General Terms and Conditions of Contract for the SOLUTIONS Platform


The following General Terms and Conditions of Contract ("GTC") apply to the use of the SOLUTIONS platform and the use of the associated services. The GTC govern the provision of the SOLUTIONS Platform by MotionMiners GmbH, Emil-Figge-Str. 80, 44227 Dortmund, Germany ("MotionMiners") as well as the rights and obligations of the parties involved in connection with the provision of the services offered via the SOLUTIONS Platform and described in more detail in these GTC and the respective individual agreements. The GTC apply in the relationship between MotionMiners, the entrepreneurs who offer their products via the SOLUTIONS platform ("Providers") and entrepreneurs who request products via the SOLUTIONS Platform ("Solution Seekers"). Providers and Solution Seekers are hereinafter referred to collectively as "Users". Users and MotionMiners are hereinafter collectively referred to as the "Parties" or "Contracting Parties".


1. Definitions

The following definitions apply to the contractual relationship between the parties:
  • "Provider Identifier" means all trademarks of the Provider that are eligible for intellectual property rights, such as designs, trademarks, logos, fonts, tone sequences or the Provider's company.
  • "Service-Generated Data" means data or information about the provision or use of the Cloud Services, including activity logs or other data or information about User's use of the Cloud Services. Such data or information may be generated or derived manually by the Provider or automatically by the Cloud Services or related services.
  • "GDPR" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016.
  • "Individual Agreement" means an individual agreement concluded between the Parties with reference to these GTC for the provision of services offered via the Platform by MotionMiners, for example the transmission of requests from a Solution Seeker to a Provider in connection with a service offered via the SOLUTIONS Platform or a product of the same Provider. Individual agreements can be concluded by MotionMiners and the respective user via the SOLUTIONS platform in electronic form.
  • "Force Majeure" has the meaning set forth in the "Force Majeure" section.
  • "Cardinal Duties" has the meaning set forth in the section "Limited Liability for Violations of Cardinal Duties".
  • "Named Visits" has the meaning set forth in the "Information about Named Visits" section.
  • "User Data" means any data uploaded to the Cloud Services by the User and/or an Affiliate and/or an Authorized Third Party or generated by the User's and/or an Affiliate's and/or an Authorized Third Party's use of the Cloud Services in accordance with the Agreement, including any modifications to such data. For the avoidance of doubt, Service-Generated Data does not constitute User Data.
  • "User Identifier" means all of the User's trademarks that are eligible for intellectual property rights, such as designs, trademarks, logos, fonts, tone sequences or the User's company.
  • "Open source software" is software that is licensed by the respective rights holders to anyone for comprehensive, i.e. also for the purpose of processing and distribution (also in edited form), and royalty-free use, in compliance with the respective licensing requirements (such as the provision of license information, disclosure of modifications or delivery of the source code), and whose source code is available.
  • "OSS" has the meaning given to it in the definition of "open source software".
  • "Personal data" means personal data as defined in the GDPR.
  • "SOLUTIONS Account" has the meaning set forth in the "Authorization and Account Creation" section.
  • "SOLUTIONS Information Portal" has the meaning set forth in the "Provision of the SOLUTIONS Information Portal" section.
  • "Affiliates" are the companies affiliated with the Provider or User within the meaning of §§ 15 et seq. of the Stock Corporation Act.
  • "Contract Term" has the meaning set forth in the "Contract Term" section. In addition, the term refers to the period during which Users use areas and functions of the SOLUTIONS Platform without access restrictions in accordance with these GTC.
  • "Commencement of Contract" means the date on which an Individual Agreement takes effect. Unless otherwise stipulated in the respective individual agreement, this is the date of the last signature on the individual agreement.
  • "Contract Year" means any 12-month period during the term of an Individual Agreement, calculated from the first day of the Contract Term.
  • "Confidential Information" has the meaning set forth in the "Confidential Information" section.
  • "Good Cause" has the meaning set forth in the "Termination" section.


2. General Provisions

a. MotionMiners offers users the opportunity to use the SOLUTIONS platform in accordance with the provisions of these GTC within the framework of a service contract.
b. These GTC conclusively contain the contractual terms and conditions applicable between MotionMiners and the User for the services offered by MotionMiners within the framework of this Service Agreement. Terms and conditions deviating from these GTC shall only apply if they are confirmed by MotionMiners in documented form.
c. Individual agreements with the User shall be concluded with the inclusion of these GTC if the User declares acceptance of the offer in text form, for example within the framework of an electronic ordering process, but no later than upon receipt of the services provided by MotionMiners on the basis of the offer submitted to the User.
d. The SOLUTIONS platform is only available to users who are entrepreneurs within the meaning of § 14 BGB.
e. Dates and deadlines are non-binding, unless they are expressly agreed to be binding in text form. MotionMiners is only in default with an obligation to perform if the user has previously warned MotionMiners in text form and has unsuccessfully set a reasonable deadline for the provision of services.


3. Service provision by MotionMiners

3.1. Provision of the SOLUTIONS platform and related services

a. Provision of the platform. The SOLUTIONS platform is a platform for the mediation of solution seekers and providers in the field of logistics and production as well as for the initiation of contact between solution seekers and providers in accordance with the GTC and the respective individual agreement. MotionMiners shall not be a party to the contracts concluded exclusively between the users of the SOLUTIONS platform.
b. Contact from solution seekers. MotionMiners enables solution seekers to contact vendors in connection with advertised products and services via a contact form. If agreed by the parties in an individual agreement, MotionMiners will transmit the relevant contact requests from solution seekers to the respective providers, subject to the receipt of a fee payable by the provider in accordance with the individual agreement for the respective mediation.
c. Information about Named Visits. If agreed by the parties in an individual agreement, MotionMiners enables providers to contact solution seekers who have visited the product descriptions of the respective provider on the SOLUTIONS platform ("named visits") in exchange for payment of the remuneration specified in the individual agreement.
d. Provision of information. MotionMiners makes the SOLUTIONS Information Portal available to Solution Seekers in accordance with the "Provision and Use of the SOLUTIONS Information Portal" section and allows Vendors to create product descriptions of the products and services they offer through the SOLUTIONS Information Portal in accordance with the "Specific Provisions for Vendors" section.
e. Provision of additional consulting services. MotionMiners provides specific consulting services for solution seekers with regard to process optimization on the basis of separate individual agreements.
f. Access with SOLUTIONS accounts. MotionMiners may make Users' access to certain functions and areas of the SOLUTIONS Platform dependent on the creation of a SOLUTIONS Account and approval by MotionMiners in accordance with the section "Admission and Access to the SOLUTIONS Platform" or, at its sole discretion, may make it subject to further requirements, such as the type of use (as a Provider or as a Solution Seeker) or the payment of a remuneration.


3.2. Provision of services according to the state of the art

MotionMiners provides the SOLUTIONS platform according to the current state of the art. MotionMiners temporarily restricts the provision of the SOLUTIONS Platform and related services if this is necessary with regard to capacity limits, the security or integrity of the servers or for the implementation of technical measures, and this serves the proper or improved provision of the services or the maintenance of the SOLUTIONS platform. In these cases, MotionMiners takes into account the legitimate interests of the users, for example by informing the users in advance about foreseeable maintenance work.


3.3. Availability of the SOLUTIONS platform

MotionMiners does not guarantee any specific availability of the SOLUTIONS Platform, but will endeavour to make the SOLUTIONS Platform available within the operating hours to an extent appropriate for the nature of the service . In the following cases, the SOLUTIONS Platform will be unavailable without resulting in a breach of contractual obligations: (i) unavailability due to announced or unforeseeable maintenance, (ii) unavailability due to circumstances beyond the control of MotionMiners, (iii) unavailability due to force majeure. The measurement of availability is the responsibility of the users.


3.4. Access for your own business purposes and reservation of rights

Subject to the Users' material compliance with the obligations under these GTC and the respective individual agreement, Users may access the SOLUTIONS Platform for their own internal business purposes. The user does not receive any additional rights, in particular to the software, the associated IT services or the infrastructure services provided in the respective data center.


3.5. Power Transfer Point

The key power transfer point for the SOLUTIONS platform is the router output of the data center used by MotionMiners. MotionMiners is not responsible for failures or unavailability of hardware and software components, telecommunications networks or other networks after this service transfer point. The connection of users to telecommunications networks, the maintenance of the network connection as well as the procurement and provision of the hardware and software required by the users is not the subject of the GTC and is solely the responsibility of the respective user.


3.6. Provision of services by subcontractors

MotionMiners is entitled to have parts of the SOLUTIONS platform provided in whole or in part by suitable subcontractors. Insofar as MotionMiners uses subcontractors and users must comply with additional terms and conditions (e.g. license or other third-party conditions) in order to use the subcontractor's services, this is regulated in the respective individual agreement. The User undertakes to comply with the additional conditions set out in the Individual Agreement.


3.7. Licensing of Open Source Software

The software provided or executed by the user in connection with the SOLUTIONS Platform may contain open source software to which the license terms of the respective rights holders apply. The respective license conditions of the rights holders take precedence over the rights of use granted in the GTC; this also applies to warranty and liability exclusions of the OSS license terms. Contradictory provisions of the GTC do not apply in this respect.


3.8. Backups

Users are responsible for archiving information viewed via the SOLUTIONS Platform and stored by MotionMiners on a storage medium independent of the SOLUTIONS Platform.


3.9. Right to change benefits

MotionMiners reserves the right to change or expand the content and structure of the SOLUTIONS platform as well as the associated user interfaces if this does not impair the fulfilment of the purpose of the individual agreement concluded with the user or does not significantly impair it. MotionMiners will inform users of the SOLUTIONS platform about the changes accordingly.


4. Provision and use of the SOLUTIONS information portal

4.1. Provision of the SOLUTIONS information portal

MotionMiners provides solution seekers with an information portal with general information on process optimization via the SOLUTIONS platform ("SOLUTIONS Information Portal"). Certain functions and areas of the SOLUTIONS Information Portal are restricted and require the creation of a SOLUTIONS account in accordance with the section "Admission and Access to the SOLUTIONS Platform".


4.2. No specific recommendations for action

The information in the SOLUTIONS information portal, including recommended products from providers, is based on general empirical values and does not represent specific recommendations for action taking into account specific circumstances of the respective solution seeker. Specific consulting services for solution seekers, if offered, are the subject of a separate individual agreement between the solution seeker and MotionMiners.


4.3. No warranty and right of adjustment

MotionMiners does not assume any liability for the topicality, correctness and completeness of the information provided. MotionMiners reserves the right to change, supplement or delete all or part of the content of the SOLUTIONS Information Portal at any time without prior notice.


4.4. Provision of a catalog

The SOLUTIONS information portal refers to a catalogue with an overview of products and services from providers that are advertised via the SOLUTIONS platform. MotionMiners allows solution seekers to search for products and services in the catalog and sort the search results based on various criteria. MotionMiners does not check the content of the respective catalog entries. The accuracy, completeness and up-to-dateness of the products and services contained are the responsibility of the respective provider. MotionMiners does not adopt this content as its own and assumes no liability for it.


5. Admission and access to the SOLUTIONS platform

5.1. Creating an Account

a. The prerequisite for the admission of providers to the SOLUTIONS platform as well as for access to restricted areas of the SOLUTIONS platform by solution seekers is the creation of a user account and approval by MotionMiners ("SOLUTIONS account"). The SOLUTIONS platform is only available to entrepreneurs within the meaning of § 14 BGB . There is no entitlement to approval or use of the SOLUTIONS platform. A SOLUTIONS account is non-transferable.
b. When creating a SOLUTIONS account, the respective user must name the requested company data, in particular the company, invoice data and a contact person, as well as indicate whether he or she would like to use the SOLUTIONS platform for sales and/or purchasing. The registration of a legal person or partnership may only be made by a natural person authorised to represent the company, who must be named.
c. The user guarantees that the information provided by him in the context of the creation of a SOLUTIONS account is true and complete. If the data provided changes after registration , the user is obliged to update the information in the SOLUTIONS account immediately. The same applies to all information provided by the user when setting up employee logins.


5.2. Authorisation of users

a. Admission to the SOLUTIONS platform takes place by confirmation of admission by e-mail by MotionMiners. The inclusion constitutes a service contract for an indefinite period of time between MotionMiners and the respective user in accordance with these GTC.
b. MotionMiners is entitled to revoke a user's license or block access to the SOLUTIONS platform if there is reasonable suspicion that he or she has violated the provisions of this section. The user can avert these measures if he dispels the suspicion by presenting suitable evidence at his own expense.
c. All logins are individualized and may only be used by the respective authorized user. The user is obliged to keep the login and password secret and to protect them from unauthorized access by third parties. The User is also responsible for maintaining the confidentiality of the employee logins and will instruct their employees accordingly. In the event of suspicion of misuse by a third party, the user will inform MotionMiners immediately. As soon as MotionMiners becomes aware of the unauthorized use, MotionMiners will block the unauthorized user's access. MotionMiners reserves the right to change a user's login and password; in such a case, MotionMiners will inform the user immediately.
d. MotionMiners is entitled to (i) delete SOLUTIONS accounts from incomplete registrations after a reasonable period of time and (ii) delete SOLUTIONS accounts that have not been used for a period of more than two (2) years. MotionMiners will inform the User in question prior to the deletion of such a SOLUTIONS Account and set a reasonable period of time for the reuse of the SOLUTIONS Account or the completion of the registration.


6. Rights and obligations when using the SOLUTIONS platform

6.1. Contracts for Suppliers' Products

a. The SOLUTIONS platform does not allow users to conclude or execute contracts in relation to the advertised products. The conclusion and processing of contracts is the sole responsibility of the respective users.
b. MotionMiners is not a contractual partner of the contracts for products concluded exclusively between the users of the SOLUTIONS platform. MotionMiners does not assume any warranty or liability for material or legal defects of the advertised products for contracts concluded between the users. MotionMiners has no obligation whatsoever to ensure the fulfilment of the contracts concluded between the users.
c. MotionMiners cannot guarantee the identity and power of disposal of the users. In case of doubt, the users concerned are required to obtain appropriate information about the identity and authority of disposal of the other user.


6.2. Illegal content

a. Users are prohibited from posting content (e.g. through links or frames) on the SOLUTIONS platform that violates legal regulations, official orders or common decency. Furthermore, they are prohibited from posting content that violates the rights, in particular copyright or trademark rights of third parties.
b. As a matter of principle, MotionMiners is not obliged to proactively check the content posted by users for its legality or compatibility with the rights of third parties or these GTC. Nevertheless, MotionMiners is entitled, at its sole discretion, to carry out voluntary checks to detect and detect illegal or incompatible content and to take remedial measures.
c. Users and third parties have the opportunity to report product descriptions and other content to MotionMiners via the email address solutions-content@motionminers.com that they believe violates the provisions of this section "Illegal Content".
d. MotionMiners may take the following measures if content posted by a user violates legal regulations, the rights of third parties or these GTC: (i) deletion of content that is contrary to the law or contract, (ii) blocking access to certain product descriptions of providers, (iii) hiding content, including in the catalog or in search results, (iv) delaying the publication of content, (v) restricting the use of the SOLUTIONS platform, in particular, the ability to post further content, and (vi) subject to the "Termination" section, a temporary or permanent suspension of a SOLUTIONS account.
e. The User shall indemnify MotionMiners against all claims asserted by third parties against MotionMiners due to the violation of their rights or due to legal violations due to the product descriptions and/or content posted by the User, insofar as the User is responsible for them. In this regard, the User shall also bear the costs of MotionMiners' legal defense, including all court and attorney fees. At the request of MotionMiners, the User shall assume the legal defense against such claims of third parties and/or against official orders, insofar as the User is responsible for them.


6.3. Other obligations of users

a. The User is obliged to (a) set up and maintain the necessary data backup precautions when using the SOLUTIONS Platform and related services. This refers in particular to the careful and conscientious handling of logins and passwords; (b) promptly notify MotionMiners of any technical changes occurring in its area if they are likely to impair the provision of services or the security of the SOLUTIONS platform; (c) to cooperate in the investigation of third-party attacks on the SOLUTIONS Platform, insofar as such cooperation by the User is required; (d) use the SOLUTIONS Platform exclusively in the context of commercial business operations for commercial purposes.
b. The User undertakes to refrain from any action that jeopardizes or disrupts the functioning of the SOLUTIONS Platform, as well as not to access data to which he or she is not entitled. Furthermore, he must ensure that his information transmitted and data posted via the SOLUTIONS platform are not infected with viruses, worms or Trojan horses. Users are prohibited from using the SOLUTIONS Platform in violation of this Agreement, including, but not limited to, using the SOLUTIONS Platform for the following purposes: (i) testing, reverse engineering and decompiling the underlying source code, (ii) accessing or using the SOLUTIONS Platform in a manner that is intended to avoid any applicable usage fee or circumvent the usage restrictions of the respective individual agreement, (iii) any unauthorized public Making the SOLUTIONS Platform accessible, (iv) monitoring traffic when using the SOLUTIONS Platform without the prior documented consent of MotionMiners.
c. The User undertakes to compensate MotionMiners for all damages resulting from the non-compliance with these obligations for which the User is responsible and also to indemnify MotionMiners against all claims of third parties, including attorneys' fees and court costs, which they assert against MotionMiners due to the User's failure to comply with these obligations. At the request of MotionMiners, the User shall, at its own expense, assume the legal defense against such third-party claims and/or against official orders, insofar as the User is responsible for them.


6.4. Specific provisiorns for Provides

a. Vendors are given the opportunity to publish product descriptions of their products and services via the website https://solutions-admin.motionminers.com/admin. Providers are obliged to describe their products and services correctly and completely in terms of images and language. The respective product descriptions must truthfully state all characteristics and characteristics that are essential for the purchase decision. Providers must provide full information about the terms of payment and delivery. It is the responsibility of the Provider to ensure that product descriptions, including images, price indications and other information, are correct, complete and lawful in terms of content and do not violate legal regulations, the rights of third parties or the provisions of these GTC. Nevertheless, MotionMiners is entitled, at its sole discretion, to carry out voluntary checks to detect and detect illegal or incompatible content and to take remedial measures.
b. MotionMiners is entitled to adapt, reject or temporarily block product descriptions of providers at its own discretion for design reasons, in particular if they are not designed in accordance with the overall design of the SOLUTIONS platform.
c. Suppliers may only advertise products that may only be offered against legally required proof via the SOLUTIONS platform if the proof has been included in the description of the products and the product or service is only sold against the legally required proof.


6.5. Right to block access

a. MotionMiners is entitled to block access to the SOLUTIONS Account and related services by the User – temporarily or permanently – with immediate effect if there are concrete indications of (i) a violation of the section " Rights and Obligations when Using the SOLUTIONS Platform", (ii) a violation of applicable law or (iii) a material breach of payment obligations by the Provider or the Provider has any other has a legitimate interest in blocking.
b. When deciding on a block, MotionMiners will take appropriate account of the legitimate interests of the users and threaten a blocking in advance with an appropriate lead time in text form. In individual cases, a blocking can also be carried out without prior threat from the provider in order to protect the legitimate interests pursued by MotionMiners with the blocking, unless a prior threat is required by law or for other legal reasons.
c. The blocking of access to the SOLUTIONS Account shall not be deemed to be the termination of the user relationship or the individual agreements with the User concerned. MotionMiners can only maintain the blocking of access without termination for a reasonable period of time, a maximum of three (3) months.
d. MotionMiners' claim to payment of the remuneration in accordance with the individual agreements existing with the user remains unaffected during the blocking. The user has a right to regain access after proving that he has ceased the use in violation of the contract and that he has prevented future use in violation of the contract.


7. Intellectual property

7.1. Granting of rights

Unless expressly stipulated otherwise in these GTC or an individual agreement, the User does not receive any rights of use to the intellectual property of MotionMiners. All rights not expressly granted in this Agreement are reserved by MotionMiners. MotionMiners reserves all rights to work results, trademarks, know-how and other industrial property rights that exist for the SOLUTIONS platform or that arise in connection with the use of the SOLUTIONS platform.


7.2. User data

Unless otherwise stipulated in the contract, the User has all rights to all User Data and is solely responsible for the legality, accuracy and maintenance of the User Data. Without prejudice to the above, the User shall grant MotionMiners the necessary rights of use to enable the processing of User Data for the provision of the SOLUTIONS Platform and related services by MotionMiners and its vicarious agents in accordance with the provisions of the GTC and individual agreements.


7.3. Service-generated data

MotionMiners may aggregate, store, and evaluate service-generated data. MotionMiners may, during and after the end of the Term, (i) use Service-Generated Data to further develop and improve the SOLUTIONS Platform and related services and for other internal business purposes, and (ii) disclose Service-Generated Data only in anonymized form.


7.4. Data processing

The respective user is responsible for compliance with all relevant statutory data protection provisions, in particular for the lawfulness of the data transfer and data processing of personal data of his employees and other data subjects in connection with the use of the SOLUTIONS platform.


7.5. Feedback

Users grant MotionMiners an irrevocable, spatially and temporally unlimited right of use to their recommendations, corrections or other feedback on the use of the SOLUTIONS platform for unrestricted commercial exploitation for their own or third-party business purposes.


7.6. User identifiers and references

MotionMiners is entitled to refer to the contractual relationship with the Provider in an appropriate form in brochures and publications (e.g. reference lists) and to use provider identifiers in this context. If the Provider does not agree to this, it will inform MotionMiners accordingly in text form.


8. Remuneration

8.1. Usage fee and taxes

a. The User is obliged to pay the remuneration agreed in the respective individual agreement for access to restricted areas or functions of the SOLUTIONS Platform and related services.
b. If a usage-independent lump-sum remuneration per unit of time (e.g. month, quarter, year) has been agreed for the provision of access-restricted areas or functions of the SOLUTIONS Platform or associated services, this is due for payment in advance on a monthly basis for the minimum term and for each renewal period. A usage-based fee will be billed retrospectively.
c. All of the fees mentioned are subject to the applicable statutory value added tax. The User shall pay the remuneration to the Provider without deduction of withholding taxes or similar charges.
d. All invoices are due for payment within thirty (30) calendar days of receipt.


8.2. Default and invoicing

Unless otherwise agreed in the respective individual agreement, MotionMiners will invoice the User for the remuneration on a monthly basis for the respective previous month. In the event of default of payment, the statutory default interest applies.


8.3. Changes in remuneration

In the event of changes in market conditions, significant changes in procurement costs, changes in VAT or price increases by subcontractors, MotionMiners is entitled to adjust the remuneration for the services in question. However, such a price adjustment is permissible at the earliest twelve (12) months after the conclusion of the individual agreement and only once a year. MotionMiners will notify the User of the change in writing no later than six (6) weeks before it takes effect. In the event that the User does not accept the price increase, both MotionMiners and the User shall be entitled to terminate the individual agreement in its entirety with a notice period of one (1) month to the end of the calendar month, provided that the price increase amounts to more than three percent (3%) of the previous remuneration. In the event of termination, the prices that have not been increased until the termination takes effect shall apply.


8.4. Offsetting and rights of retention

a. Users can only offset claims that have been legally established or undisputed.
b. He is only entitled to assert rights of retention against MotionMiners if the counterclaim asserted is undisputed or legally established. The assignment of claims against MotionMiners is excluded. However, the above does not apply within the scope of application of Section 354a of the German Commercial Code.


9. Confidentiality

9.1. Fundamental

The contracting parties undertake to maintain secrecy about all protected or confidential information and data of the other contracting party that they become aware of in the course of the preparation, implementation and fulfilment of these GTC or an individual agreement on the basis of these GTC, in particular the trade and business secrets. In particular, the protected or confidential information is protected from unauthorized access by third parties and is not made directly or indirectly accessible to third parties without the prior consent of the disclosing contractual partner. Third parties in this sense are not the companies affiliated with the contracting parties pursuant to Sections 15 et seq. of the German Stock Corporation Act. In addition, the contracting parties undertake to use the protected or confidential information provided to them exclusively for the agreed purpose.


9.2. Confidential information

Proprietary or confidential information within the meaning of these GTC or an individual agreement under these GTC is any information that:
a. belong to the information protected under § 2 no. 1 of the Trade Secrets Act;
b. have been expressly designated as confidential by a Party in writing;
c. are protected by industrial and other property rights, e.g. design material for software (cf. § 69a para. 1 UrhG);
d. involve the personal or factual circumstances of the users and are subject to banking secrecy or data protection or a similar duty of confidentiality, or are of a similar nature to the data protected by banking secrecy or data protection; or
e. where the disclosing Party's interest in secrecy arises from the nature of the information, namely concepts, business plans, samples, procedures, formulas, source code, production techniques and ideas, product and program specifications, drawings, sales and marketing data or marketing plans, information on pricing and costs, information on suppliers and business relationships, and other trade and business secrets.


9.3. Exceptions

The inclusion under the Protected or Confidential Information shall cease if it is demonstrated, in whole or in part, with respect to the Protected or Confidential Information:
a. They were already known to the Contracting Party receiving them before they were transmitted, or
b. they were already publicly known before the notification or
c. they were made public after notification without the cooperation of the receiving Contracting Party and independently of any negligence on the part of the receiving Contracting Party, or
d. they have been made known to the receiving Contracting Party by a third party who is not subject to any direct or indirect obligation of secrecy vis-à-vis the other Contracting Party.
Proof of the existence of one of these exceptions must be provided by the Contracting Party invoking the exception.


9.4. Handling of confidential information

The proprietary or confidential information received from one party may only be made available by the other party to those employees, consultants, subcontractors or other third parties who have a need to know about it ("limited subject group") in order to fulfill the obligations listed in these GTC or an individual agreement or arising therefrom. All members of the factually limited group of persons who come into contact with the protected or confidential information in the course of cooperation must be obliged to maintain confidentiality under conditions at least equivalent to those of these GTC before disclosing this information to this group of persons, even after any termination of the respective contractual or employment relationship with the respective member of the group of persons.


9.5. Duration

The confidentiality obligation in this Section shall also apply for three (3) years after the termination of the Agreement, regardless of whether the Individual Agreement is terminated by termination, rescission or otherwise.


9.6. Release and deletion

If a contracting party so requests, the documents handed over by it must be handed over to it after the termination of the contractual relationship, unless the other contracting party can assert a legitimate interest in these documents. Copies of documents that are made as part of regular data backup measures are exempt from this obligation to surrender, provided that the party otherwise obliged to hand them over ensures that the provisions of this Section 13 continue to apply and that the documents cannot be used for any other purposes beyond mere data backup.


10. Liability

10.1. Unlimited liability

The contracting parties shall be liable in accordance with the statutory provisions and without limitation for:
a. Injuries to life, limb or health resulting from the fault of one of the parties or their legal representatives or vicarious agents;
b. intent or gross negligence;
c. claims under the Product Liability Act;
d. violation of a quality guarantee given by the respective contracting party;
e. fraud or fraudulent misrepresentation;
f. Violations of the Minimum Wage Act; or
g. Payment.


10.2. Limited liability in the event of breaches of cardinal duties

In cases of simple negligence, the contracting parties are only liable if an obligation has been violated that is essential for the achievement of the purpose of the contract ("cardinal obligation"). The term "cardinal obligation" is to be understood as those duties whose fulfilment is essential for the proper performance of the contract in the first place and on the fulfilment of which the contracting parties may regularly rely. Cardinal duties are the obligation to provide the cloud services in a timely manner, the freedom from defects of title of the cloud services as well as those material defects that impair the functionality or usability of the cloud services more than negligibly, as well as duties of advice, protection and care that are intended to enable the user to use the cloud services in accordance with the contract or to protect the life or limb of the user's personnel or the protection of his property from considerable damage. In the event of a breach of a cardinal obligation, liability is limited to the damage per claim that is typically foreseeable at the time of conclusion of the contract.


10.3. Typically foreseeable damages at the time of conclusion of the contract

The contracting parties define the following amount as damage that is typically foreseeable at the time of conclusion of the contract within the meaning of the section "Liability for breaches of cardinal obligations":
the total amount of remuneration paid by the User in accordance with the applicable individual agreements for the relevant services provided by MotionMiners in the past twelve (12) calendar months.


10.4. Other Limitations of Liability

Subject to the "Unlimited Liability" section, neither party shall be liable for the following damages:
a. loss of anticipated savings;
b. loss of profit expectations;
c. damage to reputation or reduction of goodwill;
d. consequential damage caused by defects or damage caused by seizures ;
e. in the event of data loss or data destruction, MotionMiners shall be liable within the scope of the above provisions, limited to the amount of the damage that would have occurred even if the data had been properly backed up by the user.


10.5. Exclusion of further liability

Any further liability of the contracting parties is excluded.


10.6. Other liability regulations

a. If several claimants derive claims from the contract from a simple negligent breach of duty of essential contractual obligations of the provider in accordance with the section "Limited liability in the event of breaches of cardinal obligations", the damage specified in the section "Typically foreseeable damages at the time of conclusion of the contract" a certain maximum amount of liability for the relevant claims of all claimants in total. The maximum liability amount is only available to the user and the other claimants jointly and once (joint creditors within the meaning of § 428 BGB).
b. MotionMiners is also entitled to objections and objections arising from the contract vis-à-vis third parties.
c. The above provisions on the limitation of liability also apply to the personal liability of the employees, representatives and bodies of MotionMiners.
d. Claims for damages and claims for reimbursement of futile expenses by MotionMiners shall become statute-barred within one (1) year; with regard to the beginning of the limitation period, § 199.1 of the Civil Code applies. This does not apply to claims for damages and claims for reimbursement of futile expenses due to injury to life, limb and health, to claims under the Product Liability Act and to the violation of a warranted property or warranty. This also does not apply to claims based on an intentional or grossly negligent breach of duty by MotionMiners or a legal representative or vicarious agent of MotionMiners.


11. Contract Term and Termination

11.1. Contract

Unless otherwise agreed in the Individual Agreement, the respective Individual Agreement shall have a minimum term of one (1) Contract Year. Thereafter, the individual agreement shall be extended by one (1) additional contract year in each case, unless it is terminated in text form by one of the contracting parties with a notice period of three (3) months to the end of the minimum term or the respective extension.


11.2. Notice

a. Termination for cause. Each party is entitled to terminate individual agreements at any time pursuant to Section 314 of the German Civil Code (BGB) for good cause. Good cause exists if there are facts on the basis of which, taking into account all the circumstances of the individual case and weighing up the interests of the other party, the terminating party can no longer be expected to continue an individual agreement ("good cause"). If the good cause consists in the violation of a contractual obligation, termination is only permissible after the unsuccessful expiry of a period set for remedial action or after an unsuccessful warning, unless a deadline is dispensable pursuant to Section 323 (2) of the German Civil Code. An important reason that entitles the Provider to terminate the contract exists in particular if (i) the User is in default with the payment of the remuneration and does not make payment despite a reminder, or (ii) the provision of the Cloud Services violates legal or regulatory requirements.
b. Obligation to migrate data and right to data deletion. Upon receipt of a notice of termination by MotionMiners or after a self-termination by the User, the User shall immediately ensure that his data managed with the SOLUTIONS Platform is backed up and migrated to a system of the User at the latest upon termination of the individual agreement . Any transitional period necessary for the User to migrate the data managed with the SOLUTIONS Platform after the termination of the Individual Agreement shall require a separate agreement with MotionMiners in text form. Upon request and for a separate fee, MotionMiners supports the user in the context of the migration. After the agreed transition period has expired, MotionMiners will delete the user's data in accordance with the legal obligations.


12. Final provisions

12.1. Right of amendment

a. In the event of changes in the law, changes in case law, changes in the terms and conditions of subcontractors to be passed on by MotionMiners to the User, or changes in the economic circumstances, MotionMiners reserves the right to amend the GTC in accordance with the following provision with regard to the individual agreement with the User, provided that this does not change the contents of the individual agreement that are essential for the equivalence relationship between the parties and that the change is reasonable for the user.
b. MotionMiners will notify the user of the change in text form. If the User does not object to the change to the Provider in text form within six (6) weeks of receipt of the notification, the change shall be deemed to have been approved and the amended version of the GTC shall apply to the individual agreement existing between MotionMiners and the User from this point on. MotionMiners will expressly inform the user of this consequence when notifying the user of the change. In the event that the User does not accept the change, both MotionMiners and the User are entitled to terminate the Individual Agreement with effect from the effective date of the change.
c. Amendments and additions to the individual agreement as well as other declarations in connection with the individual agreement that trigger a legal consequence (e.g. setting of deadlines, terminations) must be in text form in order to be effective.


12.2. Severability clause

Should individual provisions of the GTC not be legally effective or lose their legal validity due to a later circumstance, or should a gap in these GTC become apparent, this shall not affect the legal validity of the remaining provisions. The contracting parties undertake to agree on a valid provision in place of the invalid provision that comes as close as possible to the economic purpose of the invalid provision.


12.3. Applicable law and jurisdiction

a. This contract is governed by the laws of the Federal Republic of Germany. The provisions of the UN Convention on Contracts for the International Sale of Goods do not apply.
b. The exclusive place of jurisdiction for all legal disputes of the parties arising out of or in connection with the contract is Dortmund, Germany.