Conditions générales de vente

General Terms and Conditions of the Moosle GmbH

1. Scope / Binding period

1.1. These General Terms and Conditions (hereinafter referred to as "GTC") apply to business relations between Moosle GmbH, Im langen Morgen 35, 54536 Kröv, Germany ("Moosle) and its customers. Customers are exclusively business entities but not private end consumer (Section 13 German Civil Code).

1.2. Moosle offers services to customers in connection with the provision of an online application operated by Moosle which can be used via the internet (hereafter "Moosle-App") with the aim to support farmers (the "customers") in all processes of the value chain.

1.3 The content of the contract in detail is always based on the offer documents of Moosle agreed upon by the customer ("Offer"). In case of contradictions between the Offer and these GTC, the Offer shall take precedence.

1.4. General terms and conditions of the customer shall only become part of the Offer instead of or in addition to these GTC if Moosle expressly confirms this in writing to the customer at the time the contract is concluded.

1.5 Moosle is entitled to change these GTC at any time. The customer will be informed about the change by e-mail. If the customer does not object to the changes within four (4) weeks after receipt of the notification, the changed provisions shall be deemed accepted by the customer. In case of distribution, the customer will inform its end customers accordingly.

1.6. A binding offer by Moosle shall be valid for one month from the date of submission of the offer, unless another period is stated in the offer.

2. Services of Moosle

2.1. Essential and main part of the services provided by Moosle to the customer within the scope of the business relationship is the provision of the Moosle-App for use by the customer in the form of a temporary software licensing including support services for the customer and its users ("SaaS services"), consisting of the following subservices:

2.2. Upon a respective agreement between Moosle and customer Moosle also provides additional services for the customer, in particular performance-related services such as customizing of the Moosle-App or development of customer-specific modules for the Moosle-App (together "Work Result Services") or the provision of consulting and training services ("Services"). For Work Result Services the "Supplementary Provisions for Work Result Services" of these GTC (Sections 11 et seq.) shall apply additionally. The Supplementary Provisions for Work Result Services shall have priority over other sections of these GTC. As far as these GTC do not contain appropriate regulations for Services, the statutory provisions shall apply.

2.3.The functionality of the Moosle-App is described in detail in the Offer. Moosle is entitled to change the functional scope of the Moosle-App during the contract period. Moosle will inform the customer about technical changes in time, but at least two (2) weeks in advance.

2.4. Moosle provides the option that enables the customer to export the data stored in the Moosle-App for the purpose of data backup.

2.5. Unless otherwise stated in the Offer, the licensing of the Moosle-App is limited to the local area actually managed/farmed by the customer, i.e. for the use of the Moosle-App relevant area ("Property Area"); details can be stipulated in the Offer. The land area used as a basis for licensing is based on the area sizes recorded in the Moosle-App for "productive land". The highest value of the "booked area" or "drawn area" in the accounting month is decisive for the licensing. Areas removed from the Moosle-App will be considered for licensing for further 6 months after removal, unless the customer provides proof of the permanent removal of the area (sale, clearing, etc.).

3. Obligations of the customer

3.1. The customer acknowledges his obligation to cooperate as a precondition for the provision of services by Moosle and thus is a contractual obligation of the customer.

3.2. The provision of the Moosle-App is subject to certain conditions regarding the mobile devices used by the user. The customer shall inform itself about and observe the essential functional features of the Moosle-App and its technical requirements (e.g. regarding browser, client hardware and network connection). The customer bears the risk of whether the Moosle-App meets its wishes and requirements.

3.3. Technical requirements and specifications according to section 3.2 may change from time to time, especially in connection with updates of the Moosle-App. Moosle will inform the customer in due time before any change in requirements and specifications become effective. The customer shall implement current requirements and specifications without delay.

3.4. The customer shall ensure that the use of the Moosle-App does not exceed a reasonable system load (e.g. by uploading extremely large files); details are governed in the Offer.

3.5. The customer shall name Moosle a contact person, the address and e-mail address in writing at which the contact person can be reached. The contact person must be entitled to make the necessary decisions for the customer or to bring about them immediately. The contact person shall ensure a good cooperation with the contact person of Moosle.

3.6. The customer shall manage its intended users or its intended group of users (in case of the release of a whole domain) in the Moosle-App.

3.7. The customer shall ask the users authorized by it according to section 3.6 in a suitable way to comply with the regulations listed for the use of the Moosle-App. Moosle is entitled to demand from each user the electronic consent to an end user agreement integrated in the software, which is a prerequisite for its use of the software.

3.8. The customer will immediately enter changes in the vineyard register, in particular information on grubbing up, replanting, area additions and disposals in the Moosle-App. During the contractual relationship with Moosle and for a period of three (3) years after termination of the contractual relationship the customer will keep complete and sufficiently detailed records about the contractual scope of the licensing of the Moosle-App including the relevant data from the vineyard register. During the contractual relationship and for a period of three (3) years after termination Moosle is entitled to audit the customer at his own expense regarding the contractual scope of licensing of the Moosle-App. Moosle can carry out this audit itself or by a third party, which is not a competitor of the customer and is obliged to secrecy. This audit will be announced to the customer with at least ten (10) days’ notice and will be carried out during regular business hours at the customer's location in a way that does not unreasonably disturb the normal business activities of the customer. An audit will take place at most once a year. The customer shall support the audit in a reasonable manner and provide the required information in an appropriate form. If during the audit it is discovered that customer’s use of the SaaS Services is not sufficiently licensed, the customer shall reimburse Moosle for the costs incurred in connection with the audit. Any other rights of Moosle remain unaffected.

3.9. In the event of a violation of licenses, the customer shall cooperate to the best of its ability in the clarification of violations and their scope, in particular by informing Moosle immediately of the corresponding violation.

3.10. If the customer does not fulfill a duty or obligation, or does not fulfill them adequately or not in time, and if Moosle is therefore not able to provide its services according to the contract, the agreed deadlines shall be extended according to the delay plus a reasonable period for resuming the work. Moosle will charge the customer for the additional expenses caused by this delay at the agreed rates.

4. Prices and terms of payment

4.1. The prices stated in the Offer are in Euro, plus the statutory value added tax valid at the time of performance of the service and are payable without deductions.

4.2. If Moosle incurs additional expenditure due to gaps or ambiguities in the documents provided by the customer, Moosle may invoice this additional expenditure at the agreed rates. This also applies to additional expenses which are due to contradictory or incorrect information from the customer's sphere.

4.3. Invoices are due for payment 14 days after receipt of invoice. In case of doubt, invoices shall be deemed received three working days after the invoice date.

4.4. In case of a delay in payment of more than thirty (30) calendar days Moosle has the right to revoke the granting of rights according to section 5.1 and/or to stop the access to the use of the Moosle-App with immediate effect. In case of doubt, neither such a revocation nor a prevention of access is to be interpreted as a withdrawal or termination of the contract. Moosle will restore the access as soon as the customer has settled the outstanding payments completely.

4.5. Moosle is entitled to adjust the remuneration for the services at any time. As far as this adjustment concerns fees to be paid regularly, Moosle shall inform the customer in writing at least two (2) months prior the end of the respective expiration date. The customer's right of termination (section 9) remains unaffected.

5. Copyright and Rights of Use

5.1. Upon payment of the fees owed Moosle grants the customer and the users named by the customer the non-exclusive, non-sublicensable, non-transferable, at any time revocable right to access the Moosle-App by means of telecommunication and to use the functionalities connected with Moosle-App by means of a browser according to this agreement. The rights granted are limited to the term of the contract and the content according to the following regulations. The customer does not receive any further rights, in particular to the Moosle-App or the software application on which the Moosle-App is based.

5.2. The customer is not entitled to use the Moosle-App beyond the use allowed according to this agreement or to entitle third parties to use the Moosle-App or to make it accessible to third parties. In particular, the customer is not allowed to copy or sell the Moosle-App or parts thereof nor to provide the Moosle-App for a limited period, especially not to rent or lend it.

5.3. The right of use always refers only to the latest available version of the Moosle-App; with an update the rights of use of previously provided versions expire for the future.

5.4. Moosle reserves the right to use information in the context of the use of the Moosle-App by the customer in anonymous form for the purpose of further development of the Moosle-App, in the context of cooperation with producers of agricultural products as well as for scientific purposes in the context of cooperation with academic institutions.

6. Rights of the customer in the event of defects in title

6.1. Moosle warrants that no rights of third parties are violated by the Moosle-App when used by the customer according to the contract. This warranty requires that the customer informs Moosle immediately in writing about any rights of third parties asserted against the customer and leaves the legal defense and settlement negotiations to Moosle. The customer shall support Moosle free of charge to a reasonable extent, especially by providing Moosle with the necessary information. Legal obligations of the customer to give notice of defects remain unaffected. Rights in this sense are only those which the third party is entitled to in countries where the customer uses the Moosle-App according to the contract.

6.2. If the customer cannot use a work result according to the contract because of a conflicting right of a third party, Moosle can choose either (a) to change the work result so that the right of the third party is no longer violated or (b) to provide the customer with the necessary authorization to use the work result. The customer himself or by involving third parties is excluded. Section 7 shall apply to claims for damages by the customer.

6.3. The customer shall have no rights based on defects of title if the work results have been modified after acceptance by the customer or third parties, unless the customer proves that the infringement of rights is not the result of the modifications. Claims of the customer also do not exist in case of infringement of rights due to a combination of Moosle's work results with such services or products of third parties, who are not subcontractors of Moosle in this respect.

7. Liability

7.1. Moosle shall be liable without limitation for damages caused by gross negligence or intentionally by Moosle, its legal representatives or vicarious agents. Furthermore, Moosle shall be liable without limitation for damages resulting from culpable injury to life, body or health.

7.2. Moosle shall only be liable in cases of violation of essential contractual obligations, the violation of which endangers the purpose of the contract and on the fulfillment of which the customer could particularly trust (so-called cardinal obligations), even in cases of slight negligence by Moosle. This liability is limited to the compensation of damages that were typically foreseeable at the time of contract conclusion. A further limitation of liability for all cases of slight negligence to the respective offer volume can be individually agreed in the Offer. Furthermore
a) With respect to the provision of SaaS-Services the liability according to Section 536a German Civil Code (Bürgerliches Gesetzbuch) and/or
b) In cases where the Moosle-App is provided to the customer free of charge for testing purposes,
the liability of Moosle for cases of slight negligence is excluded.

7.3. In cases of slight negligence Moosle shall not be liable for loss of profit, savings and reputational damage.

7.4. The aforementioned limitations of liability shall also apply in favor of the legal representatives and employees of Moosle and shall also apply in case of pre-contractual or tortious liability.

7.5. The liability of Moosle for damages according to the German Product Liability Act (Produkthaftungsgesetz) remains unaffected.

8. Secrecy and data protection

8.1. The parties shall keep secret all confidential information of the other party which comes to their knowledge as part of the cooperation, i.e. protect it with due diligence against unauthorized access. Unauthorized persons in the sense of this regulation are not the contractually appointed subcontractors or employees of Moosle. The parties commit themselves to involve only such employees or third parties in the cooperation, who have been obligated to maintain secrecy in a comparable form before.

8.2. Confidentiality is required for all information of a party - regardless of its form - which is marked in writing as requiring confidentiality or whose confidentiality is clearly evident from its nature, in particular company and business secrets. This also includes the conditions of the respective contract.

8.3. Information is not subject to secrecy if the receiving party can prove that it has either (i) are or have been publicly available, (ii) were already in the possession of the party without an obligation to maintain secrecy, (iii) have been developed independently and without the use of confidential information by another party or (iv) has lawfully acquired the information from a third party who was not bound to secrecy.

8.4. Moosle will meet the customer's agreed requirements for data protection and data security. Both parties will observe the respective applicable data protection regulations, especially those valid in Germany, and oblige their employees employed in connection with the contract to maintain data secrecy, unless they are already generally obliged to do so.

8.5. As far as Moosle processes personal data in the course of rendering its services according to this agreement, Moosle will act exclusively on behalf and at the instruction of the customer. The parties make a separate written agreement for data processing on behalf of customer.

8.6. The secrecy obligations continue to apply after the end of the contract.

9. Termination

9.1. Unless otherwise stipulated in the Offer, contracts have a minimum term of three (3) months. Contracts may be terminated by either party with one (1) months' notice to the end of the term. If no notice of termination is given, the term shall be extended by further thee (3) months’ periods.

9.2. The right of both parties to terminate a contract for good cause remains unaffected. If the reason for termination consists of a breach of a contractual obligation, the terminating party shall, prior to termination, set the other party a reasonable period to remedy the reason for termination. All circumstances which make further cooperation with the other party unacceptable, in particular also delay of payment with considerable amount of fees, the cessation of business by Moosle, or repeated or continuing serious deficiencies in the performance of services or cooperation are considered as an important reason for termination.

9.2. The right of the customer to terminate the contract extraordinarily without notice in case the contractual use of Moosle-App is not granted or withdrawn completely or partly in time (Section 543 para. 2 nb. 1 German Civil Code), is excluded.

10. General provisions

10.1. Moosle is entitled to use the customer or his brand/logo as a reference for the purpose of presentation on the company website or in brochures. A possible use beyond that e.g. as showcase or best practice example is only allowed upon customer's consent.

10.2. The assignment of contractual rights or obligations by the customer – in particular assignments and pledges - to third parties is excluded without prior written consent of Moosle.

10.3. The customer can only offset with an undisputed or legally binding counterclaim against payment claims owed by Moosle.

10.4. Changes and additions to this contract must be in written form. This also applies to a cancellation or waiver of the written form requirement. The parties agree that the written form shall also be deemed to have been complied with by sending signed declarations by fax to the fax numbers provided by the parties for communication within the scope of this contract. Unless otherwise agreed, all other communications within the framework of the implementation of this contract may be sent by e-mail (to the e-mail addresses provided by the parties for these purposes). Oral agreements and transmission by telephone are not sufficient.

10.5. The legal relationship between the parties is subject exclusively to German law under exclusion of its conflict of law regulations and the UN Convention on Contracts for the International Sale of Goods. Place of jurisdiction is the registered company seat of Moosle.

10.6. In case of any discrepancies between the English version and the German version of the GTC, the German version shall prevail.

Supplementary provisions for Work Result Services

11. Scope of work result services

11.1. Moosle provides the Work Result Services as agreed in the Offer documents and other service descriptions which become part of the contract (e.g. specifications).

11.2. Moosle uses carefully selected own employees or third parties as subcontractors with the necessary qualifications to perform the Work Result Services. Moosle is entitled to replace own employees or third parties with comparable qualification and experience at any time. If these employees were communicated to the customer by name, Moosle will inform the customer about the replacement.

11.3. The agreed remuneration only covers the scope of services documented in the Offer documents. Additional services will be charged separately on the basis of the agreed or customary market prices, unless it concerns unremitting and commercially insignificant auxiliary services. If the service description in the Offer documents contains unintentional gaps or ambiguities, Moosle is entitled to adjust the service description accordingly at its reasonable discretion.

12. Changes of services (change requests)

12.1. The customer has the right to propose changes to the content and scope of the agreed services (hereinafter "Change Request"). Change requests are to be submitted in writing to Moosle.

12.2. If the customer submits a Change Request, Moosle tries to check it promptly and informs the customer if the Change Request is unreasonable for Moosle or if it requires a comprehensive check. Moosle will then make a corresponding offer with price quotations for an additional fee for the examination (expense/flat rate). If a comprehensive examination is required, the customer will either issue or reject the examination order in writing within ten (10) working days.

12.3. If the customer commissions the examination of the Change Request, Moosle will inform the customer about its assessment of the effects (regarding effort, duration and remuneration) in case of the execution of the Change Request. Otherwise Moosle is not obliged to check the Change Request. The customer has to pay for the examination of a Change Request on the basis of the agreed prices, even if Moosle is not assigned with the execution of the Change Request afterwards. If Moosle refuses to execute the Change Request, only 50% of the agreed prices will be charged.

12.4. Changes of the contract become effective only with a written agreement, which contains the changes of the previous service agreement connected with the execution of the Change Request. Until then Moosle will continue the work on the basis of the existing agreement, unless the customer wishes an interruption of the agreed services, which will be at customer’s expense.

13. Specific customer duties

13.1. The customer shall in particular make decisions about project implementation and project content without delay and inform Moosle and check Moosle's proposals for changes without delay. If this is not possible for customer, it will contribute to immediate escalations. The customer is responsible for the control of his employees.

13.2. The customer shall provide Moosle all technical and other documents and information necessary for the successful execution of the project in time.

14. Acceptance

14.1. Work Result Services to be created by Moosle are subject to acceptance. Pure Services are not subject to acceptance. In the Offer it can be agreed that defined parts of the Work Result Services are accepted separately (real partial acceptance). Accepted partial results are the basis for the continuation of the work; they are not covered by a possible right to withdraw from the contract. The subject of a separate acceptance is only the contractual interaction of these partial results with other results (integration).

14.2. Moosle provides the customer with the Work Result Services for acceptance after completion. Unless otherwise agreed, the customer has to declare the acceptance of the Work Result Services within five (5) working days after provision, if the created Work Result Services do not show any defects preventing acceptance in the sense of the following regulations.

14.3. In the case of Work Result Services involving software, the parties shall agree on the course and scope of the acceptance test at the beginning of the execution of the contract. For the execution of the acceptance test the customer has to provide test data as well as the test results expected by him in time before the provision of the Work Result Services in the form mentioned by Moosle in the Offer documents and to create the agreed technical conditions. Moosle is entitled to participate in the acceptance test and to see the test results.

14.4. Defects preventing acceptance are defects of classes 1 and 2 according to the following definition:

14.5. The parties shall allocate the deviations found during the acceptance test to the defect classes by mutual agreement. Within the acceptance period, the customer shall fully document the result of the acceptance test, including the defects that occurred and their classification, in an acceptance protocol. If the customer has rightfully refused acceptance, Moosle will rectify the documented defects which prevent acceptance. Then the necessary parts of the acceptance test will be re-performed.

14.6. Work Result Services are considered to be accepted as soon as the customer uses them productively or he has not handed over a list of defects in which at least one defect preventing acceptance is listed within fourteen (14) days after handing over the Work Result Services. If the customer wishes design changes after handing over the Work Result Services or other project results, which are not subject of a notice of defects, Moosle will try to consider these wishes afterwards. Section 11.3 of these GTC is applicable in this case.

15. Rights of use of customer

15.1. Moosle grants the customer a non-exclusive right of use for the Work Result Services created for him limited in time to the period the SaaS services (i.e. to the use of the Moosle app) is contracted and without territorial restrictions for his internal company purposes. Moosle grants this right to the customer subject to full payment and acceptance. The customer has the right to transfer the right to its affiliated companies in the sense of § 15 AktG (German Stock Corporation Act) or to grant them a sublicense to use of the Work Result Services. The customer is aware that not only the customer, but also other customers and users of the Moosle-App can use the work results.

15.2. Until full payment and acceptance of the Work Result Services the customer has the right to test the Work Result Services as agreed; this does not include the right of operative use (according to section 15.1). This right to test expires if the Customer is in default of payment for more than thirty (30) days. A separate reminder by Moosle is not necessary for this.

15.3. Section 15.1 does not apply to standard products which are part of the Work Result Services. Standard products are the Moosle-App as well as identifiable products or solutions of third parties, which are subject to own license conditions. This also applies to Work Result Services which contain "Open Source Software" or the processing of this software. Both parties are obliged to observe these license conditions. The customer's rights to the standard products are determined exclusively by their license terms.

15.4. If information, software or documentation is provided free of charge - as for example in the case of open source software - Moosle is not liable for defects of title or quality of the information, software and documentation, especially for its correctness, accuracy, freedom from property rights and copyrights of third parties, completeness and/or usability. This does not apply in the case of fraudulent concealment of the defect, failure to comply with a guarantee of quality, injury to life, body, health or freedom and in the case of a deliberate or grossly negligent breach of duty. A change in the burden of proof to the disadvantage of the customer is not associated with the above provisions.

15.5. The granting of rights according to section 15.1 does not apply to materials or solutions (in the following "Moosle IP"), including the changes and additions made to them. Moosle reserves all rights to Moosle IP at any time. The rights of use granted to the customer for the Moosle IP which are included in the Work Result Services are determined by the purpose of the contract on which both parties are based. The isolated use of Moosle IP is excluded.

15.6. Moosle is in any case entitled to use the Work Result Services including the know-how acquired during the performance of the services, in particular the concepts, procedures, methods and interim results on which the Work Result Services are based, without restrictions, while observing its secrecy obligations.

15.7. As far as in the course of Moosle's performance Work Result Services are created which are patentable, or subject to utility design rights, Moosle may apply for a corresponding property right in its own name and on its own account. Moosle will grant the customer to the necessary extent the right to use the property right together with the Work Result Services. A separate remuneration for this property right license is not payable.

16. Rights of the customer in case of defects in material

16.6. The customer will inform Moosle about defects in the Work Result Services in writing immediately after their discovery and describe them concretely and sufficiently detailed. The customer's claims for defects in material become time-barred within twelve (12) months after acceptance, unless Moosle has fraudulently concealed the material defect; the legal limitation period for the customer's claims for damages due to material defects remains unaffected. In the case of partial services, the statute of limitations depends on the acceptance of the partial service concerned. Legal obligations of the customer to give notice of defects remain unaffected.

16.2. Defects in Work Result Services containing software shall be assigned by mutual agreement to the classes defined in section 14.4.

16.3. Moosle can determine the type of supplementary performance at its own discretion. A reasonable possibility of bypassing software errors ("workaround") provided by Moosle to the customer is also considered as supplementary performance, if an insignificant error remains after taking the workaround into account. Moosle can also demand that the customer imports program parts sent to him with corrections ("Bug Fixes"). Moosle can determine the time of the supplementary performance for defects which do not prevent the acceptance of the product at his own discretion.

16.4. The customer will support Moosle in the analysis and correction of the defects to the necessary extent free of charge. This includes in particular the provision of documents and information to Moosle free of charge to a reasonable extent.

16.5. The customer may reduce the agreed remuneration or withdraw from the contract in case of defects preventing acceptance if the supplementary performance has finally failed. The final failure has to be determined considering the complexity and the circumstances of the defect removal by Moosle. A final failure shall not be assumed even after two attempts of supplementary performance for a defect failed. A self-remedy of the defect by the customer or by involving third parties is excluded. Section 7 of these GTC shall apply to claims for damages by the customer.

16.6. Moosle is not responsible for defects which are based on faulty or incomplete service descriptions and requirements (e.g. in the form of specifications), concepts or defective services of the customer or third parties used by him. Moosle is also not responsible for defects, if Work Result Services have been changed after their acceptance, unless the customer can prove that the defect is not a consequence of the change.

16.7. If the defectiveness is based on the use of faulty third party software which Moosle uses for the purpose of service provision and Moosle is not allowed to remove the defect itself, Moosle's obligation to remove the defect consists in asserting the claims against the respective licensors.

16.8. The customer will reimburse Moosle for the expenses caused by unjustified notices of defects at the agreed prices in addition to the agreed remuneration.

17. Secrecy

17.1. Moosle is entitled to keep a copy of the Work Results Services and project documents for purely internal purposes, even if they contain confidential information. However, this authorization does not imply any obligation, i.e. Moosle cannot reserve any storage capacity beyond the period of project processing. The customer is solely responsible for the storage of his project information and results.

18. Term and termination

18.1. The customer's right of termination according to § 648 German Civil Code is excluded.

Date: January 27th, 2021