General Terms and Conditions (GTC)

of meshmakers GmbH, FN 591192a

(hereinafter referred to as "meshmakers")

Status: July 2023

Unless otherwise individually agreed in writing, the following conditions (GTC) apply to all order acceptances and their processing.

Different conditions of the client only apply if they have been expressly accepted by meshmakers. They do not oblige meshmakers even if it has been expressly referred to in the written order and has not been objected to by meshmakers.

These GTC apply to target obligations, within the framework of which the meshmakers performs its main service, which consists primarily in the optimization of industrial processes through software solutions; for this purpose, services are first provided in the form of analysis and consulting, subsequently the solution developed by meshmakers is implemented in the operation of the customer.

These GTC remain unaffected by the general terms and conditions for the maintenance and service contracts (permanent obligations), which apply separately in addition to these GTC, if and to the extent that the customer has also entered into such a contractual relationship with meshmakers.

1. Completion of a contract

1.1. Contracts with meshmakers are concluded exclusively by written acceptance of an offer made in writing by meshmakers, by the customer. Changes to the offer by the customer are considered a counter-offer and only lead to the conclusion of a contract if meshmakers expressly agrees to the changes in writing.​

1.2. The transmission of advertising material and price lists is not considered an offer. Unless otherwise stated in the offer, written offers of the meshmakers have a validity of 30 days from the date of the offer.​

1.3. Contracts concluded by commercial agents and sales partners require the express written consent of the meshmakers in order to be effective.​

2. Prices

2.1. The prices quoted by meshmakers are net prices (plus applicable VAT) and are always quoted in EUR.​

2.2. Analysis and consulting services, installation services, development of software and other services are charged according to the actual effort, per 15 minutes started. Billing is carried out according to the hourly rates of the meshmakers applicable at the time the order is placed. In principle, the base price (=service fee) applies to the provision of the software in accordance with the currently applicable price list. These as well as the current hourly rates are available under info@meshmakers.io available.

2.3. Any legal transaction fees are to be paid by the customer.​

3. Payment and payment delay consequences

3.1. Unless otherwise agreed, invoices of the meshmakers are payable without deduction after the performance of the service within 14 days of invoicing (receed to the meshmakers' bank account). In the event of late payment, default interest of 12% p.a. will be charged. In this case, the customer must also bear all other costs arising from reminders, out-of-court collection, etc.​

3.2. meshmakers reserves the right to provide further services only against prepayment or to withdraw from the contract in the event of late payment and the deterioration of the customer's creditworthiness.​

3.3. The place of performance is the headquarters of the meshmakers in 5020 Salzburg, Austria.​

4. Advice / Delivery / Service

4.1. Unless a different written agreement has been made, the type of service provision is up to meshmakers. meshmakers is entitled to provide partial services.​

Software is generally made available via the cloud "Octo Mesh" whereby the customer is granted a right of use, for which a current usage fee (also called service fee) must be paid. The performance of the meshmakers includes the support, updates and maintenance of the software. The exchange of services takes place within the framework of the service level agreement (available at ...). The Service Level Agreement is an integral part of these GTC and is once again listed in full text after these GTC.

In individual cases and only on request, subject to the consent of meshmakers, the software can also be made available via download; the fee incurred for this and the extent of the transfer of rights to the customer are reserved for a separate agreement.

4.2. In the event of a delay in acceptance by the customer, the customer must pay the costs caused by the delay (additional administrative expenses, etc.). The costs of a second performance attempt are to be paid separately by the customer.​

5. Defects and warranty

5.1. The customer must check the service provided immediately upon delivery with the care required in accordance with § 377 UGB and complain in writing of any defects that can be detected in the event of other exclusion of any claims from any title (in particular also claims for damages) within 10 days. If the subject of the contract is an incorporeal thing, such as in particular software, delivery is the time at which the software has been implemented in the customer's system to the extent that the customer can use it without the intervention of the meshmakers.​

5.2. The warranty period is 12 months from delivery and any other claims for damages are also excluded after this period. meshmakers does not guarantee for damages caused by (i) manipulation by the customer or third parties, (ii) changes/additions by the customer, (iii) use of technical elements and software that has not been clarified with meshmakers, (iv) improper use, (v) excessive stress due to incorrect use, or (vi) lack of maintenance (if and to the extent that meshmakers has not also been commissioned with maintenance).

5.3. meshmakers assumes no liability for compliance with foreign, public law regulations, unless this has been expressly agreed. It is up to the customer to ensure compliance with all public law regulations. The customer declares to know all relevant regulations regarding the use of the product and undertakes to take all precautions to ensure that these regulations are complied with during installation and operation.

5.4. The rectification of defects takes place at the free choice of the meshmakers in their business premises or at the place where the service provided was implemented.

Special provisions for software: 

5.5. meshmakers guarantees that it is entitled to grant licenses to the software in accordance with the contractual provisions and that the contractual use by the customer does not violate any rights of third parties. Furthermore, meshmakers guarantees that the software has the specifications stated in the contract.​

5.6. The warranty for all data used in connection with the software, in particular for its completeness, timeliness or correctness of the presentation, is excluded.​

5.7. meshmakers does not guarantee that the software is completely error-free or can be operated without interruption. If defects are asserted within 12 months of handover, which significantly impairs the function of the software, meshmakers will replace the software or eliminate the defect, provided that:​

• The software has always been used properly and in accordance with the user instructions and other information such as accompanying letters, instructions for oral training, etc.;
• The alleged defect is reproducible in meshmakers;
• Follow-up of the operating system or Network operating system (or Operating system additions and databases) to the versions requested by meshmakers were carried out by the customer;
• No unauthorized changes have been made to the software (even if the lack of a not directly changed part of the software should occur, the warranty is excluded);
• Meshmakers is granted access to the customer's hardware and software during normal business hours;
• The hardware has been upgraded to the technical standards required by meshmakers (e.g. modem, processor, main memory (RAM), hard disk, etc. (for updated versions, these requirements may change).

5.8. The customer must report any defects immediately and in detail to meshmakers. If, as part of a fault analysis/diagnosis to be carried out by meshmakers, it turns out that the defect does not constitute a warranty case, the customer must pay all costs (billing according to time expenditure in accordance with point 2.2. of these GTC).

5.9. Performance disruptions (e.g. interruptions, service failure), which are rooted in the operation of the "Octo Mesh" platform, through which the software is made available, are primarily and finally regulated in terms of warranty law in accordance with the provisions of the service level agreement (service credit).

6. Liability

6.1. meshmakers is only liable in the event of proof of gross negligence, with the exception of personal injury. The liability of meshmakers is limited to the maximum amount of any liability insurance taken out. Due to the violation of contractual or pre-contractual obligations, in particular due to impossibility, delay, etc., meshmakers is only liable in the event of gross negligence or intent. Claims for damages must be asserted in court in the event of other expiration within six months of knowledge of the damage. The limitation of liability or exclusion also applies to claims against employees or vicarious agents of the meshmakers.​

6.2. The liability of the meshmakers in the event of a defect is, for whatever claims, limited to the amount of the fee for the part of the service provided affected by the defect. In particular, there is no liability for the reimbursement of expenses incurred by the customer in connection with the improvement or exchange of the service/goods by meshmakers, which also applies in particular to any necessary disassembly and reinstallation of physical components.​

6.3. Liability for the loss of data, loss of profits, (deficiency) consequential damages and indirect damages is excluded. In particular, there is no liability for production and operational shutdowns during the implementation of the services provided by meshmakers on/in the customer's systems. The customer acknowledges that the duration of this implementation work is not exactly predictable and can also depend on factors that meshmakers cannot influence.

7. Delivery/performance dates

The delivery/performance dates mentioned by meshmakers in order confirmations or other business documents are only considered expected delivery/performance dates (no fixed dates).

If, however, a fixed date is expressly agreed in writing between the parties, compliance with the delivery/performance date requires the timely receipt of all documents, approvals, release and compliance with the agreed payment conditions and other obligations (in particular system and assembly requirements to be provided by the customer) to be delivered by the customer. When changing or adding an order, meshmakers cannot meet any agreed fixed dates. In this case, a reasonable delivery/performance period is deemed to have been agreed. Should a timely delivery/service provision nevertheless not be possible due to special circumstances, a withdrawal from the contract on the part of the customer can only take place if a grace period of at least 6 weeks set by him in writing has passed without success. In the event of withdrawal, the customer is not entitled to any claim for damages against meshmakers.

8. License rights to software

8.1. meshmakers grants the customer the non-transferable, non-exclusive and personal right to use the software as follows. The customer is exclusively entitled to the intended use of the programs and the license codes as well as the user documentation belonging to it. The customer is not entitled to reproduce the software, grant sublicenses or to assign the rights of use - for whatever reason - to a third party. The customer undertakes not to pass on the passwords transmitted to him to third parties.​

8.2. The customer acknowledges that he has no rights to the software and the associated documentation other than those expressly agreed in writing. All other rights - in particular all exploitation and disposal rights - as well as the right of ownership of the software belong exclusively to the meshmakers or its possible licensor.​

8.3. If the customer changes his hardware, he must permanently delete the software on the storage of the previously used hardware and notify meshmakers in writing. The customer must keep all information concerning the software - not easily generally accessible - secret and may only use it in accordance with the contractual provisions and mandatory legal provisions.​

8.4. meshmakers provides the customer with the software in machine-readable form. The source code is not provided to the customer. The customer is also not entitled to edit, modify, decompress, disassemble, otherwise reverse engineer the software or determine the source code, unless this is permitted by mandatory legal provision; except for the provision of the software within the framework of the open source variant, which must be agreed separately and expressly.​

9. System requirements for the customer: 

The intended use of the software provided by meshmakers sets certain minimum requirements for the customer's system.

The necessary system requirements result from the documentation of the software, which is handed over to the customer after conclusion of the contract and before the first delivery of the software. This documentation is also available under https://docs.meshmakers.cloud available. The necessary system requirements must be provided by the customer at his expense, meshmakers do not make any performance obligations in this regard.

10. Value protection 

10.1. All prices specified in the contract for ongoing services (in particular costs for hosting) are subject to value protection and are adjusted annually, at the beginning of each year, in advance.​

10.2. The consumer price index 2020 serves as a measure for calculating value stability, as announced monthly by the Federal Institute "Statistics Austria" or a successor index in its place. The starting point is the index number for the month of conclusion of the contract. Increases or reductions are calculated on the basis of the index number for April of the previous year for the following year.​

10.3. The non-claim of value protection in no way means a waiver of value protection.​

11. Assembly and installation of the software

11.1. Unless a different written agreement has been made between the customer and meshmakers, assembly and installation services as well as any services in connection with the training of the customer's employees, which are provided by meshmakers on behalf of the customer, will be charged according to the actual effort of meshmakers according to time expenditure in accordance with point 3.2. of these GTC. Times of arrival and departure as well as any waiting times are considered working time and will be charged in full.​

11.2. All cash expenses such as accommodation and daily allowances of the assembly staff/installation technicians, auxiliary material, etc. will be charged to the customer additionally. Travel expenses will be charged in the amount of the official mileage allowance. The duration of the journey is considered working time and will be charged in full according to the hourly rates of the meshmakers in accordance with point 3.2. of these GTC.​

11.3. The assembly/installation date must be arranged in advance between meshmakers and the customer. At the agreed assembly/installation date, the customer must ensure that all necessary actions are taken and failures are avoided in order to ensure that the assembly/installation can be started on time and that the employees / vicarious agents of the meshmakers can work unhindered. In particular, the customer must ensure that the employees / vicarious agents of the meshmakers can work safely and that all occupational health and safety measures are complied with. If the safety of the employees / vicarious agents of the meshmakers is not guaranteed by the customer, the work will not be carried out until safe work is guaranteed by the customer. The costs of the resulting delay (waiting times, new arrival, etc.) are to be borne by the customer.​

11.4. During installation/commissioning, the customer must ensure that a sufficiently trained network administrator of the customer is present (at his expense) in order to be able to make the necessary network settings. Any necessary means of communication (Internet connection, fax, telephone) must be provided by the customer free of charge.​

12. Intellectual property rights of third parties

If third parties claim to the customer the infringement of property rights due to the use of the software in question, the customer is obliged to inform meshmakers immediately in writing. The customer is not entitled to give an acknowledgance or to conclude any other settlement on alleged infringements without the prior written consent of the meshmakers. The customer is obliged to defend against any claims asserted by a third party (if necessary also in court). meshmakers is entitled to join such a legal dispute. Each party has to bear its own procedural costs.

13. Force majeure

If meshmakers is made impossible or significantly more difficult for reasons over which it has no influence, such as the non-performance of its subcontractor, strike and lockout, the fulfillment of its contractual obligations, it may cancel the contract in whole or in part. In these as well as in all other cases, the client waives any legal claim arising from delay or non-e execution of the delivery/service.

14. Error 

A challenge to an order accepted by meshmakers due to error and due to shortening more than half is excluded.

15. Exclusion of set-off 

Against claims of the meshmakers, unless there is a current account relationship, the offsetting with counterclaims of the client is excluded without the express written consent of the meshmakers.

16. Copyright protection 

The design of products, names, trademarks, designations, designs, etc. that come from meshmakers are protected by copyright. The presentation of the products in catalogs and brochures, sent illustrations, drawings, sketches and other documents are the intellectual property of the meshmakers. All the aforementioned and other documents made available in business transactions may not be used otherwise or reproduced and made accessible to third parties without the express written consent of the meshmakers. They must be issued immediately at the request of the meshmakers.

17. Use of texts and images 

The duplicity, reproduction or publication of texts and/or images (also excerpts or excerpts) from the service program of the meshmakers require the prior written approval of meshmakers and are prohibited without this consent.

18. Contract duration / termination

18.1. The duration of the contract, as well as the duration of the right of use granted to a software, depend on the respective contract. In any case, the right to use the software ends with the termination of the contract. Upon termination of the contract, the meshmakers must return all data carriers provided. The software must be permanently deleted and no longer used. This also applies if the software has been linked or connected to other programs.​

18.2. If a contract between the customer and meshmakers has been concluded for an indefinite period, it can be terminated in writing by both meshmakers and the customer in compliance with a 4-month notice period as of 31.12 d.J.​

18.3. The right of meshmakers to immediately terminate the contract for good cause remains unaffected. An important reason in particular is:​

• A serious or repeated slight breach of contract by the customer;
• The opening of pre-, compensatory or bankruptcy proceedings over the customer's assets or the rejection of the opening of bankruptcy proceedings for lack of cost-covering assets;
• The non-payment of invoices of the meshmakers despite a reminder with a grace period of 14 days;
• (In the case of software) the termination of the software license from a supplier of meshmakers, provided that such termination relates to the software sublicensed to the customer of meshmakers.

19. Partial nullity

Should individual provisions of these GTC be or become invalid, the validity of the remaining provisions shall not be affected. In this case, the parties agree to replace an ineffective provision with an effective provision that comes closest to the economic intention of the parties.

20. Applicable law, place of jurisdiction, place of performance

20.1. Austrian law applies, the application of the UN Convention on Contracts for the International Sale of Goods is excluded.​

20.2. The place of performance of the contract is the registered office of meshmakers in 5020 Salzburg, Austria.​

20.3. The place of jurisdiction is exclusively the competent court in 5020 Salzburg, Austria.​

21. Delivery of declarations of intent, electronic invoice, decisiveness of the GTC in German version​

21.1. The customer must announce changes to his addresses and contact details (in particular postal and e-mail addresses) without delay. Declarations of intent of the meshmakers, which were addressed to the customer's no longer current addresses, are deemed to have been received by the customer if, at the time of sending the declaration of intent, the customer has not yet fulfilled his obligation to disclose the new address.​

21.2. Invoices are usually issued electronically by meshmakers. The customer agrees to the electronic invoice issuance within the meaning of § 11 Abs 2 UStG.​

21.3. In case of doubt, only the German version is decisive for translations of these GTC into other languages.​

Service-Level Agreement

Dear customer, dear customer!

We are pleased to present our innovative platform "Octo Mesh" to you. Octo Mesh allows you to seamlessly manage and monitor your IoT devices and applications, and offers numerous advantages over traditional software solutions.

Octo Mesh is a cloud-based platform that manages and deploys IoT devices and applications over the Internet. You can access the platform from anywhere and monitor and control your IoT devices without having to install additional hardware or software.

• Cost efficiency: Our SaaS solution does not require large investments in hardware or infrastructure. You only pay for the features and resources you actually use, resulting in cost savings.​
• Scalability: Octo Mesh is easily scalable and adapts to your growing IoT network. You can add or remove new devices at any time and expand the range of functions as needed.​
• Automatic updates: We ensure that Octo Mesh is always up to date by regularly providing automatic updates. You get access to the latest features and security patches, without manual intervention or additional costs.​
• Availability and mobility: Thanks to the cloud-based nature of Octo Mesh, you can access your IoT devices and applications from anywhere and on different devices. This enables better cooperation and more efficient operation.​
• Data security: We attach great importance to the security of your data. Oco Mesh implements strict security measures, including encryption, regular security checks, and backup solutions to protect your IoT data.​
• Maintenance and support: Ourteam takes responsibility for the maintenance and support of Octo Mesh, so you can focus on your core business. You will receive technical support and help from our experts if problems occur.​
• Adaptability and integration: Octo Mesh is adaptable and can be integrated into your existing systems and applications. This ensures seamless integration into your existing IT infrastructure and optimizes your IoT processes.​
• Short implementation time: The deployment of Octo Mesh is faster than with conventional software solutions, as no extensive installation or configuration is required. You can start managing your devices immediately.​

SERVICE OBLIGATION

Meshmakers GmbH (short meshmakers) provides the customer with access to the platform twenty-four hours a day, seven days a week (24x7) with a monthly operating time of at least 99.9% (see below). The "monthly operating time percentage" is calculated as follows: the number of minutes in which the services are accessible and are not affected by a service failure, as reported to the company by the customer during each calendar month, divided by the total number of minutes in the calendar month. If the customer does not report a service failure within five (5) days of the occurrence of such service failure, the customer is not entitled to a service credit for this service failure. For the purposes of this Agreement, "Service Failure" means any event that makes the Services unavailable to the Customer, with the exception of planned downtime or excluded downtime. A monthly operating time percentage of 99.9% means that we guarantee that no more than 43 minutes and 49.7 seconds of service failure will occur per month.

MEASUREMENT METHOD

To avoid intermittent and temporary fluctuations, a downtime after observation of one to five consecutive minutes can begin and end when services are restored. In addition, the downtime must affect a significant number of requests or core functions in order to be considered a service failure.

COMMUNICATION PROTOCOL

Meshmakers communicates by e-mail or text message, unless otherwise agreed in writing. The customer provides the company with contact names, e-mail addresses and telephone numbers for communication (the "communication protocol").

MAINTENANCE AND EXCLUSION OF DOWNTIME

Meshmakers reserves the right to regularly carry out regularly scheduled maintenance work on the platform outside core business hours. Business hours that are not part of the core business are defined as 0:00 to 4:00 a.m. (Central European Time) ("Planned downtime"). The company maintains a permanent scheduled maintenance window every weekday in the morning between 0:00 and 2:00 a.m. (Central European Time). The company can schedule additional planned downtime outside this time window by notifying the customer at least three working days in advance; this notification is made to the responsible support staff via the agreed communication protocol. In addition, downtime caused by factors beyond the company's control is not taken into account when calculating the monthly operating time percentage. This includes events of force majeure, the availability of Internet services outside the company's platform, downtime caused by the failure of third-party connections or utilities, as well as actions or omissions of the customer ("Excluded downtime").

SERVICE REQUESTS

To support the services covered by this SLA, the company responds to service-related incidents and requests made via the communication protocol within the following time frames. The customer must submit requests with the specified priority level; however, the company reserves the right to appropriately increase or decrease the priority level at its own discretion. In accordance with the service obligation contained in this SLA, the company makes all commercially reasonable efforts to resolve all requests promptly, but cannot guarantee time for resolution due to the inherent variability of effort and the corresponding time required to resolve problems. The company will inform the customer about the solution efforts in a timely manner and in accordance with the communication protocol.‍

SERVICE CREDIT

If the monthly operating time percentage does not meet the company's service obligation described above, the customer is entitled to a service credit as described in the table below. This service level agreement and the service credits granted under this agreement are the customer's sole and exclusive remedy in the event of a service failure in connection with the services. To receive a service credit, you must submit an application by e-mail to support@meshmakers.io. The request for credit must be received by us by the end of the second billing cycle after which the incident occurred, including: the words "SLA Credit Request" in the subject line; the dates and times of each incident of unavailability you complain about; logs documenting the errors and confirming the failure you claim (all confidential or sensitive information in these logs should be removed or replaced with asterisks).

Um eine Service-Gutschrift zu erhalten, müssen Sie einen Antrag per E-Mail an support@meshmakers.io einreichen. Der Antrag auf Gutschrift muss bis zum Ende des zweiten Abrechnungszyklus, nach dem der Vorfall eingetreten ist, bei uns eingehen und folgende Angaben enthalten

• The words "SLA Credit Request" in the subject line;
• The dates and times of the individual unavailability incidents claimed by you;
• Logs that document the errors and confirm the failure you claim (all confidential or sensitive information in these logs should be removed or replaced with asterisks).

If the monthly operating time percentage of such a request is confirmed by us and is below the service obligation, we will issue you the service credit within a billing cycle after the month in which your request was confirmed by us. If you do not provide the request and other information as requested above, you will be excluded from receiving a service credit.

Service credit:

• Are not refunds
• Cannot be exchanged for cash amounts
• Are limited to a limit of 30 days of paid service
• Assume that all outstanding invoices have been paid
• Expire upon termination of your customer contract