General Terms and Conditions of Business and Use of BentoNet GmbH
(Status: September 2022)
PART A: Provisions of the General Terms and Conditions of Business and Use
1. Subject matter and scope of application
a) These General Terms and Conditions apply to contractual relationships between BentoNet GmbH, Flugstr. 15, 76532 Baden-Baden (hereinafter referred to as “BentoNet”) and its customers (hereinafter referred to as “Customer”) (BentoNet and Customer hereinafter together referred to as “Parties”) regarding services provided by BentoNet and can be accessed at any time at “https://www.bentonet.de/AGB”.
b) The offer of BentoNet is exclusively directed at entrepreneurs (§ 14 BGB) and legal entities under public law. BentoNet currently offers a connection of customers to the BentoNet platform, the use of BentoNet solution applications, use and data exchange with the BentoNet platform as well as the use of third-party developer applications on the BentoNet platform, hereinafter also referred to as “Services”. In addition to these General Terms and Conditions of Business and Use, “PART B: BentoNet Services” contains explanations of the Services categorised by
• Data Points
c) These terms and conditions apply exclusively. Terms and conditions of the Customer deviating from these terms and conditions are not recognised by BentoNet. This also applies if BentoNet does not expressly object to the inclusion of the customer’s terms and conditions.
d) Individual agreements made in individual cases between BentoNet and the customer shall in any case have priority over these General Terms and Conditions.
2. Conclusion of Contract, Term and Termination
a) Conclusion of contract
BentoNet shall send the customer a BentoNet offer. The services specified therein constitute a binding offer by BentoNet to the customer. The Customer accepts BentoNet’s offer by providing his name, email address and a postal address by signing the BentoNet offer next to the phrase “We gratefully accept the offer:” contained in the offer. The signature may be in writing or in digital form. The contract is concluded upon receipt by BentoNet of the BentoNet offer signed by the customer.
1. The duration of the contract shall commence after receiving a countersigned BentoNet offer by the Customer and at the end of the month following this, unless otherwise agreed.
2. The minimum duration of the contract is 36 months, unless a different term is agreed.
3. The duration of the contractual relationship shall be extended without notice from the end of the term for a further year in each case.
1. The contract can be terminated by ordinary notice only at the end of the term. The notice period is three months to the end of the term.
2. The right to terminate for good cause remains unaffected by the above provisions. Good cause for termination exists in particular, if:
i. insolvency proceedings are opened against the assets of one of the parties or the opening of insolvency proceedings is rejected for lack of assets;
ii. the client is in default with the payment of the fee for two consecutive dates or for a longer period with the payment for a total of more than two dates;
iii. in the case of breaches of duty arising from the respective contractual relationship, the customer continues the conduct objected to despite a warning or does not immediately remedy the consequences of a breach of duty which have already occurred.
iv. An important reason for termination does not exist in particular if the mobile radio connection is temporarily unavailable within the scope of connectivity or if structural or technical requirements are lacking at the customer’s premises.
In the case of ordinary termination, the contractual relationship shall end upon expiry of the notice period, in the case of extraordinary termination for good cause upon receipt of the notice of termination.
3. Upon termination, the customer’s access to the BentoNet platform and the customer’s connection to the mobile network shall be deactivated. Upon termination of the contractual relationship, BentoNet remains entitled to use the data transmitted by the customer in anonymised form. A tacit continuation of the contractual relationship through the use of the services offered by BentoNet after the end of the contract is excluded.
a) The customer is obliged to pay the agreed fees. Unless otherwise agreed, the fees are based on the BentoNet offer.
b) All prices do not include the applicable statutory value-added tax. If additional taxes are incurred for the agreed services, these must also be borne by the customer.
c) Services that are not contractually owed and which BentoNet makes available to the customer free of charge, BentoNet can discontinue or make their further provision dependent on the payment of a fee.
d) BentoNet is entitled to increase the agreed prices accordingly if fees for advance services from third parties (e.g. for connection fees or power supply) that BentoNet needs to provide or maintain the services agreed with the customer are increased, if additional costs for the performance or if price increases are to be implemented due to a law or official (e.g. Federal Network Agency) order.
e) BentoNet will inform the customer in text form at least one month and no more than two months before the intended effect of the fee increase and the rights to which the customer is entitled.
f) The customer is entitled to terminate the contract within three months from the date of receipt of the notification according to 3.4. If the customer makes use of this special right of termination, the contract will be terminated with effect from the time at which the price adjustment takes effect.
g) The customer is not entitled to the special right of termination if the adjustment is directly prescribed by Union law or national applicable law.
4. Billing, payment and default of payment, offsetting
BentoNet shall invoice the services provided by it by the end of the month in which the respective service is provided. Unless otherwise agreed, invoices issued by BentoNet are due for payment within 14 calendar days of receipt. BentoNet currently only offers payment by SEPA mandator.
b) Payment and default of payment
The Customer is in arrears with the expiry of 14 calendar days after receipt of the invoice. In this case BentoNet is entitled
1. to charge a default interest on unpaid amounts due at a rate of 9% above the respective base rate; and
2. if the Customer fails to make the payment within 14 days after receipt of a reminder, to suspend the provision of BentoNet’s services until all payment obligations of the Customer towards BentoNet have been fulfilled.
The Customer may only offset against claims of BentoNet with undisputed or legally established counterclaims.
d) On Bill
The customer is only entitled to set-off rights if his counterclaims are undisputed or have been legally established. The customer only has a right of retention due to counterclaims arising from this contractual relationship.
5. BentoNet Platform, Services
a) Platform Offer, Changes and Availability
1. BentoNet provides the Customer with access to the BentoNet platform as a multi-user environment. The BentoNet platform is constantly being further developed, also in the interest of the customer. The Customer has no right to the retention of individual platform functions or contents which are not indispensable for the use of the platform.
2. BentoNet is entitled to change a service at any time without affecting its functionality or security features. In the case of ongoing subscriptions, BentoNet may only reduce the functionality of a Service or discontinue a Service if:
i. there are legal requirements;
ii. the services are changed by BentoNet’s subcontractors;
iii. the relationship with a provider of software and/or services used by BentoNet that are essential to the provision of such service is terminated;
iv. customer acceptance is lacking; or
v. security risks exist.
BentoNet will provide at least 80 days’ notice of any material change in functionality or discontinuance of a service and the effective date.
The Customer may terminate the changed service 30 days prior to the effective date of the change. In the event of such termination or discontinuance of a Service, BentoNet will refund any prepaid amounts for the relevant service on a pro-rata basis for the remaining subscription term. BentoNet will not maintain any prior versions of a service.
3. Availability of the BentoNet platform without any interruption is therefore technically not feasible. Based on 30 days, BentoNet maintains an average of 97.5% availability of the platform. This applies unless another individual SLA (Service Level Agreement) has been agreed with the Customer. Further SLA conditions are subject to a fee.
b) Platform access
If the Customer does not already have access to the BentoNet platform, he will receive the access data for activating his customer account on the BentoNet platform after acceptance of the BentoNet offer. The Customer is obliged to truthfully provide all information required therein upon activation of the customer account and to immediately indicate any subsequent change by making the corresponding adjustment in his customer account on the BentoNet platform.
The Customer shall ensure that it can be reached via the e-mail address it has provided to BentoNet in its customer account and that it can receive messages from BentoNet there at any time.
The Customer is obliged to handle his login data to the BentoNet customer account with care and to prevent misuse of these login data. The Customer is not entitled to pass on his login data to third parties. If there are indications of misuse of the login data, the customer must inform BentoNet immediately by email to firstname.lastname@example.org. A third party is not the person named by the Customer as the person authorised to access and use the data (e.g. an employee of the customer). The Customer shall ensure that these person(s) authorised to use the service comply with the customer’s obligations under these General Terms and Conditions of Business and Use.
Upon termination of the contractual relationship, the Client’s authorisation to use the Client Account and all associated services shall end. This also applies to any software associated with the customer account (e.g. BentoNet apps or third-party apps). BentoNet will deactivate the customer account at the end of the contract and delete the data collected in the customer account.
c) Disruptions to the operation of the platform
1. BentoNet endeavours to offer a trouble-free operation of the BentoNet platform. In addition to the services provided by BentoNet, the platform operation is dependent on services over which BentoNet has no influence.
2. BentoNet may restrict access to the BentoNet platform in whole or in part for good cause. Such good cause shall be deemed to exist in particular if
i. mandatory maintenance work is required to maintain the performance of the BentoNet platform; BentoNet will take into account the capacity utilisation of the platform based on experience and notify the customer in advance of the corresponding maintenance periods
ii. BentoNet reasonably determines that there has been a material breach of customer’s obligations, a security incident or a threat to security for the BentoNet Platform in connection with customer’s access to or use of the BentoNet Platform
iii. a suspension or restriction is required by law, court order or a request by a governmental body.
3. BentoNet is furthermore entitled to throttle or terminate computer processes which, in BentoNet’s reasonable opinion, impair the performance of the BentoNet platform or processes or applications operated thereon.
4. The restriction of platform access by BentoNet shall be lifted as soon as the reason for it no longer exists.
5. The customer’s obligation to pay the agreed fees remains unaffected by the above provisions.
d) Further obligations of the Customer
1. The Customer is obliged to refrain from any activity which is likely to impair and/or excessively burden the operation of the BentoNet platform or the technical infrastructure behind it. The use of the BentoNet platform is only available to the customer to the extent stipulated in the contract. The Customer may not use any means to extend the use of the platform beyond the contractual scope of use.
2. If malfunctions occur in the operation of the BentoNet platform or individual functions, the Customer shall notify BentoNet without delay. The same applies if the Customer becomes aware that content published by third parties on the BentoNet platform obviously violates applicable law or the rights of third parties.
3. The Customer shall provide information or other materials in connection with its access to the BentoNet platform which BentoNet reasonably requests in order to verify the customer’s compliance with its obligations under the contract. If the Customer can reasonably remedy a cause for the restriction of Platform access, BentoNet will notify the Customer of the actions the Customer must take to do so.
4. The Customer acknowledges and agrees that BentoNet’s services may not be used to operate a high risk system or within a high risk system if the functioning of the high risk system depends on the proper functioning of BentoNet’s services.
High-risk system means a device or system that requires advanced safety features, such as failsafe or fault-tolerant features, to maintain a safe condition where it is reasonably foreseeable that failure of the device or system could result directly in death, personal injury or serious property damages.
5. Further, the Customer acknowledges and agrees that the outcome of the processing of data through the use of BentoNet’s services is beyond BentoNet’s control. The Customer is responsible for the use and interpretation of the result of such processing and for any reliance on such result.
e) Rights on Platform Content
All rights, titles and interests in and to the Platform and the Services, including any know-how and any parts and improvements thereto, and all intellectual property rights in or relating to the foregoing, shall remain entirely with BentoNet, its business partners and/or licensors. Unless otherwise agreed, the customer may be granted a simple, non-exclusive and non-transferable right of use for content made available on the BentoNet platform, which shall expire no later than the end of the contract. BentoNet, its licensor or third party licensors otherwise reserve all rights, in particular rights to programs, operating systems and integrated software, which are developed, made available or used in any way within the framework of the contractual relationship between BentoNet and the Customer.
6. Limitation of liability
a) BentoNet is liable in case of intent or gross negligence. In the case of slight negligence BentoNet is liable for injury to life, body or health.
b) BentoNet is only liable for slight negligence in the following cases
1. in case of breach of a material contractual obligation; a material contractual obligation is an obligation the performance of which is essential for the proper performance of the contract, the breach of which endangers the achievement of the object of the contract and the observance of which the customer regularly relies on and may rely on; and
2. limited in amount to the damages foreseeable at the time of the conclusion of the contract and typical for the contract.
c) This limitation of liability also applies in favour of BentoNet’s legal representatives or vicarious agents.
d) The aforementioned limitations of liability do not apply in cases of mandatory statutory liability and in the event of the assumption of a warranty.
The Customer shall indemnify BentoNet against claims of third parties in the event of a claim due to statutory violations or the violation of third party rights in connection with the use of the BentoNet platform, insofar as the violation or infringement is attributable to the Customer. The indemnification also includes the obligation to bear the costs that are or become necessary for BentoNet to defend itself against third party claims.
8. Data Protection
The use of the services of BentoNet makes the collection, processing and use of personal data unavoidable. BentoNet collects, uses and processes the personal data provided by the customer exclusively within the scope of any required consent of the customer. Any further processing and use of personal data will only take place to the extent that this is legally permissible.
The nature and extent of the use of data by BentoNet is set out in the data protection declaration, which is permanently available at www.bentonet.de/datenschutzerklaerung/.
BentoNet and the Customer mutually undertake to treat confidential information disclosed by the other or any of its affiliates as confidential, to use it only in connection with the contractual purpose or otherwise agreed framework and not to disclose such confidential information to anyone, except to those users, employees, affiliates, business partners and consultants and the respective employees of such affiliates, business partners and consultants who need to know such information in order to achieve the contractual purpose and who are bound by appropriate confidentiality obligations or as otherwise agreed.
10. Export and Acquisition Controls
The Customer shall ensure that it does not export, re-export or otherwise transfer any products or services (including software or other digital products) purchased from BentoNet to any country, company, organization or entity to which such export is restricted or prohibited by law. For example, economic sanctions and embargoes imposed by the European Union, the United Nations, the U.S. Department of State, the U.S. Department of the Treasury, the U.S. Department of Commerce, or other governmental authorities due to terrorism or money laundering offences prohibit the export or import of products to other countries, even for personal use, and/or the shipment of products (whether physically, by mail, or digitally via email or file exchange) to individuals, companies, organisations or entities.
By signing the BentoNet quote, the customer declares that it is not itself subject to any such restrictive measures or sanctions.
11. Force Majeure
a) Force Majeure means acts of war, sabotage, natural disasters, pandemics, power, internet or telecommunication failures not caused by the party obliged to perform, governmental restrictions (including the refusal or cancellation of export or other permits), and other unforeseeable and extraordinary events that are unavoidable, i.e. beyond the control of the party obliged to perform.
b) The Parties shall use their best efforts to minimise the effects of any Force Majeure Event.
c) The Parties mutually undertake to take all reasonable and appropriate auxiliary and countermeasures against the effects of a force majeure event.
d) If the effects of such an event materially impair the contractual relationship for a period of more than 90 days despite all relief and countermeasures taken, either party may terminate the contractual relationship concerned without notice.
e) If the services of BentoNet are not available for a continuous period of more than 5 days due to an event of force majeure, the contractual relationship shall be automatically extended by this period. The customer’s payment obligations for services already provided by BentoNet remain unaffected.
12. Reference Clause
The Customer allows BentoNet to list him as a reference customer and to refer to the joint business relationship. BentoNet GmbH is allowed to mention the name or the company of the Customer in a publicity-effective way.
The Customer also permits BentoNet free of charge to use the identification and trademark marks exclusively for reference purposes. The free permission includes all analogue and digital media.
13. Transferability of rights and obligations of the customer
The Customer is not entitled to assign or otherwise transfer rights and obligations arising from contractual relationships with BentoNet to third parties in whole or in part without the express consent of BentoNet.
14. Formal requirement, contractual language
a) Legally relevant declarations and notifications with regard to contractual relationships existing between BentoNet and the customer require text form (e.g. e-mail).
b) The authoritative text of these General Terms and Conditions of business and use is the German or English version. The contractual language is either German or English.
15. Final Clauses
a) Should any clause in these General Terms and Conditions of Business be or become invalid, the validity of the rest of the Terms and Conditions of Business shall remain unaffected. The invalid provision shall be replaced by a clause which comes as close as possible to the economic purpose pursued by the invalid clause. The same shall apply in the event of the existence of a loophole.
b) These General Terms and Conditions and all contractual relations between BentoNet and the Customer shall be governed exclusively by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
c) To the extent permitted by law, the place of jurisdiction for all disputes arising from the contractual relationship between BentoNet and the customer shall be Baden-Baden, Germany.
PART B: BentoNet services
a) The Customer shall acquire from BentoNet the devices (hardware) specified in the BentoNet offer. The respective offer is part of the contract.
b) For the hardware the end customer receives the documentation provided by BentoNet (operating instructions/user manual).
c) Unless otherwise agreed, assembly, installation, preparation for technical operation, instruction or maintenance are not part of the contract.
d) The Customer shall install and configure the hardware upon receipt. For this purpose, the customer shall ensure on its own responsibility that it has the system environment required for the use of the hardware.
e) The Customer is obliged to check the contractual hardware for proper function and completeness (also with regard to the documentation) immediately after delivery. The Customer must immediately notify BentoNet of any defects in writing or electronically (e.g. by e-mail) (obligation to examine and give notice of defects). Defects which only become apparent later must be reported by the Customer to BentoNet without delay when they become apparent. In the event of a breach of the duty to examine and give notice of defects, the delivery shall be deemed to have been approved with regard to the relevant defect.
The service connectivity comprises the supply of the customer with a SIM card and the hardware (BasisBox) to connect the customer to a mobile network of a mobile network operator. BentoNet is not the network operator of the mobile network and has no influence on the network operation and network coverage. Through the connectivity service, the Customer is given the option of automated information and data exchange between end devices via the BentoNet platform after installation of the hardware.
The data volume of the installed SIM card is based on the BentoNet offer. If the included data volume is exceeded, BentoNet reserves the right to pass on the resulting additional costs to the customer.
3. Data points
a) The customer’s data transmission between the customer’s system and the BentoNet platform is carried out via data points. The data points are offered by BentoNet in data point packages. The data point package available to the Customer each month shall depend on the respective BentoNet offer. The number of data points included therein is based on the prices quoted by BentoNet. If the Customer requires additional data points during the term of the contract, he can purchase these from BentoNet.
b) The retrieval frequency of the data points is determined between BentoNet and the Customer. The SIM card size installed by BentoNet in the associated hardware device is adapted to this.
BentoNet offers various applications (apps) that enable the digitalisation of the energy industry. They may be developed by BentoNet itself or by a third party. The Customer can acquire a licence for the apps made available via the BentoNet platform, i.e. the right to use the app for the duration of the contractual relationship against payment of a fee (licensing). The licensing ends with the end of the contractual relationship.
a) BentoNet apps and third-party apps
Apps licensed by BentoNet (“BentoNet Apps”) and apps licensed by third parties (“Third Party Apps”) are available in the BentoNet App Store.
For Third Party Apps, BentoNet allows Third Party Providers to market through the BentoNet App Store. Customers may purchase licences for these Third Party Apps from the BentoNet App Store. BentoNet is neither an agent of the third party provider nor a party to the contract or any other usage agreement between the Customer and the third party provider for contracts between customers and third party providers.
b) Consent to the Licence Agreement
Each App for which Customer purchases a licence from the BentoNet App Store is subject to an End User Licence Agreement, which sets out Customer’s rights to use the App. The use of the respective App is subject to the Customer’s prior acceptance of the End User Licence Agreement. BentoNet has no control over third-party apps and the terms of third-party licence agreements. The third party provider is solely responsible for the contents of its end user licence agreement and the Customer’s claims arising therefrom, in particular also for any warranty claims.
c) App maintenance and support service
BentoNet is only responsible for any maintenance and support services for BentoNet Apps. BentoNet is neither responsible nor liable for maintenance and support services for third-party apps.
d) App Packages
BentoNet may offer several Apps as a package (“App Package”). The offer of an App is only valid jointly for the purchase of the other Apps included in the App Package. If the Customer already has an app in the app package, he may acquire the app package by purchasing the other apps only on the terms of the app package if this is expressly offered.
e) Licensing terms of the BentoNet Apps
The right to use the BentoNet Apps is subject to the Customer’s prior acceptance of the End User Licence Agreement.
(1) Scope of License:
BentoNet grants to Customer a non-exclusive, non-transferable licence, limited in time to the term of the Agreement, to use the Licensed BentoNet App on Products owned or possessed by Customer. It applies as a standard end user licence agreement (EULA) to all content, materials or services accessible from or purchasable within the BentoNet Licensed App and to any upgrades provided by BentoNet that replace or supplement the original BentoNet Licensed App, unless Customer and BentoNet agree otherwise. The Customer may not distribute or make available the BentoNet App over a network. The Customer may not transfer, redistribute or otherwise sublicense the licensed BentoNet App.
(2) Consent to Use of Data:
The Customer agrees that BentoNet may collect and use technical data and related information – including, without limitation, technical information about endpoints, systems, application software and peripherals used by the Customer – that is collected periodically to facilitate the provision of software updates, product support and other services (if any) provided to the Customer in connection with the Licensed BentoNet App. BentoNet may use this information to improve its products or to provide services or technology to Customer, so long as it is in a form that does not reveal Customer’s identity.
(3) External Content:
The BentoNet App may provide access to BentoNet and/or third party services or websites (collectively and individually, “External Services”). The Customer agrees to use external services at the Customer’s sole risk. BentoNet assumes no responsibility for the content or accuracy of external third party services, does not review or evaluate such content, and is not liable for any external third party services. Data displayed in any licensed app or external service, including without limitation financial or location information, is for general informational purposes only and is not guaranteed by BentoNet. The Customer agrees not to use such external service data in a manner that is inconsistent with the terms of this EULA or infringes the intellectual property rights of BentoNet or any third party. The Customer agrees not to use the external services to infringe any person or entity or their rights. To the extent the Customer chooses to use External Services, the Customer is solely responsible for compliance with all applicable laws. BentoNet reserves the right to restrict or block access to External Services at any time upon suspicion of a violation of law or regulation, without notice or liability to Customer.
(4) No warranty:
BentoNet will use reasonable care in providing the licensed App and will use reasonable care with respect to the external services provided or made available through the licensed App. For external services, BentoNet makes no promises or representations and specifically does not warrant that:
– the use of the External Services will be uninterrupted or error-free;
– the external services will be free from loss, corruption, attack, viruses, tampering, hacking or other security related failures. BentoNet excludes any liability in this regard. The Customer is responsible for backing up the Customer’s system, including backing up data from any Licensed Apps stored on the Customer’s system.
(5) Additional terms and conditions for certain content purchased from third parties