General terms & conditions of ReAct now GmbH

1. Validity of the general terms and conditions

These general terms and conditions of business and delivery apply to all contracts concluded between ReAct Now GmbH and the customer as well as all other agreements made within the framework of the business relationship. The customer's general terms and conditions are expressly not part of the contract, even if ReAct Now GmbH does not expressly object to them. In the event that the customer does not want the following general terms and conditions to apply, he must notify ReAct Now GmbH in writing beforehand.

2. Terms of payment and prices

1. Unless otherwise agreed in writing, all invoices from ReAct Now GmbH are payable within fourteen days of the invoice date. The date of receipt of the payment by ReAct Now GmbH is decisive.
2. In the event of default, ReAct Now GmbH is entitled to withhold further deliveries and services. If the customer is in default of payment, ReAct Now GmbH is entitled to charge interest at a rate of 9 percentage points above the applicable base interest rate.
3. All prices do not include the respective statutory sales tax. ReAct Now GmbH is entitled to make partial deliveries if this is reasonable for the contractual partner.

3. Delivery and shipping

1. All offers are non-binding. Delivery occurs only as long as the stock lasts. All delivery dates specified by ReAct Now GmbH are approximate and can therefore be exceeded by two to three days, unless a binding delivery date has been expressly agreed in writing. If the buyer requests changes or additions to the order after the order has been placed, or if other circumstances occur that make it impossible for ReAct Now GmbH to meet the delivery date, although ReAct Now GmbH is not responsible for these circumstances, the delivery date will be postponed by a reasonable period of time. If non-compliance with a binding delivery date can be proven to be due to mobilization, war, riots, strike or lockout or other circumstances for which ReAct Now GmbH is not responsible according to general legal principles, the delivery period will be extended appropriately. The customer can withdraw from the contract if he sets ReAct Now GmbH a reasonable grace period. The withdrawal must be made in writing. If ReAct Now GmbH is unable to fulfill the contract in whole or in part for the aforementioned reasons, it will be released from its delivery obligation.
2. The costs for shipping and transport insurance are generally to be borne by the customer, whereby the choice of shipping route and type of shipping is at the discretion of ReAct Now GmbH.
3. The customer is obliged to inspect the goods immediately upon arrival and to report any visible transport damage and any damage to the packaging to ReAct Now GmbH immediately in writing. The same applies to hidden damage from the point at which the defect becomes apparent. If ReAct Now GmbH loses its claims against the insurance company or the sub-supplier due to the failure to fulfill this obligation, the customer is liable for all costs resulting from this breach of obligation. The risk passes to the customer as soon as the goods leave the factory or warehouse of ReAct Now GmbH.

4. Limitation of liability

1. ReAct Now GmbH is liable in the event of intent and gross negligence in accordance with the statutory provisions. In the case of simple negligence, ReAct Now GmbH is only liable if an essential contractual obligation (cardinal obligation) is violated or there is a case of delay or impossibility. In the case of liability due to simple negligence, this liability is limited to such damage that is foreseeable or typical. Liability for the lack of guaranteed properties, due to fraudulent intent, for personal injury, defects of title, according to the Product Liability Act and the Federal Data Protection Act remains unaffected.
2. In the event of a claim against ReAct Now GmbH for warranty or liability reasons, contributory negligence on the part of the customer must be taken into account, especially in the case of insufficient error messages.
3. The limitations of liability set out below also apply to vicarious agents of ReAct Now GmbH.

5. Object of the software licensing

1. The subject of the software license is the non-exclusive temporary license of computer programs, user manuals and other accompanying material (collectively: "software") to the customer for a fee in accordance with the information in the order confirmation.
2. Unless expressly agreed otherwise, the software is provided for a limited period of time, spatially limited to the territory of the country in which the license was acquired by the customer, non-transferable and non-sublicensable.
3. Unless otherwise agreed, ReAct Now GmbH will deliver the software in the version current at the time of delivery in accordance with the service description in the documentation. The documentation can be provided electronically, it is part of the software. The source code is not delivered to the customer, but remains with ReAct Now GmbH.
4. Unless this has been expressly agreed in writing with ReAct Now GmbH, the customer is not entitled:
   
   • Edit the software or parts thereof. This also applies to the correction of errors, unless the error correction is carried out on and according to the instructions of ReAct Now GmbH;
   • Make the software publicly available;
   • Sublicense, lend, rent or sublease the Software.
5. The customer is only entitled to make a backup copy and to use a duplicate copy if the legal requirements are met and limited to the legal purpose and scope in accordance with Section 69d (2) and (3) UrhG.
6. Insofar as the legal requirements for this are met and limited to the legal purpose and scope according to § 69e Para. 1 UrhG, decompilation of the software by the customer is permitted; Otherwise, reverse engineering and decompiling (disassembling) is not permitted. Before decompiling, the customer is obliged to request ReAct Now GmbH in writing to disclose the interface information, describing the legal requirements in the respective case and setting a deadline. After the set, reasonable deadline has expired without result, the customer can decompile the software.
7. The customer is not entitled to remove or circumvent existing protective mechanisms of the software against unauthorized use, unless this is necessary for trouble-free use. Copyright notices, serial numbers and other features used to identify the software may not be removed or changed.
8. Customer acknowledges that the Software may have been developed using third party software and/or open source software and components. Rights to third-party software are only granted to the customer if they are necessary for their use together with the software from ReAct Now GmbH. The customer acknowledges the validity of the license terms of the manufacturer of the third-party software and the open-source software and undertakes to ReAct Now GmbH to comply with the license terms of the manufacturer of the third-party software and open-source license terms referred to in the product description or the associated annex to be observed, and releases ReAct Now GmbH from all claims due to a breach of these license terms by the customer, unless it is the customer his legal representatives or vicarious agents are not at fault. At the request of the customer, ReAct Now GmbH will provide the customer with the relevant license terms of the manufacturer of the third-party software and open source license terms before the contract is concluded. In cases where the respective open source license requires this, the customer can also request a copy of the open source software on data carriers against reimbursement of the shipping costs.
9. Services for training, individual implementation or customer-specific adaptation of the software require the conclusion of a separate written contract, to the conclusion of which there is no mutual right.

6. Software warranty

1. For the duration of the license, ReAct Now GmbH guarantees that the functionality of the software essentially corresponds to the program description in the accompanying written material.
2. ReAct Now GmbH points out that, given the current state of technology, it is not possible to create completely error-free computer software.
3. If a defect occurs, the defect and its form of appearance must be described in a written notice of defect in such detail that it is possible to check the defect (e.g. presenting the error messages) and to rule out an operating error (e.g. specifying the work steps). ) is possible. If the customer is a merchant, the provisions of Section 377 of the German Commercial Code (HGB) on the obligation to examine and give notice of defects under commercial law also apply if there has been no instruction in the operation of the system.
4. If the notice of defects proves to be justified, the customer sets ReAct Now GmbH a reasonable deadline for supplementary performance. The customer informs ReAct Now GmbH what type of supplementary performance - improvement of the delivered software or delivery of new, defect-free software - he wants. However, ReAct Now GmbH is entitled to refuse the selected supplementary performance if this can only be carried out at disproportionate costs and if the other type of supplementary performance would not entail any significant disadvantages for the customer. ReAct Now GmbH can also refuse supplementary performance if it can only be carried out at disproportionate costs.
   
5. ReAct Now GmbH is entitled to make two attempts within the period set by the customer to carry out subsequent performance for the same or a directly related defect. After the second failed attempt at supplementary performance, the customer can withdraw from the contract or reduce the price. The right of withdrawal or price reduction can be exercised after the first unsuccessful attempt at supplementary performance if the customer cannot be expected to make a second attempt within the set period. If subsequent performance is refused under the conditions set out above, the customer is immediately entitled to a reduction in price or the right to withdraw from the contract.
6. Withdrawal due to an insignificant defect is excluded.
7. If the customer has made claims against ReAct Now GmbH due to a warranty and it turns out that there is either no defect or that the claimed defect does not oblige ReAct Now GmbH to provide a warranty, the customer, if he is entitled to claim against ReAct Now GmbH is responsible for gross negligence or willful misconduct, to reimburse all expenses incurred.
8. No liability is assumed for the fact that the software is suitable for the customer's purposes and works together with the user's existing software.
9. The delivery of manuals and documentation beyond the written material / program description supplied with the software and the user guidance and / or online help implemented in the software, or instruction, is only owed if this has been expressly agreed in writing between the parties. In the event of such an express agreement, there are no requirements regarding the content, language and scope of a manual and/or documentation to be expressly delivered, and the delivery of brief instructions is sufficient, unless the parties have agreed on further specifications in writing.
10. The delivery of an operating manual in English is permitted if the subject matter of the contract has not yet been fully localized for the respective market. The same applies if the subject matter of the contract is generally only available in the English language version.
11. Unless expressly agreed otherwise in writing, the software is delivered in the standard license and documentation configuration specified by the manufacturer.
12. Any claims for damages are subject to the restrictions set out in Section 1 No. 4.

7. Termination of software license

With the effectiveness of the termination of the software license pursuant to Section 22, the software must be rendered unusable by the customer if delivered in non-physical form and returned to ReAct Now GmbH if delivered in physical form. He must confirm the destruction in writing to ReAct Now GmbH upon request. ReAct Now GmbH also has the right to disable the functionality of the software by remote shutdown.

8. Data Overuse

1. The customer grants ReAct Now GmbH the right to use data generated in connection with the use of the software for its own purposes. In particular, ReAct Now GmbH is permitted to pass on the data to third parties.
2. Insofar as it is not purely machine data but data relating to persons, ReAct Now GmbH undertakes to comply with the applicable data protection regulations. The customer is obliged, for example by concluding an order processing contract, to ensure that ReAct Now GmbH processes personal data in a legally compliant manner. It is the sole responsibility of the customer, as the person responsible under data protection law, to fulfill the existing data protection clarification and information obligations towards the data subject.

9. Subject of services

1. ReAct Now GmbH provides additional services for the customer, if this was agreed in the order confirmation, for a monthly fee, which results from the order confirmation.
2. The services include remote maintenance of the hardware and software as well as constant updating of the configuration. Any additional scope of services can be agreed separately.

10. Remote maintenance of hardware and software

1. Unless otherwise expressly agreed, remote maintenance of the hardware and software is carried out at the customer's request by telephone or via remote access during our normal business hours, Monday to Friday from 9 a.m. to 5 p.m. (except on public holidays).
2. We endeavor to carry out our remote maintenance services as uninterrupted as possible. Nevertheless, due to the peculiarities of the Internet medium and the risks of an interruption or termination of the information transmission, downtimes cannot be ruled out, even with all due care.
3. For error analysis, the customer must describe the error as precisely as possible. Any further information and documents that may be required must be made available to ReAct Now GmbH in full and in good time.

11. Configuration update

1. The constant updating of the configuration means that the customer is provided at any time (within a reasonable time) by way of software updates the latest version of the software that is included in its scope of services and that is on the hardware that is in its possession , is technically feasible.
2. In consultation with the customer, the software updates are primarily carried out outside of their business hours using remote access. We endeavor to carry out the software updates as uninterrupted as possible. Nevertheless, due to the peculiarities of the Internet medium and the risks of an interruption or termination of the information transmission, downtimes cannot be ruled out, even with all due care.
3. The regulations for the transfer of software (Section 5), in particular with regard to the warranty, apply accordingly.

12. Subject of license

1. In order to enable the full functionality of the hardware and software, ReAct Now GmbH provides the customer with various sound content, in particular so-called soundscapes, sound recordings, sound files and similar works (collectively: the "Sound Content") in accordance with this section available.
2. The sound content is protected by copyright. Purchasing a license only grants rights of use to the extent described in the order confirmation and here.
3. The subject of the licensing of the content is the non-exclusive temporary transfer of the content to the customer for a fee in accordance with the information in the order confirmation. Unless expressly agreed otherwise, the content is made available for a limited period of time, spatially limited to the territory of the state in which the license was acquired by the customer, non-transferrable and non-sublicensable.
4. Unless this has been expressly agreed in writing with ReAct Now GmbH, the customer is not entitled:
   
   • Edit the Sound Content or parts thereof;
   • Copy or make publicly available the Sound Content;
   • Play the Sound Content on hardware or software other than that provided by ReAct Now GmbH;
   • Sublicense, lend, rent or sublease the Sound Content.

13. GEMA

1. ReAct Now GmbH guarantees that GEMA will not be entitled to any remuneration for the contractual use of the sound content.
2. Should the customer be held liable by GEMA for the contractual use of the sound content of ReAct Now GmbH, he must inform ReAct Now GmbH of this immediately. ReAct Now GmbH will support the customer to a reasonable extent at its own expense in defending against GEMA claims.

14. Termination of licensing of sound content

With the effectiveness of the termination of the licensing of the sound content in accordance with Section 22, the sound content must be rendered unusable by the customer if delivered in intangible form and returned to ReAct Now GmbH if delivered in physical form. He must confirm the destruction in writing to ReAct Now GmbH upon request. ReAct Now GmbH also has the right to disable the functionality of the sound content by remotely switching it off.

15. Hardware warranty

1. ReAct Now GmbH guarantees that the goods do not have defects that cancel out or reduce the value or suitability for normal use or use as required by the contract.
2. ReAct Now GmbH and the customer agree that the explanations and descriptions of both the hardware and the software contained in the manual and/or in the price list do not constitute a guarantee of specific properties.
3. The warranty period is twelve months and begins on the day of delivery. The customer must report defects occurring during the warranty period to ReAct Now GmbH immediately in writing. If the customer is a merchant, the provisions of Section 377 of the German Commercial Code (HGB) on the obligation to examine and give notice of defects under commercial law also apply if no instruction has been given on how to operate the system.
4. The warranty does not include the elimination of defects that arise from normal wear and tear, external influences or operating errors. The warranty does not apply if the customer changes devices, elements or additional equipment himself or has them changed by third parties without the consent of ReAct Now GmbH, unless the customer provides full proof that the defects in question are not caused either in whole or in part such changes have been caused and that the correction of defects is not made more difficult by the change.
5. If the notice of defects proves to be justified, the customer sets ReAct Now GmbH a reasonable deadline for supplementary performance. The customer informs ReAct Now GmbH which type of supplementary performance - improvement of the delivered item or delivery of a new, defect-free item - he wants. However, ReAct Now GmbH is entitled to refuse the selected supplementary performance if this can only be carried out at disproportionate costs and if the other type of supplementary performance would not entail any significant disadvantages for the customer. ReAct Now GmbH can also refuse supplementary performance if it can only be carried out at disproportionate costs.
6. ReAct Now GmbH is entitled to make two attempts to carry out subsequent performance for the same or a directly related defect within the reasonable period set by the customer. After the second failed attempt at supplementary performance, the customer can withdraw from the contract or reduce the price. The right of withdrawal or price reduction can be exercised after the first unsuccessful attempt at supplementary performance if the customer cannot be expected to make a second attempt within the set period. If subsequent performance is refused under the conditions set out above, the customer is immediately entitled to a reduction in price or the right to withdraw from the contract.
7. Withdrawal due to an insignificant defect is excluded.
8. If the customer has made claims against ReAct Now GmbH due to a warranty and it turns out that there is either no defect or that the defect asserted does not obligate ReAct Now GmbH to provide a warranty, the customer, if he is entitled to claim against ReAct Now GmbH grossly negligent or intentional, to reimburse all expenses incurred by ReAct Now GmbH.
9. The delivery of an operating manual in English is permitted if the subject matter of the contract has not yet been fully localized for the respective market. The same applies if the subject matter of the contract is generally only available in the English language version.
10. Unless expressly agreed otherwise in writing, the hardware is delivered in the default and documentation configuration specified by the manufacturer.

16. Retention of title

1. Delivered hardware that was purchased by the customer remains the property of ReAct Now GmbH until the respective purchase price has been paid in full. The customer is obliged to properly insure the items subject to ReAct Now GmbH's retention of title (ie theft, fire, water and low-voltage insurance) and to provide ReAct Now GmbH with proof of such insurance upon request. In the event of damage, the customer's insurance claim is deemed to have been assigned to ReAct Now GmbH. The customer is not authorized to dispose of the items subject to retention of title. In the event of seizure or confiscation, the customer must inform ReAct Now GmbH immediately in writing and must immediately inform third parties of ReAct Now GmbH's retention of title in a suitable form. In the case, If the customer nevertheless sells the delivery items and ReAct Now GmbH should approve this, the customer assigns all claims against his customers to ReAct Now GmbH upon conclusion of the contract. The customer is obliged to provide ReAct Now GmbH with all information required to assert these rights and to provide the necessary cooperation.

‍

17. Rental period

1. The rental period corresponds to the contract period in months stated in the order confirmation.
2. The rental period is automatically extended by twelve months if it is not canceled in writing before the end of the rental period with six months' notice.
3. The rental period begins when the hardware is handed over.

18. Default of payment

1. If the customer is in arrears with at least two rents, the lessor is entitled to repossess his hardware to secure his property or to prevent damage without terminating the contract, without losing the right to continued payment of rent. However, the lessor is obliged to return the hardware to the lessee after full payment has been made.

19. Ownership

1. In the case of hardware rental, ReAct Now GmbH remains the owner of the hardware. ReAct Now GmbH is entitled to inspect the hardware at any time and to check its condition.
2. The customer may not sell, pledge, give away, rent or lend the rented hardware, nor assign it as security.
3. The customer must keep the rented hardware free of third-party rights. The customer must inform ReAct Now GmbH immediately of third-party claims on the rented hardware, theft, damage and loss. The customer bears the costs for measures to prevent access by third parties that were not caused by ReAct Now GmbH.
4. Subsequent changes and labels on the rented hardware are only permitted if ReAct Now GmbH has given its prior written consent. However, the customer is obliged, at the request of ReAct Now GmbH, to restore the original condition at the end of the contract at his own expense, unless ReAct Now GmbH has waived this or the original condition can only be restored with disproportionate effort.

20. Tenant obligation

1. The customer must ensure that rented hardware is treated in accordance with the manufacturer's operating instructions. The rented hardware is to be treated with care within the scope of the contractual purpose.

21. Return of leased hardware

1. After the end of the rental contract, the rented hardware must be returned by the customer immediately and free of dirt at his own expense and risk. A joint record of the condition will be prepared upon return and signed by both contracting parties or their authorized representatives.
2. If rented hardware is not returned on time against the will of ReAct Now GmbH, the customer will be charged a basic amount of 1/30 of the monthly rent agreed for the contract period for each day of withholding and the costs caused by the withholding .
3. If the customer does not return the hardware after the rental period agreed upon when the contract was concluded, despite a reminder and a reasonable deadline, he owes the lessor a flat rate payment of one year's rent. The customer reserves the right to prove that the damage was less. However, the corresponding hardware remains the property of the lessor. For the rest, the obligations of the lessee from this contract continue to apply accordingly during this time.
4. The lessee's rights of retention with regard to rented hardware can only be asserted if they are based on legally established or undisputed claims and claims based on the rental agreement.

22. Fee, due date and default

1. If necessary, a monthly payment (collectively the “monthly payments”) is due, the amount of which can be found in the order confirmation.
2. Monthly payments for the relevant month are due on the 3rd working day of each month. In the first month, the monthly payments are due when the hardware and software are fully provided and are calculated pro rata for the remaining days of the month, starting on the day following the provision of the hardware and software.

23. Termination of monthly benefits

1. The monthly services can be terminated by either party with six (6) weeks' notice to the end of each quarter, but no earlier than the end of the quarter in which the hardware and software was made available for the first time.
2. At the end of the rental period in accordance with Section 16, the monthly services and payments associated with the hardware also end without the need for separate termination.
3. Each contractual partner can terminate the monthly services without notice for good cause. In particular, ReAct Now GmbH can terminate without notice if the customer
   
   • is in arrears with two monthly payments;
   • ceases payments, protests against bills of exchange and checks due to insufficient funds, applies for insolvency proceedings or initiates such proceedings against his assets, or the opening is rejected due to insufficient assets;
   • provided incorrect information when concluding the contract or withheld facts and therefore the landlord cannot be expected to continue the contract;
   • ReAct Now GmbH asserts its retention of title to the hardware.
   • despite a written warning, does not refrain from serious breaches of the contract or does not immediately remedy the consequences of such breaches of contract that have already occurred.

24. Confidentiality

1. ReAct Now GmbH and the customer mutually undertake to keep all business and trade secrets of the other side secret for an unlimited period of time and not to pass them on to third parties or to exploit them in any way. The documents, drawings and other information that the other contractual partner receives as a result of the business relationship may only be used within the scope of the respective contractual purpose.

25. Miscellaneous

1. Should individual provisions of these general terms and conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. Rather, what comes closest to the intended purpose takes the place of the void provisions.
2. Subsidiary agreements have not been made. Supplements to the contract are only effective if they are confirmed in writing.
3. The customer can only assign his rights from a business relationship with ReAct Now GmbH with the written consent of ReAct Now GmbH. The customer can only offset against claims of ReAct Now GmbH with recognized or legally established counterclaims.
   
4. The place of jurisdiction is Hamburg, to the extent permitted by law. German law applies to the exclusion of UN commercial law.