1.1 FLECS Technologies GmbH (hereinafter: Provider) provides a software called ‘FLECS’ for standard Linux-based systems. The software serves for automation of industrial control systems.
1.2 Additional information about the service is available on the Provider’s website at https://flecs.tech/.
1.3 This Agreement sets the conditions for individual contracts concluded under it for the purchase of vouchers for installations or updates or the assignment of support services.
1.4 Provider will conclude this Agreement only if Customer is a company or a person acting in the exercise of his or its trade, business or profession.
2.1 ‘Agreement’ means these General Terms and Conditions (GTC), which also include the information on the Provider’s website describing the service in more detail.
2.2 ‘Customers’ are amongst others programmable logic controller device manufacturers, machine manufacturers and machine operators who are looking for an open independent control system to automate their Linux-based controllers.
2.3 ‘Software’ is the program ‘FLECS’ that can be downloaded and installed. Customer can use the Software on a Linux-based system that is running with Intel or ARM-based processors. Via the Software Customer can access the Platform.
2.4 ‘Platform’ is a user interface where Apps can be downloaded, installed, updated, deinstalled, started, stopped and configured. Customer can update the Software, the firmware of his device or the Linux system via the Platform. Customer can purchase Installation- or Update-Tickets or conclude a support contract with the Provider on the Platform.
2.5 ‘App’ means an application of the Provider or a third party that can be downloaded and installed trough the Platform to control or evaluate an industrial system.
2.6 ‘Installation-Ticket’ is a voucher that enables the owner to download an App on the Platform. The Installation-Ticket contains a license key, which is redeemed after successful download of the file.
2.7 ‘Update-Ticket‘ is a voucher that enables the owner to download an Update for the FLECS Software, the firmware, Linux or an App on the Platform. The Update-Ticket contains a license key, which is redeemed after successful download of the file.
3. Object of the Agreement and Conclusion of the Agreement
3.1 Downloading the Software and using the Platform requires a registration with the Provider.
3.2 This Agreement between the Customer and the Provider is concluded through registration on the Platform and enables the Customer to get access to a user account. It is concluded as follows: By filling in the registration form and clicking on the button with the inscription ‘Register’ (or a similar inscription) the Customer submits his offer to conclude the Agreement. The Agreement is accepted by the Provider by sending a corresponding declaration via e-mail. The Provider does not store the wording of the Agreement. The Agreement can only be concluded in English.
4. Obligations of the Customer
4.1 By registration, the Customer undertakes providing his true first and last name and/or the company name and providing all information truthfully and completely. All changes affecting the data provided during registration must be adapted by the Customer immediately in his user account.
4.2 The Customer must store his login details securely and inaccessible for third parties. If the Customer has forgotten his password or his password is used by a third party without authorization, he can receive a new password.
5. Provision of the Software
5.1 With the user account the Customer can get access to the download file of the Software. The license of the Software will be granted according to Apache 2.0 (https://www.apache.org/licenses/LICENSE-2.0) and is not part of this Agreement.
5.2 Once a year, the Provider shall provide the latest version of the Software to be downloaded for free.
6. Provision of the Platform
6.1 Via the Software Customer can access the Platform.
6.2 Via the Platform Customer can download an App in exchange for an Installation-Ticket.
6.3 Installation-Tickets can be purchased on the Platform. The contract to purchase an Installation-Ticket is concluded as follows: By selecting the Ticket on the Platform and clicking the button ‘Buy Now’ (or a similar inscription), the Customer submits his offer to conclude the contract. This offer is accepted by the Provider by sending a corresponding declaration via e-mail. The Provider does not store the wording of the contract. The contract can only be concluded in English.
6.4 Each Customer is provided with a certain number of free Installation-Tickets per calendar month. The number of free Installation-Tickets is specified on the Provider’s website. Free Installation-Tickets expire at the end of the calendar month.
6.5 Software licenses necessary for the installation and the use of an App are not part of this Agreement. The Provider will only grant access to the App file. The use of an App may be subject to charges. The costs and terms of a license for the usage are governed by the contractual relation between the Customer and the App provider.
6.6 On the Platform Customer can get access to update files for the Software, an App, (if available) the firmware of his device and/or the Linux system in exchange for an Update-Ticket.
6.7 Update-Tickets to update the Software, the firmware, the Linux system or an App can be purchased on the Platform. The conclusion of the contract is carried out as described in Section 6.3 of this clause regarding Installation-Tickets.
6.8 Software licenses necessary for the update of the Software, the firmware or the Linux system are not part of the Update-Tickets according to this Agreement. The Provider will only grant access to the update files.
6.9 A certain number of Installation- or Update-Tickets specified on the Provider’s website must be purchased at once.
6.10 On the day the Agreement ends, all unused Installation- or Update-Tickets expire.
7.1 The Provider organizes and manages a Slack channel where a support community can discuss support topics and support each other. With the registration Customer is entitled to become part of the support community. In order to become member of the support community Customer must create a Slack Account and request the access to the channel from the Provider. The Provider will be only granting access to the community and is not responsible for community responses.
7.2 Customer can purchase premium support from the Provider. The support contract entitles the Customer to get support in case of bugs or questions directly from the Provider. The scope of support shall be in accordance with Appendix 1.
7.3 The premium support contract is concluded as follows: By selecting the support on the Platform and clicking the button ‘Buy Now’ (or a similar inscription), the Customer submits his offer to conclude the contract. The contract is accepted by the Provider by sending a corresponding declaration via e-mail. The Provider does not store the wording of the contract. The contract can only be concluded in English.
8.1 The Customer is entitled to contribute to the development or improvement of the Software. In order to become a contributor, the Customer must create a GitHub Account and request the access from the Provider.
8.2 If the Customer wants to contribute, he has to provide clean code that is free from malware and viruses. Anyone who contributes is solely responsible for the content and for any damage that results from it, regardless of the form of that content. Any contribution will be licensed on the basis of the Apache 2.0 license.
9.1 The term for this Agreements is unlimited. The Agreement can be terminated by either party at any time. The end of this Agreement has no legal effect to other contracts concluded on the basis of this Agreement if not explicitly regulated otherwise in this Agreement.
9.2 The initial term of premium support contract pursuant to Section 7.2 begins with its conclusion and ends with the end of the subsequent calendar month. The term renews for an additional calendar month if it is not terminated by one party upon one weeks prior notice to the end of the term.
9.3 Contracts can be terminated by either party by e-mail, in writing or by using the button “Delete Account” (or a similar inscription) in the user account.
9.4 The right to terminate for good cause shall remain unaffected.
10.1 Registration is free of charge.
10.2 The download of the Software is free of charge.
10.3 Any customization of the Software can be agreed separately and is not part of this Agreement.
10.4 Access to the Community is free of charge.
10.5 The fees for premium support from the Provider are specified on the Provider’s website. The remuneration is due in advance for each following calendar month. If the contract does not start on the first day of the month, the remuneration for this calendar month shall only be due on a pro rata basis. Invoices shall be issued digitally by e-mail. Unless otherwise agreed, invoices shall be paid without any deductions within 14 calendar days starting from the receipt of an invoice in proper form.
10.6 Installation- and Update-Tickets can be purchased on the Platform for a fee specified on the Provider’s website. Renumeration is due upon completion of the purchase.
10.7 All prices communicated do not include statutory value added tax.
11.1 The Provider offers an availability of 98% on an annual average for the Platform.
11.2 The Platform shall be deemed to be unavailable if the use is no longer possible overall, is only possible to a very limited extent, is only possible with considerable delays or other disturbances.
11.3 When calculating the actual availability, downtimes that are not attributable to the Provider shall be considered available times. These downtimes are:
(i) maintenance or other services agreed with the Customer as a result of which access to the Platform is not possible;
(ii) unforeseen necessary maintenance work, if this work was not caused by a breach of the Provider’s obligations to provide the services (force majeure, in particular unforeseeable hardware failures, strikes, natural events, etc.);
(iii) downtimes due to virus or hacker attacks, insofar as the Provider has taken the agreed protective measures or, in the absence of an agreement, the usual protective measures;
(iv) downtimes for the installation of urgent security patches;
(v) downtimes caused by third parties (persons not attributable to the Provider).
(vi) downtimes for scheduled maintenance and data backups if these are carried out between 00:00 a.m. and 6:00 a.m. (MEZ) and the Customer has been notified at least 7 days before the work is carried out. The announcement can be made in text form or as a dialog message in the front-end-system.
The Provider is entitled to name the Customers including company name and logo for reference purposes on the Provider’s website and in offline marketing materials such as flyers and product presentations.
13. Limitation of Liability
13.1 With respect to the provision of the Software and all other goods and services provided free of charge on the basis of this Agreement, the Provider is only responsible for intent and gross negligence.
13.2 For all goods and services that are not provided free of charge, the Provider shall only be liable for damages (i) caused by the Provider or its legal representatives or vicarious agents intentionally or through gross negligence or (ii) resulting from injury to life, body or health as a result of a breach of duty by the Provider or one of its legal representatives or vicarious agents. The Provider shall also be liable (iii) if the damage is caused by the breach of an obligation of the Provider, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance of which the Customer regularly relies and may rely on (cardinal obligation).
13.3 In the cases of Section 13.2, letter (i) and (ii), the Provider shall be liable within the scope of the statutory liability. In all other cases, the claim for damages shall be limited to the damage foreseeable and typical for this type of contract. The parties agree that a maximum damage of 100.000,00 EUR per case of damage is foreseeable and typical for this type of contract. If the Customer is at risk of damage that may exceed this amount, the Customer is obligated to notify the Provider immediately.
13.4 In cases other than those mentioned in Section 13.2 the liability of the Provider shall be excluded.
13.5 The liability provisions in the preceding paragraphs shall also apply to personal liability of the Provider´s representatives, employees, and vicarious agents.
13.6 Insofar as liability arises under the Product Liability Act from the assumption of a guarantee or due to fraudulent misrepresentation, it shall remain unaffected by the liability regulations above.
14.1 The parties agree to maintain confidentiality about confidential information. Confidential information is information which is explicitly designated as confidential, or which constitutes a trade secret within the meaning of the German trade secrets law. This obligation shall continue for a period of 5 years after termination of this Agreement.
14.2 Excluded from this obligation is such confidential information,
(i) which was demonstrably already known to the recipient at the time of conclusion of this Agreement or which subsequently becomes known to the recipient from a third party without violating a confidentiality agreement, statutory provisions or official orders;
(ii) which are publicly known at the time of conclusion of this Agreement or are made public thereafter, unless this is due to a breach of this Agreement;
(iii) which must be disclosed by statutory obligation or by order of a court or public authority. To the extent permissible and possible, the recipient obliged to disclose shall notify the other party in advance and give it the opportunity to take action against the disclosure.
14.3 The Parties shall only grant access to confidential information to those consultants who are subject to professional confidentiality or who have previously been subject to obligations equivalent to the confidentiality obligations of this Agreement. Furthermore, the parties will only disclose the confidential information to those employees who need to know it for the fulfillment of this Agreement and shall also oblige such employees to maintain confidentiality to the extent permitted by employment law for the period after their retirement.
15.1 This Agreement, including its annexes and the elements expressly incorporated, governs the contractual relationship between the parties conclusively and completely. General Terms and Conditions of the Customer are not accepted.
15.2 German law shall apply to the exclusion of the provisions of private international law and the UN Convention on Contracts for the International Sale of Goods.
15.3 For all disputes arising from or in connection with this Agreement (including those concerning its validity), the courts in Munich shall have exclusive jurisdiction in the first instance, provided that the Customer is a merchant or a legal entity under public law.
15.4 Changes and additions to this Agreement as well as a waiver of a right under this Agreement must be made in writing in order to be effective. This also applies to the waiver of the text form requirement itself.
15.5 If any provision of this Agreement is invalid or unenforceable in whole or in part, or subsequently loses its validity or enforceability, or if a regulatory gap becomes apparent, this shall not affect the validity of the remaining provisions. The parties undertake to replace the invalid or unenforceable provision or to fill the regulatory gap with an appropriate provision which, to the extent legally permissible, comes as close as possible to what the parties intended or would have intended according to the meaning and purpose of the Agreement if they had known the invalidity or the regulatory gap. If the invalidity or unenforceability of a provision is based on a measure of services or time (deadline or date) specified therein, the legally permissible measure that comes closest to the provision shall be agreed. It is the explicit intention of the parties that this provision does not result in a mere reversal of evidence, but that § 139 BGB is waived overall.
Appendix 1: Support and Service Level
1. Subject of Regulation
The following provisions of this Appendix specify the services provided by the Provider for premium support in accordance with the Provider’s GTC. All specifications refer to the quality of the Software owed by the Provider (hereinafter: Contractual Service). Impairments of data transmission that are not caused by the Contractual Service, in particular a disruption of the internet or the internet connection of the Customer, are not taken into account.
2. Support and Support Times
2.1 The Provider shall provide support in the event of errors in the Contractual Service based on this Appendix during support times on working days (at the Provider’s registered office) between 9:00 a.m. and 5:00 p.m. (MEZ).
2.2 Support is provided by email or via chat.
3. Troubleshooting and Error Classes
3.1 The Provider shall resolve any errors occurring in the Contractual Service and comply with the following response times:
|Error Class||Response Time and start with troubleshooting|
|Error Class 1: Fatal Error Definition: The use of the Contractual Service is no longer possible overall, only to a very limited extent, with considerable delays or other malfunctions.||4 hours|
|Error Class 2: Medium Error Definition: The use of the Contractual Service is limited, but possible with certain restrictions.||6 hours|
|Error Class 3: Slight Error Definition: All errors that cannot be assigned to another error class.||part of the next version of the Software|
3.2 The Customer must immediately report any errors in text form and support the Provider in investigating and resolving the error within reasons. An error message has to be so specific that a reasonable third party can understand the error and reproduce it on the basis of the error message.
3.3 Errors in the Software components are processed via remote maintenance.
3.4 The reaction time according to 3.1 begins upon receipt of a proper error message. If this time does not fall during support times, the response time begins with the beginning of the next support time.
The above provision specifies the Provider’s obligation to perform. The legal consequences in the event of failure to comply with the response times shall be governed by the statutory provisions, unless otherwise specified in the Agreement.