General Terms and Conditions for the use of the enwitec BRAIN Cloud and the BRAIN App via the Internet (Software as a Service)
1 Validity
These General Terms and Conditions apply to all Software as a Service (SaaS) contracts between enwitec electronic GmbH (hereinafter “Provider”) and its customers (hereinafter “Customer”). Deviating, conflicting or supplementary terms and conditions of the Customer shall not become part of the contract unless the Provider agrees to their validity in writing. The use of the software and cloud infrastructure by the Customer shall be deemed as acceptance of the Provider’s GTC, waiving the Customer’s GTC. Other terms and conditions shall only be binding if the Provider has acknowledged them in writing; the Provider’s GTC shall then apply in addition.
2 Services
2.1 The enwitec BRAIN Cloud software platform and the associated enwitec BRAIN app are provided by the provider as a web-based Software as a Service solution (SaaS). The customer is enabled to use the software stored and running on the servers of the provider or a technical service provider commissioned by the provider via an internet connection for its own purposes during the term of this contract and to store its data with its help.
The Provider shall provide the Customer with the latest version of the software for use at the router exit of the data center where the server with the software is located (“transfer point”). The software, the computing power required for use and the required storage and data processing space shall be provided by the Provider. However, the provider is not responsible for establishing and maintaining the data connection between the customer’s IT systems and the described transfer point.
2.2 The exact scope of services, the nature, the intended use and the conditions of use of the services are set out in the respective service description of the system used(enwitec BRAIN HOME or enwitec BRAIN PROFESSIONAL), supplemented by the operating instructions for the software.
2.3 Additional services, such as the development of customized solutions or adaptations of the software, require a separate contract.
2.4 The Provider is entitled to make changes to the software in new versions, to expand it, to adapt it technically, to change menu navigation or layouts, or to restrict it in an appropriate manner, provided this is reasonable for the Customer. If this results in an additional scope of functions, an existing right of use shall also extend to the additional scope.
If functions are removed, the customer shall not be entitled to any rights arising therefrom, unless these are essential core functions of the software. The Provider shall inform the Customer of updated versions and corresponding usage instructions by electronic means and make these available accordingly.
3 Scope of use
3.1 The software runs exclusively on the servers of the Provider or a service provider commissioned by the Provider. The customer does not require any copyright usage rights to the software, nor does the provider grant any such rights.
However, for the term of the contract, the provider grants the customer the non-exclusive, non-transferable right, limited in time to the duration of the user contract, to load the user interface of the software for display on the screen into the main memory of the end devices used for this purpose in accordance with the contract and to make the resulting reproductions of the user interface. The customer is not permitted to
- A reverse translation of the software codes (decompilation) or reverse engineering;
- The transfer of the software to third parties without a corresponding written agreement with enwitec electronic GmbH;
- Modify, adapt or translate the software;
- Use the software for any purpose other than the agreed purpose.
3.2 The contractual services may only be used by the customer and only for the purposes agreed in the contract. During the term of the contract, the customer may access the contractual services via telecommunications (via the internet) and use the functionalities associated with the software in accordance with the contract using an internet browser or via the enwitec BRAIN app. The customer does not receive any further rights, in particular to the software or the infrastructure services provided in the respective data center. Any further use requires the prior written consent of the provider.
4 Prices and terms of payment
4.1 The payment period and amount of the remuneration for the use of the cloud services as well as the method of payment shall be based on the applicable price list or the individual offer and order.
4.2 All invoices are to be paid without deduction no later than 14 calendar days after receipt free paying agent.
4.3 If the customer delays payment of a due fee by more than four weeks, the provider is entitled to block access to the enwitec BRAIN Cloud following a prior reminder with a deadline and expiry of the deadline. The provider’s claim to remuneration shall remain unaffected by the blocking. Access to the software will be reactivated immediately after payment of the arrears.
4.4 The customer shall only be entitled to rights of set-off and retention if his counterclaims have been legally established, are undisputed or have been recognized by the provider.
5 Availability, deficiencies in performance
5.1 The availability of the cloud services provided is set out in the service description. Unless otherwise agreed, the Provider shall endeavor to achieve an annual average availability of the software platform of 99.9%. If this availability is demonstrably not achieved, the payment shall be reduced by one month’s fee or the corresponding pro rata amount for each month in which this was not achieved.
The basic, local optimization of the enwitec BRAIN system continues to run autonomously even if the Internet connection is interrupted; however, data storage and visualization in the portal require an active Internet connection.
5.2 In the event of only an insignificant reduction in the suitability of the services for contractual use, the customer shall have no claims for defects. The strict liability of the provider for defects that already existed at the time the contract was concluded is excluded.
5.3 The Provider draws the Customer’s attention to the fact that restrictions or impairments to the cloud services provided may arise that are beyond the Provider’s control. This includes, in particular, actions by third parties who are not acting on behalf of the Provider, technical conditions of the Internet that cannot be influenced by the Provider and force majeure.
The hardware and software used by the customer and the local technical infrastructure may also have an influence on the provider’s services. Insofar as such circumstances have an influence on the availability or functionality of the service provided, any liability on the part of the provider is excluded.
6 Data protection
6.1 The Customer shall grant the Provider the right to reproduce the data to be stored by the Provider for the Customer for the purposes of performing the contract, insofar as this is necessary for the provision of the services owed under this contract. The Provider is also entitled to store the data in a failure system or separate failure data center. The Provider shall also be entitled to make changes to the structure of the data or the data format in order to rectify faults. The Provider shall regularly back up the Customer’s data on an external backup server.
6.2 The customer grants the provider the right to use the system and measurement data in anonymized form for the purposes of research, further development and optimization. The customer may object to this type of use.
6.3 The use of anonymized data for marketing purposes requires the express consent of the customer.
6.4 Insofar as the Provider has access to personal data of the Customer or from the Customer’s area, it shall act exclusively as a processor and process and use this data only for the execution of the contract. The Provider shall comply with the Customer’s instructions for handling this data. The customer shall bear any adverse consequences of such instructions for the performance of the contract. The customer shall agree with the provider the details for handling in accordance with the data protection requirements (data processing agreement, DPA).
6.5 The Customer shall remain the controller both generally in the contractual relationship and in terms of data protection law. If the customer processes personal data in connection with the contract, the customer warrants that it is authorized to do so in accordance with the applicable provisions and shall indemnify the provider against third-party claims in the event of a breach.
6.6 The following shall apply to the relationship between the Provider and the Customer: The Customer shall be responsible for the processing of personal data vis-à-vis the data subject, unless the Provider is responsible for any claims of the data subject due to a breach of duty attributable to it. The Customer shall examine and respond to any requests responsibly.
6.7 The provider guarantees that the customer’s data will be stored exclusively in the territory of the Federal Republic of Germany, in a member state of the European Union or in another state party to the Agreement on the European Economic Area (EEA), unless otherwise agreed.
7 Obligations of the customer
7.1 The customer must protect the access authorizations assigned to him for the enwitec BRAIN Cloud / BRAIN App as well as identification and authentication information from access by third parties and not pass them on to unauthorized persons. The customer must ensure that any employees or sub-users behave in the same way.
7.2 The Customer is obliged to indemnify the Provider against all third-party claims arising from legal infringements that are based on an unlawful use of the subject matter of the service by the Customer or are carried out with the approval of the Customer. If the customer recognizes that such an infringement is imminent, there is an obligation to inform the provider immediately.
7.3 The Customer shall use the options provided by the Provider to additionally back up its data in its original area of responsibility.
7.4 For each case in which a contractual service is used without authorization in the customer’s area of responsibility, the customer must pay compensation. The customer reserves the right to prove that he is not responsible for the unauthorized use.
8 Fault management
8.1 The Customer is obliged to notify the Provider’s support team immediately and as precisely as possible of any functional failures, malfunctions or impairments of the cloud platform or software.
8.2 The Provider shall receive proper fault reports from the Customer during its normal business hours, assign them to the agreed fault categories and carry out appropriate measures for analysis and rectification.
8.3 Fault reports are assigned to one of the following categories after initial inspection:
- a) Serious fault: The fault makes it impossible to use the cloud services or only allows them to be used with serious restrictions.
- b) Other malfunction: The error restricts the use of the software platform more than insignificantly, without there being a serious malfunction.
- c) Other messages: General inquiries, functional requests, registration questions or operating instructions.
8.4 In the event of serious and other faults, the Provider shall immediately initiate measures to localize the cause. If the fault is not in the provider’s system, the provider shall inform the customer of this.
The provider shall provide the customer with measures for circumvention or rectification (e.g. online firmware updates or instructions for action), which the customer must adopt immediately.
9 Defects in the software
9.1 The quality of the software is determined by the respective specification of the enwitec BRAIN system. The software has been developed with scientific care and in accordance with the recognized rules of technology. There are no claims for material defects if there is only an insignificant deviation from the contractual quality.
9.2 In the event of material defects, the Provider may initially provide subsequent performance. Subsequent performance shall be effected at the provider’s discretion by remedying the defect, by providing access to a new version of the software or by demonstrating workarounds. The provider has two options for rectification. Section 11 shall apply additionally to claims for damages and reimbursement of expenses.
9.3 Claims due to a material defect shall become statute-barred within one year from the start of the statutory limitation period. The statutory periods in the event of intent, gross negligence or injury to life, limb or health shall remain unaffected.
10 Legal defects of the software
10.1 The provider shall only be liable for infringements of third-party rights by making the software available if the software is used in accordance with the contract and in the intended environment of use. The Provider shall only be liable for infringements of third-party rights within the European Union (EU) and the European Economic Area (EEA).
10.2 If a third party asserts claims against the Customer due to infringements of rights, the Customer shall notify the Provider immediately. The customer is not entitled to recognize third-party claims before he has given the provider a reasonable opportunity to defend the rights of third parties in another way.
10.3 If third-party rights are infringed, the Provider shall, at its own discretion and at its own expense, either a) procure the right of use for the Customer, b) design the service without infringing rights or c) take back the service and refund the remuneration paid (less compensation for use).
11 General liability of the provider
11.1 The Provider shall always be liable to the Customer without limitation for:
- a) damage caused intentionally or through gross negligence by him or his legal representatives or vicarious agents;
- b) damages under the Product Liability Act;
- c) damages resulting from injury to life, body or health.
11.2 The Provider shall not be liable for slight negligence unless it has breached a material contractual obligation (cardinal obligation). This liability is limited to the foreseeable damage typical of the contract in the case of material and financial losses. This also applies to loss of profit and loss of savings. For an individual case of damage, liability is limited to the contract value, in the case of ongoing remuneration to the amount of remuneration per contract year, but not to less than € 50,000.
11.3 In the event of loss of data, the Provider shall only be liable for the expenditure required to restore the data in the event of proper and regular data backups by the Customer.
12 Contract term and termination of contract
12.1 The SaaS services shall initially be provided from the date specified in the contract for the duration of the agreed minimum term. During this period, premature ordinary termination is excluded on both sides.
12.2 The contract can be terminated with a notice period of three months, at the earliest at the end of the minimum term. If this is not done, the contract shall be extended by a further year in each case, unless it has been terminated with three months’ notice to the end of the respective extension period.
12.3 The right of each contractual partner to extraordinary termination for good cause remains unaffected.
12.4 Any notice of termination must be in writing to be effective. Text form (e.g. simple e-mail) is not sufficient.
12.5 The customer shall back up its data stocks on its own responsibility in good time before termination of the contract. For data protection reasons, the customer will generally no longer be able to access these databases after termination of the contract.
13 Other
13.1 The customer shall be responsible for observing any import and export regulations applicable to the deliveries or services. In the case of cross-border deliveries or services, the customer shall bear any customs duties, fees and other charges incurred.
13.2 The substantive law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
13.3 Amendments and supplements to this contract must be made in writing.
13.4 The place of performance for payments by the Customer is the registered office of the Provider.
13.5 If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of business of the provider shall be the exclusive place of jurisdiction. The Provider may also sue the Customer at the Customer’s registered office.
13.6 Should any provision of these Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions. The same applies in the event of a loophole.
Status: March 2026