shall be valid only if made in written form. Not limiting stricter statutory requirements, any amendment, supplement, termination or waiver of any provisions of this Agreement or a Contract, including this provision requiring written form, shall be valid only if made in written form. Communication by fax or e-mail shall be considered sufficient for compliance with any requirement of written form in connection with this Agreement and each Contract.
12.2 Except as expressly permitted herein, neither Party may assign or transfer this Agreement, or a Contract, or any of the rights or obligations created thereunder, except for payment claims, without the prior written consent of the other Party, which consent shall not be withheld except for cause.
12.3 Should one or more of the provisions of this Agreement or a Contract be or become invalid or unenforceable, the validity and enforceability of the other provisions thereof shall not be affected. The invalid or unenforceable provision shall be replaced by a provision that is valid and enforceable and corresponds most closely to the economic intent of the Parties as evidenced by the original provision. The same shall apply in the event that the Parties should have inadvertently failed to agree on provisions necessary for consummation of this Agreement.
12.4 If in this Agreement or a Contract there is a discrepancy between the German and English language version, the German language version shall prevail.
Berlin, March 2016