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General Terms and Conditions

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I. General Terms and Conditions

§ 1 Scope

  1. These General Terms and Conditions (GTC) apply to all contracts between Genow GmbH (hereinafter referred to as Genow) and the customer. The following special conditions (Sections II to III of these GTC) apply in addition to, and in the event of any conflict, take precedence over, the General Terms and Conditions (Section I of these GTC) for the products mentioned therein.
  2. These General Terms and Conditions also apply to businesses. Any agreement, even tacit, between the contracting parties is sufficient for their incorporation into the contract. Section 305 Paragraph 2 of the German Civil Code (BGB) does not apply.
  3. Genow reserves the right to amend these General Terms and Conditions, provided that such amendments do not affect essential provisions of the contractual relationship and are necessary to adapt to developments that were unforeseeable at the time of contract conclusion and whose disregard would significantly disrupt the balance of the contractual relationship. Essential provisions include, in particular, those concerning the type and scope of the contractually agreed services and the contract term, including the provisions for termination. Furthermore, these General Terms and Conditions may be amended or supplemented to the extent necessary to eliminate difficulties in the performance of the contract arising from gaps in the regulations that emerged after the contract was concluded. This may be the case, in particular, if case law changes and one or more clauses of these General Terms and Conditions are affected.
  4. Genow is entitled to adjust the agreed fees for the first time 12 months after the conclusion of the contract, and thereafter at most once per contract year, with a notice period of 3 months in writing, to reflect general cost and price developments (in particular personnel, infrastructure, and license costs). If an increase exceeds 5 % compared to the most recently applicable fee, the customer may terminate the affected contract with 1 month’s notice to the effective date of the increase; Genow will inform the customer of this right in the notification. If the customer does not terminate the contract in due time, the adjusted fee will apply from the announced date.
  5. If the ordered product is unavailable because Genow is not supplied with it by its suppliers through no fault of its own, Genow may withdraw from the contract. In this case, Genow will inform the customer immediately. Genow will refund any payments already made by the customer.

§ 2 Conclusion of Contract

  1. A contract is concluded upon the signing of an order form by the customer and Genow, or by means of a written order from the customer and a corresponding order confirmation from Genow, or by separate, mutual agreement.
  2. A contract is also concluded if, without prior order confirmation, Genow delivers the goods or services in accordance with the customer’s order within 8 days and sends a corresponding invoice to the customer.

§ 3 Remuneration, Terms of Payment and Offsetting

  1. For deliveries and services provided in accordance with these terms and conditions, Genow will charge the prices specified in the offer. All prices are subject to German VAT at the rate applicable on the date of invoicing.
  2. The deduction of a discount is excluded unless it has been separately agreed in writing between the contracting parties.
  3. Unless otherwise stated in the individual offer or order confirmation, payment for services is due net (without deductions) within 14 days of the invoice date. The statutory regulations regarding the consequences of late payment apply.
  4. The customer is only entitled to set-off rights if their counterclaims have been legally established, are undisputed, or have been acknowledged by Genow. Furthermore, they are only entitled to exercise a right of retention to the extent that their counterclaim is based on the same contractual relationship.
  5. If the customer defaults on payment of due fees, Genow is entitled to demand default interest at the statutory rate (Section 288 Paragraph 2 of the German Civil Code); the right to claim further damages for default remains unaffected. If the customer is in default with a substantial portion of the remuneration for more than 30 calendar days, Genow may, after prior notification and the unsuccessful expiry of a reasonable grace period, temporarily suspend the affected services in whole or in part (including blocking access to software provided as a service) until the outstanding amounts are settled; the customer’s payment obligation remains in effect during the suspension.

§ 4 Delivery Time

  1. The commencement of the delivery period specified by Genow is contingent upon the clarification of all technical issues. Furthermore, Genow’s fulfillment of its performance obligations is contingent upon the customer’s timely and proper fulfillment of its obligations. The right to raise the defense of non-performance of contract remains reserved.
  2. Delivery delays that occur through no fault of Genow entitle Genow to extend the delivery period by a reasonable amount of time or to withdraw from the delivery obligation in whole or in part. Should the delivery date be exceeded by more than 60 days in such cases, Genow is entitled to withdraw from the unfulfilled part of the contract in whole or in part.
  3. If Genow is in default of performance, the customer’s claim for damages and reimbursement of expenses due to the delay is limited to 0.5 % of the remuneration for the portion of the service that cannot be used as a result of the delay, for each completed week of delay. Liability for delay is limited to a total of 5 % of this remuneration. This does not apply if the delay is due to gross negligence or willful misconduct on the part of Genow.

§ 5 Material Defects

  1. Claims for defects in quality are excluded if the deviation of Genow’s services from the contractually agreed specifications is insignificant. The warranty does not cover the rectification of software errors or errors caused by improper use, operating errors, normal wear and tear, an inadequate system environment, use under operating conditions other than those specified, or insufficient maintenance by the customer or third parties. Section 7 applies additionally to claims for damages and reimbursement of expenses.
  2. The customer must report any defects immediately in writing, in a comprehensible and detailed manner, providing all information relevant for defect identification and analysis. In particular, the appearance and effects of the defect must be specified.
  3. If Genow fails to rectify or circumvent a significant defect, even after setting and allowing a reasonable deadline to expire, so that the customer can use the purchased item (such as software) in accordance with the contract, he may demand a reduction in the remuneration or rescission of the contract.
  4. Customer claims for defects in the goods shall become time-barred within 12 months from the statutory commencement of the limitation period. This does not apply to claims for damages in cases of intent, gross negligence or injury to life, body or health, to claims under the Product Liability Act, or in cases of fraudulent concealment of a defect.
  5. The accuracy, completeness, timeliness, or suitability of outputs generated by artificial intelligence functions for specific purposes of the customer does not constitute an agreed-upon characteristic; deviations from this do not constitute a defect unless expressly agreed otherwise. The customer shall assess outputs through reasonable human review before using or relying on them.

§ 6 Legal Defects

  1. Genow is liable for infringements of third-party rights caused by its services only to the extent that the services are used in accordance with the contract. Genow’s liability for infringements of third-party rights is limited to the European Union and the location where the services are used in accordance with the contract. Claims based on defects of title are excluded if the deviation of Genow’s services from the contractually agreed specifications is insignificant.
  2. If a third party asserts against the customer that a service provided by Genow infringes its rights, the customer shall notify Genow immediately. Genow is entitled, but not obligated, to defend against the asserted claims at its own expense, to the extent permitted by law. The customer is not entitled to acknowledge third-party claims before giving Genow a reasonable opportunity to defend against the third party’s rights in another manner.
  3. If such claims have been asserted, Genow may, at its own expense, acquire a right of use, modify the software (licensed programs), replace it with an equivalent product, or - if Genow cannot achieve any other remedy with reasonable effort - reclaim the service and refund the customer’s payment, less a reasonable usage fee. The customer’s interests will be duly considered in this process.
  4. Claims based on defects of title become time-barred within one year from the statutory commencement of the limitation period.
  5. Section 7 applies additionally to claims for damages and reimbursement of expenses.

§ 7 Liability

  1. Genow is liable in accordance with statutory provisions if the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of its representatives or agents. Insofar as Genow is not accused of intentional breach of contract, liability for damages is limited to foreseeable, typically occurring damages.
  2. Genow is liable in accordance with statutory provisions if Genow culpably breaches a material contractual obligation; even in this case, liability for damages is limited to the foreseeable, typically occurring damage.
  3. In cases of slight negligence, liability under paragraph 2 is limited per claim and in total to the amount of net fees paid by the customer to Genow under the affected contract in the 12 months preceding the event causing the damage. This does not apply in the cases of paragraph 1 sentence 1 and paragraph 4.
  4. Liability for culpable injury to life, body or health remains unaffected; this also applies to mandatory liability under the Product Liability Act.
  5. In the event of data loss, Genow is only liable for the expenses necessary to restore the data, provided the customer has performed proper data backups. In cases of slight negligence on the part of Genow, this liability only applies if the customer performed a proper data backup immediately prior to the action that led to the data loss.
  6. Unless otherwise stipulated above, liability is excluded.
  7. The foregoing limitations of liability also apply in the event of any claims for damages by the customer against employees or agents of Genow.

§ 8 Force Majeure

  1. Genow is not responsible for delivery delays and service disruptions due to force majeure events.
  2. Events of force majeure include, in particular, strikes, lawful internal industrial action, war, civil unrest, natural disasters, fire, sabotage by third parties (such as spam emails), or the unavoidable loss of permits. Genow will inform the customer of the occurrence of any force majeure event.

§ 9 Retention of Title

  1. Genow retains title to delivered goods and software until all claims that Genow may have against the customer, now or in the future, in connection with the delivered goods, have been settled. In the case of an open account, the retained title serves as security for the outstanding balance owed to Genow.
  2. The customer is only permitted to resell products subject to retention of title, in particular to combine them with third-party goods, in the ordinary course of business. The customer is not entitled to pledge the products subject to retention of title, to transfer them as security, or to take any other actions that could jeopardize Genow’s ownership.

§ 10 Confidential Information and Data Protection

  1. Each party shall maintain confidentiality regarding all confidential information received from the other party, keep such information secure, protect it against theft, damage, loss and unauthorized access, and shall not use it for any purposes other than those contractually stipulated.
  2. Furthermore, each party shall ensure that its employees, officers, agents, and contractors comply with these obligations. These obligations shall remain in effect for a period of three years after any amendment, extension, or termination of the contract. This does not apply to information that is publicly available or subsequently becomes publicly available through no fault of the recipient.
  3. Personal data (“Data”) provided by the customer within the scope of this agreement will be processed by the parties in compliance with Regulation (EU) 2016/679 (GDPR) and the German Federal Data Protection Act (BDSG) in their respective valid versions. Insofar as Genow processes personal data on behalf of the customer, this will be done in accordance with a separate data processing agreement to be concluded pursuant to Article 28 GDPR. Genow undertakes to implement appropriate, economically reasonable, and sufficient technical and organizational security measures for all customer data to be processed within the scope of this agreement.
  4. Genow is entitled to anonymize and aggregate usage, log, and metadata generated in connection with the use of the software – whether provided directly or as a service via the internet (AIaaS) – to which Genow has access in the course of fulfilling the contract (in particular, telemetry data). The anonymized or aggregated data does not contain any personal information and does not allow any conclusions to be drawn about the customer, authorized users, or other affected persons. Genow may use this data for security purposes, statistical analysis, and the further development and continuous improvement of the software and the AI components; this right continues even after termination of the contract. The data will not be used for training, fine-tuning, or any other development of AI models. Insofar as personal data is processed for anonymization purposes, this will be done in accordance with the data processing agreement; the use of the anonymized or aggregated data is not subject to the data processing agreement and is the sole data protection responsibility of Genow.
  5. If, during the individual offer preparation process, software providers request the end user’s address, Genow will transmit the requested data to the extent that the customer specified it in their inquiry to Genow. This data may then also be stored on servers outside the scope of the European General Data Protection Regulation (GDPR).
  6. Genow is entitled to name the customer as a reference customer in marketing materials, offers, and on Genow ‘s website, using the customer’s name and logo. The customer may object to this at any time in writing with effect for the future. Individual responsible parties and contact details will not be disclosed. Genow will only publish content beyond the name and logo (e.g., reference reports) with the customer’s prior consent.

§ 11 General

  1. The customer is solely responsible for complying with all applicable import and export laws for deliveries and services, in particular those of the USA. In the case of cross-border deliveries or services, the customer shall bear any customs duties, fees, and other charges incurred. Unless expressly agreed otherwise, the customer shall independently handle all legal or official procedures related to cross-border deliveries and services.
  2. The relationship between the parties is that of independent contracting parties on market terms. Neither party is authorized to act on behalf of the other, to bind the other, or otherwise to create or assume obligations for the other.
  3. Should individual provisions of these General Terms and Conditions or the contract be or become wholly or partially invalid, the remaining provisions shall remain unaffected.
  4. In case of dispute, only the German version of the General Terms and Conditions is binding.
  5. If the customer is a merchant, the place of jurisdiction is Genow’s place of business. However, Genow is also entitled to sue the customer at the place of jurisdiction of the customer’s place of business.
  6. The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods.
  7. Unless otherwise stated in the order confirmation, the place of performance is the registered office of Genow.
  8. Amendments to these General Terms and Conditions must be in writing to be effective. This requirement can also be met by a qualified electronic signature as defined in Article 3, No. 12 of Regulation (EU) No. 910/2014 (eIDAS Regulation). The waiver of this written form requirement must also be in writing.

II. Special Conditions for the Delivery of Software (Software and Licenses)

§ 12 Deliveries

If software is delivered to the customer on data carriers, the risk passes to the customer – unless otherwise agreed – as soon as Genow has delivered the data carrier to the carrier/forwarding agent designated by Genow or to the person or company otherwise designated to carry out the delivery.

§ 13 Rights of Use

  1. Any agreed usage rights between the contracting parties are non-exclusive, limited to the term of the contract and subject to charges, unless expressly agreed otherwise.
  2. The Genow Platform is excluded from use unless the customer has unconditionally agreed to the license terms. Rights of use for the Genow Platform are also non-exclusive, limited to the term of the license agreement, and subject to a fee. The applicability of the Genow License Agreement remains unaffected.
  3. If the delivered item is standard software from a third party (manufacturer), the terms of use of that third party always apply. The license agreement is concluded directly between the manufacturer and the customer. Genow acts only as an intermediary for usage rights and cannot and will not, under any circumstances, agree to changes to the terms of use without the explicit consent of the third-party manufacturer. The valid terms of use will be made available to the customer upon request, even before the conclusion of the contract.
  4. Unless otherwise required by mandatory law, the licensee is not authorized to modify, edit, copy, or reproduce the software or any written material provided to him.
  5. Existing copyright notices or registration marks, such as registration numbers in the software, may not be removed or altered.
  6. The scope of services for the software is definitively determined by the service description in the offer. New or enhanced functions, modules, or services that Genow develops or offers after the conclusion of the contract and that go beyond the agreed specifications (collectively, “New Features”) do not automatically become part of the scope of services; their use requires a separate agreement between the parties and may be subject to additional payment. If Genow provides the customer with New Features without a separate agreement (e.g., for testing or preview purposes), this is done voluntarily and is revocable at any time; the customer has no right to the continued existence, availability, or specific characteristics of such New Features. Updates, patches, and upgrades that serve to maintain the agreed specifications remain unaffected.
  7. Genow software – whether provided directly or as a service via the internet (AIaaS) – is subject to fair use. Fair use is defined as long as the customer’s operating costs to Genow (particularly for computing, storage, and modeling capacities, including the costs of subcontractors) do not exceed 50 % of the monthly fee for that calendar month (or 1/12 of the agreed annual fee if billed annually). If usage exceeds the fair use limit, Genow will inform the customer, providing a transparent breakdown of the operating costs, and is entitled to technically limit the affected capacities to a reasonable extent after prior notification, provided that the essential functions remain available as contractually agreed.
  8. Regardless of the fair use policy, the usage restrictions agreed upon in the offer apply (in particular, the number of users, the number of document uploads, and storage and computing capacities). The customer must notify Genow immediately in writing of any exceedance of such a restriction. If usage exceeds a restriction for which tiered usage levels with corresponding fees have been agreed upon in the offer, Genow is entitled to invoice the fee for the next higher usage level from the beginning of the calendar month in which the restriction is exceeded, pro rata for any ongoing billing periods; for restrictions without a higher usage level, any further usage requires a separate agreement between the parties.
  9. Genow is entitled to verify compliance with the contractually agreed scope of use no more than once per calendar year. For this purpose, the customer shall, upon request, provide Genow with information in writing within 4 weeks regarding the scope of use (in particular, the number of authorized users and installations). If there are concrete indications of use exceeding the agreed scope, Genow may, after prior notification with reasonable notice, have a confidential third party conduct an audit at the customer’s premises; the customer shall cooperate appropriately in this audit. If the audit reveals significant overuse, the customer shall bear the reasonable costs of the audit; Genow ‘s obligation to compensate for overuse and any further rights remain unaffected.
  10. The customer may not use the software and its outputs to develop, train, or improve competing products or services, and may not disclose or publish the results of comparative analyses (benchmarking) to third parties without Genow ‘s prior written consent. Mandatory statutory rights (in particular Sections 69d and 69e of the German Copyright Act) remain unaffected.

§ 14 Protective Rights

Genow remains the legal owner of existing intellectual property rights and similar legal positions, in particular the Genow Platform.

III. Special Conditions for Services

§ 15 Subject Matter of the Contract and Performance of the Services

  1. Genow provides the services exclusively on the basis of the contract and these terms and conditions in return for the contractually agreed remuneration.
  2. Genow is authorized to transfer the agreed services, in whole or in part, to a qualified subcontractor.
  3. Genow provides the service in accordance with the principles of proper professional practice. The client bears responsibility for the project and its success, unless a work result to which Genow is responsible has been stipulated in a contract for work and services.
  4. The subject matter of the contract can consist of a one-off service, which may also be to be provided in parts, or it can be designed to be permanent.
  5. “Working day” is a period of 8 hours between 9 a.m. and 5 p.m. from Monday to Friday, excluding public holidays in Darmstadt/Germany.
  6. All Genow services for which a fixed or limited period has been agreed upon shall be provided by Genow on working days for the period specified in the respective order. All ongoing Genow services for which an indefinite duration has been agreed upon shall be performed by Genow on working days until they are terminated in accordance with the corresponding order. The provision of Genow services outside of working days requires Genow’s prior consent. Additional compensation for such times shall be payable in accordance with the currently applicable price list.
  7. Services that Genow performs at the customer’s request in addition to the services agreed in the contract will be billed separately at the applicable rates according to Genow’s current price list.

§ 16 Customer’s Duty to Cooperate

  1. The customer shall ensure that a designated contact person provides Genow with all necessary documents, information, and data for the provision of the services completely, correctly, promptly, and free of charge, unless otherwise stipulated by Genow. The customer shall grant Genow all necessary support and cooperation (such as information, resources, computing time, test data, workstations, and communication tools) free of charge in the performance of the services to be rendered.
  2. If the customer fails to adequately fulfill their obligations to cooperate and this delays Genow’s performance of their contractual obligations, the agreed deadlines will automatically be extended appropriately, but at least by the duration of the delay. Furthermore, Genow is entitled to a corresponding adjustment of the remuneration if it incurs additional expenses as a result.
  3. Genow considers it absolutely essential that the customer has a fully functional data backup in place at all times. The execution and maintenance of proper data backups is the sole responsibility of the customer, unless Genow has expressly agreed to this in writing.

§ 17 Rights of Use of Service Results

  1. Genow grants the customer a non-exclusive and non-transferable right to use the service results that Genow has provided and delivered to the customer under the contract for its own internal purposes within the scope of the contractually stipulated purpose, unless otherwise agreed.
  2. Genow may revoke the right to use the service results if the customer significantly violates usage restrictions or other regulations designed to protect against unauthorized use. Genow will first grant the customer a grace period to remedy the situation. In the event of repeated violations or under special circumstances that, after weighing the interests of both parties, justify immediate revocation, Genow may revoke the right without prior notice. The customer must confirm the cessation of use to Genow in writing following the revocation.
  3. Genow may provide the customer with data compiled and enriched with details from freely available (open source) data as a service provided by Genow. The customer is responsible for complying with and ensuring compliance with any applicable license terms and the intellectual property rights of the respective rights holders. The liability and warranty provisions of the open source licenses/rights apply only in relation to the respective rights holders.

§ 18 Contract Duration

  1. If the contract is concluded for an indefinite period, it can be terminated in writing with three months’ notice to the end of a calendar year. This termination is first possible at the end of the calendar year following the conclusion of the contract. Any agreed minimum term remains unaffected by this right of termination. However, if a minimum term is agreed upon and the contract is not terminated in writing at least three months before its expiry, the contract will automatically renew for another year.
  2. The right to extraordinary termination remains unaffected.

§ 19 Remuneration

  1. For adjustments to the remuneration, including adjustments to general list prices, Section 1 (4) shall apply.
  2. Expense reports are considered approved unless the customer objects in writing within 15 days of receipt.
  3. Travel expenses and other costs are to be reimbursed by the customer unless otherwise agreed in writing.

§ 20 Training Courses, Workshops

  1. For booking or ordering training courses, workshops or other paid events from Genow, the right of participation for the registered participant of the customer only arises after confirmation by Genow.
  2. Genow reserves the right to cancel any event at short notice, even after confirmation by the participant, if organizational or economic reasons prevent Genow from holding the event.

§ 21 Governing Language

In the event of any discrepancies between the German version of these General Terms and Conditions and any translation thereof, the German version shall prevail.