1. Scope of application

1.1. These General Terms and Conditions (GTC) apply to all business relationships between the customer and EneRies GmbH and EneRies Corporate GmbH (office@EneRies.com) (“EneRies”). The contractual basis is the version of the GTC valid at the time the contract is concluded.

1.2. Deviating or supplementary general terms and conditions of the customer shall not become part of the business relationship with the customer, even if EneRies is aware of them, unless EneRies has expressly agreed to them in writing.

2. Conclusion of contract

2.1. Unless otherwise indicated, the offers submitted by EneRies to the customer are binding. EneRies reserves the right to make technical and other formal changes within reasonable limits.

2.2. The basis for the conclusion of a contract is therefore only an offer from EneRies which is explicitly marked as binding and which sets out the scope of services and remuneration. EneRies is bound by this for 14 days.

2.3. The contract is concluded by written declaration of acceptance/order confirmation by the customer.

2.4. The customer declares that it is of legal age, has full legal capacity and may place binding orders in its own name or via an authorized representative of a company or organization or on behalf of another representative.

2.5. If EneRies wishes to use the customer's name for reference purposes, this requires the customer's separate consent.

3. scope of services

EneRies provides the following “Services”:

3.1. Software-as-a-Service solution

3.1.1. EneRies shall provide the customer with a cloud-based all-in-one energy management system (“Tool”) as a Software-as-a-Service solution at the agreed conditions for the duration of the contract. The Tool is used for data storage, monitoring, control and optimization of energy generation. EneRies shall also provide the customer with the corresponding storage space for this purpose. The customer confirms that it has familiarized itself with the scope, functionalities and performance of the tool. There are no assurances of specific functionalities beyond those explicitly stated in the contract.

The parties have the mutual understanding that the Tool is not a critical application. EneRies will therefore make commercially reasonable efforts to make the Tool available during normal operating hours. However, for technical reasons such as platform upgrades or due to dependencies on third-party infrastructure and services, temporary outages, longer interruptions and planned and unplanned maintenance work may occur. EneRies will inform the customer of this in good time - where possible - and announce the expected duration of the unavailability. EneRies therefore does not guarantee unlimited availability of the Tool, not even during the basic operating hours.

3.1.2. EneRies has the right and the customer hereby expressly authorizes EneRies to block the customer's access to services if the security of network operation, the maintenance of network integrity, in particular the avoidance of serious disruptions to the network, the software or stored data require this, the customer does not comply with the terms of payment or violates Section 4 and/or Section 6 of the GTC. These cases are also exceptions to network availability in accordance with Section 3.2.3 of the GTC. In such cases, EneRies will inform the customer as soon as possible. EneRies may, at its sole discretion, update and further develop the Tool through updates and upgrades.

3.1.3. In this case, EneRies shall inform the Customer of updated versions and corresponding instructions for use by electronic means and make these available accordingly.

3.1.4. These further developments shall be made available to the customer free of charge unless a separate agreement has been concluded on their use. The user has no claim to updates, upgrades or changes to the tool.

3.1.5. Additional services, e.g. the development of customer-specific solutions or individual adaptations, are explicitly not owed. This requires a separate agreement at EneRies' current hourly rates.

3.2. Technical support

3.2.1. The offer for the provision of SaaS solutions does not include technical support services or professional services beyond this without explicit agreement. If technical support services are requested and utilized, they will be agreed separately with the customer, invoiced and provided in accordance with the following sections 3.2.2 to 3.2.4. The applicable prices can be requested from EneRies. Migration, support, development and project services independent of technical services must be defined, offered and commissioned separately as Professional Services.

3.2.2. Technical support services are provided exclusively in accordance with and with reference to the services ordered. The specific scope of technical support services must be explicitly agreed in each individual case with a Service Level Agreement (SLA).

3.2.3. The following support services are available, which are provided by EneRies in accordance with an explicitly agreed SLA or, in the absence of such an SLA, in accordance with its own best efforts:

• Telephone support

• E-mail support

• Ticket system

• Remote support via remote desktop and VPN, where available

• Monthly system check

3.2.4. The consistent and targeted provision of IT Service Support by EneRies is only possible if the customer cooperates accordingly. These obligations to cooperate on the part of the customer include:

• Clear information on responsibilities, accountability and assigned contact persons.

• Designation of responsible roles for the EneRies services in use, for the entire IT infrastructure and for the peripheral systems

• Early notification by the customer to EneRies of upcoming internal changes or events that may have an impact on the service management.

• Adequate availability of the customer representative(s) and their specialists to resolve a service-related incident or request.

• Provision of the necessary remote support infrastructure (on the customer side).

• Documenting exceptional circumstances and error messages as precisely as possible (by written description, etc.) and transmitting them to EneRies

• Timely information to EneRies in the event of planned changes.

• Support for EneRies in analyzing and correcting potential problems.

• Payment of all support costs at the agreed interval.

3.3. Hardware components

3.3.1. If the customer authorizes EneRies to purchase third-party goods on behalf of and for the account of the customer, EneRies shall also supply the customer with selected hardware components (e.g. industrial PC + power supply unit, LTE router with data sim card). In this case, the contract is concluded exclusively between the third-party supplier and the customer. The customer must assert his claims directly against the third-party supplier.

4. Rights of use to the Tool

4.1. EneRies grants the customer the non-exclusive, non-transferable and non-sublicensable right to use the Tool to the extent necessary for the purposes provided for herein for the duration of the contract and on the basis of these GTC.

4.2. In particular, the customer is not entitled to reproduce, distribute, sell, lease or otherwise use, edit or transfer the tool and/or the underlying programming in whole or in part to third parties for use. In particular, it is also inadmissible to use the knowledge and know-how gained from the use of the tool in any other way and to use it for the development of a comparable solution yourself or through third parties.

4.3. The tool itself, i.e. its programming, texts, images, graphics, design, structure and the underlying source code may be subject to copyright protection and the protection of intellectual property. These elements may not be reproduced, distributed, made available, published or edited by the customer without express written consent.

5. Data security

5.1. When data is transmitted to EneRies, the customer shall make separate backup copies. The customer is therefore generally responsible for the back-up. The servers are only backed up regularly insofar as this is expressly included in the respective offer. In the event of data loss, the customer must send the relevant data to EneRies again free of charge. The customer must then carry out its own complete data backup before making any changes of its own or commissioned by EneRies. The customer can download its data from the EneRies platform, e.g. to create its own backup.

5.2. For the Building and Industry Solutions, EneRies also offers various additional service packages for the protection of databases. The frequency of backups and the duration of availability of the backup copies created by EneRies differ depending on the data package selected by the customer.

5.3. The service packages pursuant to Clause 5.2 supplement the security measures taken by the customer itself, in particular the customer's own backup copies (see Clause 5.1). EneRies does not assume any warranty for the backup of the data stored on its server and draws its customers' attention to the fact that the backup of the data takes place at different times and at different intervals depending on the type of data or the service package selected by the customer. A possible loss of data in individual cases can therefore not be ruled out. In exceptional cases, it is also possible that EneRies may not be able to back up or restore data for individual hours or days for technical reasons, e.g. due to maintenance work, system malfunctions or the need to replace parts of the server infrastructure. In any case, volatile data is not backed up, but is regularly deleted.

5.4. The customer shall receive a username and password for his account. He is obliged to treat this confidentially. In the event of suspicion, the customer must request a new password. If the customer becomes aware that the password is known to unauthorized third parties, the customer must inform EneRies immediately. If third parties use EneRies' services by misusing the customer's passwords, the customer shall be liable to EneRies for all costs of such services and damages in accordance with Section 8 of these GTC.

6. Data protection and confidentiality

6.1. EneRies processes the personal data of the customer and its employees in accordance with the relevant data protection regulations.

6.2. EneRies qualifies as a processor under data protection law when providing the Tool and processing the customer's data. The parties therefore conclude a processor agreement.

6.3. EneRies and the customer mutually undertake to maintain the confidentiality of all information and data that is not generally known, in particular business and trade secrets, personal data and other documents, communications and information that become accessible to them during the preparation and execution of the contract and to oblige the employees deployed to execute the contract to maintain data secrecy and confidentiality in accordance with the applicable laws, unless they are already generally obliged to act accordingly. This obligation shall remain in force without restriction even after termination of the contract.

6.4. The customer agrees to the naming of references, unless he actively prohibits this in writing to Eneries.

7. Warranty and liability

7.1. The tool is provided “as-is” as inspected and demonstrated. EneRies therefore assumes no warranty or guarantee that the Tool will be fully functional at all times, error-free and without interruptions or that it will have certain functions.

7.2. Any defects in EneRies' services must be reported by the customer in writing without delay, but at the latest within three (3) working days of the defect becoming apparent, together with a specific description of the nature of the defect.

7.3. EneRies shall be entitled to choose the means and legal remedy to remedy a defect notified in good time. If the customer has not notified EneRies of any defects within the complaint period, all claims under warranty, avoidance on the grounds of mistake or compensation for damages due to defects shall lapse. In any case, warranty claims shall expire no later than one year from the provision of the tool.

7.4. Any defects in the provision of services by EneRies must be proven by the customer. The presumption of § 924 ABGB is excluded.

7.5. Warranty claims are excluded if the Tool is not used as agreed.

7.6. EneRies shall only be liable - except in the event of personal injury, death or within the scope of the Product Liability Act - for damage caused by EneRies or its vicarious agents through gross negligence or intent. Liability for damage caused by slight negligence is excluded. The burden of proof that damage was caused intentionally or through gross negligence lies with the customer.

7.7. EneRies' liability for damages not typical of the contract, consequential damages, in particular loss of profit and loss of savings and pure financial losses, is excluded - except in the case of intent. Furthermore, EneRies shall not be liable for damage caused by technical faults beyond its control.

7.8. The customer's claims shall become time-barred within one year of becoming aware of the damage and the party causing the damage.

7.9. If the customer or a third party breaches the obligations set out in the GTC via services purchased by the customer from EneRies, the customer shall be liable to EneRies for all resulting direct and indirect damages. The customer then undertakes to indemnify EneRies against any third-party claims. The indemnification obligation also includes all legal costs such as court and legal fees.

8. Intellectual property

The customer may only use services, materials and documentation from EneRies to the extent specified in the contract. Unless the customer is expressly granted rights to them, EneRies is entitled to all rights.

9. Terms of payment

9.1. The customer must pay the contractually agreed usage fees.

9.2. The fees shall be invoiced to the customer in the cycle of the agreed minimum contract term. The invoice is due for payment by the due date stated on the invoice form. Payment is only possible by bank transfer to the specified bank account.

9.3. If any payment deadlines granted are exceeded, EneRies shall be entitled to charge default interest in the amount of 9.2 percentage points above the base interest rate. Furthermore, the customer undertakes to bear all costs and expenses associated with the collection of the claim (collection charges and other costs necessary for appropriate legal action).

9.4. If the customer is in default of payment despite a reasonable grace period of at least two (2) weeks, EneRies shall be entitled to block the customer's account.

9.5. Invoices will be sent to the customer by email as an attachment. If the customer requests delivery by post, EneRies is entitled to charge a reasonable processing fee. In the event of a retroactive change to the invoice through no fault of EneRies, the customer may be charged a reasonable processing fee.

9.6. The customer may only offset against claims of EneRies if its counterclaims have been legally established or recognized by EneRies.

9.7. All agreed fees are subject to an annual value adjustment by EneRies in accordance with the increase in the consumer price index (CPI) published by Statistics Austria.

10. taxes

10.1. The prices of all EneRies Services are exclusive of any applicable value added, sales or similar taxes.

10.2. The Customer is responsible for the payment of any applicable value added, sales and other taxes and duties. If EneRies is legally obliged to collect taxes or duties for which the Customer is responsible, EneRies shall invoice the Customer and the Customer shall be obliged to pay them, unless the Customer provides EneRies with a valid, written exemption certificate from the competent tax authority.

11. Contract duration and termination

11.1. Unless otherwise contractually agreed, contracts are concluded for an indefinite period.

11.2. If no fixed term or minimum term has been agreed or the terms of the contract otherwise entitle EneRies, a contract may be terminated by either party with 30 days' notice to the end of the month without stating reasons. Notice of termination can be given by letter, e-mail or via the secure online administration area.

11.3. EneRies is also entitled to terminate a contractual relationship for good cause without notice. Good cause exists in particular if

a) the customer is in arrears with the payment of the services despite a warning and the setting of a reasonable grace period of 14 days,

b) the customer violates Section 6 of the GTC or impairs the security of EneRies' infrastructure,

c) the customer breaches contractual provisions (including the Usage Guidelines), misuses services for illegal purposes, makes inadmissible content accessible or if EneRies is threatened with reputational damage,

d) a sub-processor is required for the provision of the Services and the Customer does not give its consent to this,

e) EneRies is legally, judicially or officially obliged to discontinue or significantly restrict the Services.

12. Deletion of data

12.1. EneRies will delete all personal or company-related data of the customer after termination of the contract.

13. transfer of rights

The transfer of contractual rights by the customer to another person requires the prior written consent of EneRies. Such a transfer must be made in writing. For the purposes of these GTC, a written declaration is deemed to be a letter sent by email or post.

14. Severability clause

Should one or more provisions of the GTC be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a valid provision that comes closest to the economic purpose of the invalid or unenforceable clause.

15. Applicable law and place of jurisdiction

15.1. These GTC shall be governed exclusively by the substantive law of the Republic of Austria to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The conflict of laws shall not apply.

15.2. The exclusive place of jurisdiction for all disputes arising from and in connection with these GTC shall be the court with local and subject-matter jurisdiction for 1010 Vienna.