Kleiststraße 10 a-c
- hereinafter referred to as “Kiwigrid” -
As of: October 1, 2023
A General Terms and Conditions
B Special Terms and Conditions for the Use of Kiwigrid Products as Software as a Service (SaaS)
C Special Terms and Conditions for the Use of Kiwigrid Products as Platform as a Service (PaaS)
D Special Terms and Conditions for the Sale of Kiwigrid Hardware
E Special Terms and Conditions for the Provision of Services
A. General Terms and Conditions (“Terms & Conditions”)
1. Scope of Part A
1.1 Unless expressly agreed otherwise, the following General Terms and Conditions shall apply to all offers, orders, contracts, and deliveries on the basis of which Kiwigrid provides services of any kind to other companies (“Customers”) that are not consumers within the meaning of Section 13 of the German Civil Code (BGB) or other relevant statutory provisions. The Customer and Kiwigrid are each individually referred to as a “Party” and collectively as the “Parties”.
1.2 The individual parts A to E inclusive are applied in descending order (order of precedence), whereby the more specific clause shall always be preferred to the general clause on a case-by-case basis.
1.3 Conditions that conflict with, supplement, or deviate from these Terms and Conditions, in particular general terms and conditions of the Customer, shall not apply, even if Kiwigrid does not expressly object to them.
1.4 Unless otherwise agreed, these Terms and Conditions shall apply either in the version valid at the time of first conclusion of the contract with the Customer or in the version last communicated to the Customer in the context of the conclusion of a contract, insofar as this has occurred, the latter taking precedence. They shall also apply as a framework agreement for similar future contracts, without Kiwigrid having to refer to them again in each individual case.
1.5 Specific agreements made with the Customer in individual cases (including collateral agreements, supplements, amendments) shall always take precedence over these Terms and Conditions (Section 305 b BGB).
1.6 Kiwigrid’s employees are not authorized to make any deviating agreements, collateral agreements, individual warranty promises or assurances, unless they are expressly authorized to do so or are authorized to do so by virtue of their executive position, in their capacity as an authorized officer, or by general power of attorney.
1.7 If Kiwigrid also provides the Customer with services of a third party, the terms and conditions of the third party shall apply additionally with regard to those services, provided that the Customer has been able to gain knowledge of these in a reasonable manner prior to conclusion of the contract.
2. Offer, conclusion of contract
2.1 Unless explicitly stated otherwise, offers made by Kiwigrid are subject to change and are non-binding. This also applies to brochures, presentations, illustrations, drawings, product descriptions, and other documents provided to the Customer in whatever form.
2.2 The contract between the Parties shall only be concluded on Kiwigrid’s written order confirmation of the Customer’s order (“Individual Contract”). The written order confirmation from Kiwigrid is definitive for the type, scope, and time of the contractual performance.
2.3 Information provided by Kiwigrid about the content of its services in brochures, presentations, illustrations, drawings, product descriptions, or other documents that become the subject matter of the contract are not warranted characteristics, but only descriptions and identifications of the subject matter of the contract.
Deviations from such data and properties, in particular with regard to technical data, dimensions, designs, performance characteristics, load-bearing capacity, condition, illustrations, drawings, and other significant features are in accordance with the contract if use for the contractual purpose is not restricted and the deviations are reasonable for the Customer to accept. Kiwigrid reserves the right to make such deviations without prior notice, including during the delivery period.
3. Change requests
3.1 If there is to be a deviation from the contractually agreed scope of services, this constitutes a change in the scope of services (“Change Request”). Both parties can propose a Change Request. The Customer shall communicate such a Change Request to Kiwigrid in text form, with a detailed description of the required change in the service in sufficient detail for Kiwigrid to be able to assess the Change Request with regard to its content, design, and technical effects on the existing scope of the service.
3.2 On receipt of the Change Request, Kiwigrid shall inform the Customer in text form of the costs that would be incurred by the Customer for its assessment of the Change Request with regard to feasibility, time, and costs for the Customer. The Customer shall then confirm in text form whether it wants to commission such an assessment of the Change Request on the basis of the cost estimate.
3.3 If the Customer then decides not to request an assessment of the Change Request, the original scope of services shall remain the same.
3.4 After carrying out an assessment, Kiwigrid shall send the results to the Customer in text form as a supplementary offer. The Customer shall notify Kiwigrid within five (5) business days whether or not it wishes to implement the Change Request based on the supplementary offer prepared by Kiwigrid.
3.5 On the basis of the supplementary offer, the Parties shall reach a mutual agreement about the effect on the course of the project/service. During this time, Kiwigrid shall continue to perform the original scope of services, unless the Parties have agreed otherwise.
3.6 Both the time Kiwigrid needed to assess the Change Request and the additional time needed to implement the Change Request shall be added to the deadlines originally agreed.
4. Prices; Price changes; Terms of payment; Default provisions
4.1 All prices are net ex works (EXW) in euros, unless agreed otherwise.
4.2 Accordingly, all prices are exclusive of VAT and ancillary costs (in particular postage, freight, packaging, insurance, travel costs, subsistence, and accommodation expenses). In the case of delivery or performance of service across borders, the Customer shall bear any customs duties, fees, and other levies incurred. The Customer shall handle all legal and official procedures in connection with cross-border deliveries or services independently, unless expressly agreed otherwise. A separate charge shall be made for additional or special services.
4.3 Unless otherwise agreed, services to be invoiced on a time and material basis shall be invoiced in accordance with the prices stated in Kiwigrid’s order confirmation.
4.4 Invoices are due for payment and payable without any deductions within 14 days of receipt of the invoice and provision of the service or, if acceptance of the service is required, after this has taken place, unless agreed otherwise in writing. The date of receipt by Kiwigrid is definitive as the date of payment.. Kiwigrid reserves the right to reduce the term of payment or to demand other safeguards, e.g. agreement of advance payments, trade credit insurance or bank guarantees, should there be doubts about the creditworthiness of the Customer after internal review.
4.5 A single copy of the invoice shall be sent to the invoice address stated in the order confirmation with a separate statement of the statutory value added tax applicable at the time of performance. Part payments or installments already made shall be shown individually on the invoice. It shall be ensured that all invoices and credit notes include the information required by Sections 14, 14a of the German Value Added Tax Act (UStG) in full.
4.6 Project-related travel time and costs shall be invoiced to the Customer in accordance with the contractual agreements. The Customer shall agree to project-related travel in advance in text form.
4.7 The Customer’s payment obligation shall remain unaffected if a loss of the subject matter of the contract for which Kiwigrid is not responsible occurs or has occurred after the transfer of risk to the Customer.
4.8 If payment is not made within the payment period (see Section 4.4), the Customer shall be in default. Kiwigrid shall then be entitled to charge statutory interest at the rate of nine (9) percentage points per annum above the base interest rate from the relevant date. Kiwigrid reserves the right to claim further damages.
4.9 If the Customer is more than three (3) weeks in arrears with a payment or if doubts arise as to its solvency for any other reason, Kiwigrid shall be entitled to demand the provision of securities for all other claims and to perform outstanding deliveries only in return for advance payments or securities.
4.10 The Customer shall only be entitled to rights of set-off or retention to the extent that its claim has been legally established or is undisputed. The exercise of a right of retention by the Customer requires that the counterclaim originates from the same Individual Contract.
4.11 In the event that the Customer does not call for the ordered services for a period in excess of four (4) months from receipt of the order, Kiwigrid shall be entitled to recalculate the prices in order to adjust them to changing market conditions, procurement costs, or VAT. In the event of price increases in excess of ten (10) percentage points, the Customer may terminate the Individual Contract in writing with a notice period of 30 days from notification of the price increase. The right of termination shall expire and the price increase shall be deemed to have been approved if the Customer does not exercise its right of termination within the specified period.
4.12 In case of economic incapacity of the Customer to fulfill its obligations vis-à-vis Kiwigrid, Kiwigrid may terminate existing exchange contracts with the Customer by rescission and continuing obligations by termination without notice, to the extent permitted by law. The Customer shall inform Kiwigrid of this in writing in good time.
5. Cooperation obligations of the Customer; Subcontractors
5.1 The following obligations to cooperate are primary obligations of the Customer and shall not be classified solely as secondary obligations or duties.
5.2 The Customer shall cooperate with Kiwigrid without undue delay and to a reasonable extent, be prepared to answer questions and provide the necessary information, make expert staff, means of communication and connections available, and provide access to hardware, software, and premises, if this is necessary for the performance of the agreed contractual services.
5.3 The Customer is obliged to ensure that the technical requirements for the safe use of Kiwigrid's services and products are in place. Provision of an internet connection with sufficient bandwidth and latency is the responsibility of the Customer.
5.4 On request, the Customer shall provide Kiwigrid with reasonable support in assessing and asserting claims against other parties in connection with the provision of the service. This applies in particular to recourse claims by Kiwigrid against upstream suppliers.
5.5 All cooperation services shall be provided to Kiwigrid free of charge, in full, on time, and in the agreed manner.
5.6 If the Customer defaults on performance of the actions for which it is responsible, Kiwigrid shall notify the Customer of this without undue delay and set a reasonable deadline for the action. On expiry of the deadline set, Kiwigrid’s performance obligation for a service which cannot be provided without this action or can only be provided with disproportionate additional effort shall be suspended for the duration of the delay. The additional expenses caused by this shall be reimbursed to Kiwigrid in addition to the remuneration. A legal right of termination by Kiwigrid remains unaffected.
5.7 Kiwigrid may use subcontractors and/or freelancers for the provision of services without the prior consent of the Customer, unless there is a reason recognizable to Kiwigrid which makes such assignment unreasonable for the Customer to accept. If Kiwigrid uses subcontractors, Kiwigrid shall be liable for them as for its own vicarious agent (Section 278 BGB).
6. Delivery; Delay in delivery; Disruptions to the provision of services
6.1 Unless otherwise agreed in the respective Individual Contract, the delivery dates and deadlines specified by Kiwigrid are non-binding.
6.2 Fixed performance dates shall be agreed exclusively in an expressly documented form. The agreement of a fixed performance date is subject to the proviso that Kiwigrid receives the services of its respective upstream suppliers on time and according to contract.
6.3 If no other agreement is made in writing, the place of performance shall be the registered office of Kiwigrid.
6.4 Unless otherwise agreed, all deliveries shall be made at the Customer’s risk from the respective distribution warehouse with handover to the carrier at the domestic delivery address specified in the order.
Kiwigrid shall only be entitled to make partial deliveries if
a) the partial delivery is usable for the Customer within the scope of the contractually intended purpose,
b) the delivery of the remaining ordered goods is ensured and
c) the Customer does not incur any significant additional expenses or costs as a result (unless Kiwigrid agrees to meet those costs).
6.5 Kiwigrid shall not be liable for impossibility of delivery or for delays in delivery insofar as these have been caused by force majeure within the meaning of Section 17 or other events not foreseeable at the time of conclusion of the contract, or by events for which – insofar as they could have been foreseen – Kiwigrid is not responsible (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, or the failure of suppliers to deliver or to deliver correctly or on time). If such events make the delivery or service significantly more difficult or impossible for Kiwigrid and the hindrance is not only of temporary duration, Kiwigrid is entitled to extraordinary termination of the Individual Contract.
6.6 In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or postponed by the period of the hindrance plus a reasonable start-up period. Kiwigrid shall inform the Customer immediately in the event of delivery delays. Insofar as the Customer cannot reasonably be expected to accept the delivery or service as a result of the delay, the parties shall negotiate the continuation of the contractual relationship in order to bring about a solution that is acceptable to both Parties.
7. Acceptance of services under a contract for work and services
7.1 In the event of an order for a service under a contract for work and services, Kiwigrid shall make the work produced in accordance with the contract available for acceptance within a reasonable period of at least fourteen (14) working days to be set by Kiwigrid. If the Customer does not accept the work after it has been made available for a reason other than a defect, the work shall be deemed to have been accepted on expiry of the acceptance period (Section 640(2) BGB). Use of the work by the Customer, whether in whole or in part, shall be deemed to constitute acceptance. Section 640 BGB remains unaffected.
7.2 The above provision shall also apply to partial orders which are accepted separately as agreed by the Parties and to individual parts of a work which are intended to work together under the contract, provided that separate acceptance dates have been agreed for these (partial acceptances). In this case the Customer shall receive work documents relevant to the progress of the work that serve as information about the respective project status.
7.3 Kiwigrid shall make the agreed service available to the Customer for acceptance on the agreed date and shall request the Customer to accept it in text form. To the extent possible, Kiwigrid shall give at least five (5) business days’ advance notice that it is available for acceptance. The Customer shall declare acceptance in text form within ten (10) working days of provision if the service provided essentially complies with the specifications customary in the market and contractually agreed.
Clauses 9 and 10 apply accordingly to liability for defects.
7.4 The acceptance process shall be carried out immediately and acceptance shall be confirmed in text form. Any complaints shall be recorded in the acceptance report. Minor defects that do not affect functioning shall not constitute grounds for refusal of acceptance. The same applies to formal faults; these shall be eliminated immediately by Kiwigrid.
7.5 If acceptance is excluded due to the nature of the work, completion of the work shall take its place.
8. Reservation of the right to make amendments
8.1 Kiwigrid shall have the right to amend these Terms and Conditions at any time or to add provisions for the use of any newly introduced additional services, products, or functions. The Customer shall receive notification of the amendments and additions to the Terms and Conditions by email to the email address provided by the Customer no later than four (4) weeks before the planned effective date. The Customer’s consent to the amendment of the Terms and Conditions shall be deemed to have been given if the Customer does not object to the amendment in text form (e.g. by letter, fax, email) within a period of two (2) weeks, commencing on the day following the aforementioned notification of amendment. Kiwigrid undertakes to make specific reference in the amendment notification to the possibility of objection, the deadline for objection, the text form requirement and the significance or consequences of failure to object.
8.2 Amendments to these Terms and Conditions shall be made in text form. This also applies to any waiver of the requirement of text form itself.
8.3 Kiwigrid is entitled to make service and product changes (including on the software side), provided that Kiwigrid has a legitimate interest in the service and product change. A legitimate interest of Kiwigrid exists in particular
a) if the service and product change is necessary to bring the services and products offered by Kiwigrid into compliance with the law applicable to that service, in particular if the legal situation changes;
b) if changes or further developments are required to adapt the product portfolio to a new product policy;
c) if changes or further developments are required to adapt to the latest state of the art;
d) if, in doing so, Kiwigrid is complying with a court or administrative order issued to Kiwigrid;
e) if it is necessary to eliminate security vulnerabilities in the software;
f) because the services or contractual conditions of third-party providers (e.g. for integrations) or subcontractors (e.g. for additional functions) change significantly, or
g) if it is predominantly advantageous for the Customer.
8.4 In this context, Kiwigrid reserves the right in particular to restrict or terminate the provision of additional functions or integrations if the technical partners for the additional functions or integrations or the providers of third-party systems significantly restrict or change their services or service conditions and further provision is therefore no longer reasonable for Kiwigrid, e.g. because the additional effort required of Kiwigrid is disproportionately high. In the case of quarterly billing, the Customer shall in this case receive an appropriate pro rata refund of fees paid in advance, provided that the additional function or integration was invoiced separately.
8.5 If products can or should no longer be developed and/or offered by Kiwigrid and none of the conditions under Section 8.3 obtains,
a) Kiwigrid shall generally notify the Customer of the discontinuation at least twelve (12) months in advance;
b) Kiwigrid may notify the Customer with a shorter notice period of at least three (3) months, if and to the extent that this is absolutely necessary because, for example, an upstream supplier goes out of business without Kiwigrid having prior warning and compliance with the period of twelve (12) months would only be possible for Kiwigrid at disproportionate cost;
c) if it notifies the Customer with the shorter notice period of three (3) months, Kiwigrid shall inform the Customer of the compelling reasons for this and explain why compliance with the period of twelve (12) months would entail disproportionate costs,
and the Customer’s claims to the relevant service shall lapse accordingly. The Customer shall receive a reasonable, pro rata refund for any remuneration paid in advance for a product that has been discontinued.
8.6 If the service or product change is significant and the continuation of the contract is therefore difficult for the Customer to accept or the Customer objects in due form and time as defined in Section 8.1, the contractual relationship shall be continued under the conditions applicable until the respective change. In this case, Kiwigrid reserves the right of extraordinary termination. Significant changes are changes that result in a significant reduction in function or integration compared to the previous version of the product in question (including software).
8.7 In addition to Section 4.11, Kiwigrid is entitled to adjust the prices for the (chargeable) contractually agreed services annually by an appropriate amount to compensate for increases in personnel and other costs. Kiwigrid shall notify the Customer of this price adjustment and the effective date of the price adjustment in text form. The price adjustments do not apply to the periods for which the Customer has already made payments. In this case, the objection and termination provisions under Section 4.11 shall apply.
9. Material defects; Limitation period; Reimbursement of expenses
9.1 Kiwigrid only provides a guarantee for the quality of the services due under the Individual Contract.
9.2 The Customer shall report defects in writing immediately on becoming aware of them in a comprehensible and detailed form, stating all information useful for the detection and analysis of the defect. A description of the work steps that led to the occurrence of the defect and of the appearance and effects of the defect is particularly important in this context. Unless otherwise agreed, the corresponding forms or the error reporting tool provided by Kiwigrid as described under Section 5, Part B (Special Terms and Conditions for the Use of Kiwigrid Products as Software as a Service (SaaS)) shall be used for this purpose. If the Customer does not fulfill this notification obligation, the warranty claims shall be limited if and to the extent that timely notification could have accelerated the rectification of the defect or prevented damage. In addition, the commercial duty of inspection and notification of defects (Section 377 of the German Commercial Code (HGB)) shall apply.
9.3 As far as possible, Kiwigrid shall rectify defects without delay. If immediate rectification of the defect is not possible for valid reasons, Kiwigrid shall rectify the defect within a reasonable period of time on a case-by-case basis. If the defect cannot be rectified after extensive inspection, Section 439(4) BGB shall apply.
9.4 Claims for defects shall also not exist in the event of excessive or improper use, natural wear and tear, failure of components of the Customer’s system environment, software errors that cannot be reproduced or otherwise proven by the Customer, or in the event of damage that occurs due to special external factors that are not covered under the Individual Contract. This also applies in the event of subsequent modification or repair by the Customer or by third parties, except where this does not complicate the analysis and rectification of a material defect.
Section 11 also applies to claims for damages and reimbursement of expenses.
9.5 The limitation period for claims for material defects is one (1) year from delivery or, if acceptance is required, from acceptance. The statutory deadlines for recourse set out in Section 478 BGB remain unaffected. The same applies where the law prescribes longer deadlines pursuant to Section 438(1) no. 2 or Section 634 a(1) no. 2 BGB, in the event of intentional or grossly negligent breach of obligation by Kiwigrid, fraudulent concealment of a defect, and in cases of injury to life, limb or health and claims under the German Product Liability Act.
9.6 Processing of a report of a material defect from the Customer by Kiwigrid shall lead to the suspension of the limitation period only insofar as the legal requirements for this are met. This shall not result in the limitation period beginning again from the start.
9.7 Kiwigrid may determine the type of supplementary performance at its own discretion. As part of rectification of the defect, Kiwigrid may provide a workaround solution to the extent and as long as this is reasonable for the Customer. Supplementary performance (new delivery or rectification of defects) can only have an influence on the limitation period of the defect triggering the supplementary performance.
9.8 Claims under a right of recourse in the case of contracts for digital products pursuant to Section 327 u BGB remain unaffected.
9.9 Kiwigrid may demand compensation for its expenses if
a) it acts on a report without there being a defect, unless the Customer could not have recognized that there was no defect with reasonable effort, or
b) a reported malfunction is not reproducible or otherwise provable by the Customer as a defect, or
c) additional expenses are incurred due to the Customer’s failure to fulfill its obligations to cooperate properly.
10. Third-party rights, defects of title
10.1 Kiwigrid shall be liable for infringements of third-party rights by performance of its service only to the extent that the service is used in accordance with the contract and in particular in the contractually agreed environment of use without modification.
10.2 Kiwigrid is liable for infringements of third-party rights only within the European Union and the European Economic Area and at the place of contractual use of the service. Section 9.1 sentence 1 applies accordingly.
10.3 If a third party asserts vis-à-vis the Customer that a service provided by Kiwigrid infringes its rights, the Customer shall notify Kiwigrid immediately. Kiwigrid and, if applicable, its upstream suppliers are entitled, but not obliged, to defend the asserted claims at their own expense to the extent permissible.
10.4 The Customer shall not be entitled to acknowledge or settle any third-party claims before it has given Kiwigrid reasonable opportunity to defend the claims regarding third-party rights by other means.
10.5 If the rights of third parties are infringed by a service provided by Kiwigrid, Kiwigrid shall, at its own discretion and at its own expense,
a) provide the Customer with the right to use the service or
b) make the service legally compliant or
c) take back the service with reimbursement of the remuneration paid for it by the Customer (less reasonable compensation for use) if Kiwigrid cannot achieve any other remedy with reasonable effort.
The interests of the Customer shall be taken into account adequately.
10.6 Claims of the Customer due to defects of title shall expire in accordance with Section 9.5. Clause 11 shall apply additionally to claims for damages and reimbursement of expenses by the Customer, and Section 9.9 shall apply accordingly to additional expenses incurred by Kiwigrid.
11.1 Kiwigrid shall always be liable vis-à-vis the Customer
a) or damage caused intentionally or by gross negligence,
b) for damage caused intentionally or negligently resulting from injury to life, limb, or health, and
c) or product liability damage in accordance with the provisions of the Product Liability Act.
11.2 Kiwigrid shall not be liable in the event of minor negligence, unless it involves a breach of material contractual obligations, the fulfillment of which is a prerequisite for the proper execution of the contract or the breach of which jeopardizes the achievement of the purpose of the contract and on the observance of which the Customer may normally rely.
11.3 Notwithstanding Sections 11.1 and 11.2, Kiwigrid’s liability for all property damage and financial loss shall be limited to the foreseeable damage typical for the contract. This also applies to lost profits and savings that are not made. Compensation can also only be provided for indirect damage and consequential damage that is the result of defects in the delivery item insofar as such damage is typically expected when the delivery item is used as intended. Liability for other remote consequential damages is excluded.
11.4 The above exclusions and limitations of liability apply to the same extent in favor of Kiwigrid’s executive bodies, legal representatives, employees, and other vicarious agents.
11.5 Insofar as Kiwigrid provides technical information or acts in an advisory capacity and the information or advice is not part of the contractually agreed scope of services due from it, this shall be offered free of charge and, subject to the provisions of Section 11.1, with exclusion of any liability.
11.6 If warranty declarations are made, they shall require a separate written agreement, which shall be attached to the Individual Contract as an annex. The use of terms such as guarantee, assurance or warranted quality does not in itself constitute a guarantee within the meaning of the BGB, but is to be understood exclusively as a description of the service.
11.7 Subject to the provisions of Section 11.1, Kiwigrid’s liability for lost profits and unrealizable savings is excluded.
12.1 Confidential information is any information which is available or provided to one of the Parties, irrespective of the execution of the Individual Contract, and which is known or becomes known to the other Party during execution of the Individual Contract, including information about the contractual relationship between the Parties themselves. How the information is made available or becomes known is not relevant. Confidential information also includes business and trade secrets and information that a reasonable third party would consider worthy of protection or that is marked as “Confidential”. This may include information that becomes known during an oral presentation or discussion.
12.2 The Parties are obliged not to disclose confidential information or pass it on or make it accessible to unauthorized third parties. The confidential information of one of the Parties may be used by the other Party exclusively for internal purposes. Information which is or will be marked as “Confidential” or in a similar manner by one Party may only be used by the other Party for the purpose of executing the Individual Contract.
12.3 The obligation to maintain confidentiality does not apply to information that is already lawfully known to the Parties or becomes known outside the contract without violating any confidentiality obligation. In maintaining confidentiality, the Parties shall exercise the same care – and at least a reasonable degree of care – as it would exercise in handling its own information of similar importance.
12.4 Reverse engineering (Section 3(1) no. 2 of the German Business Secrets Act (GeschGehG)) is not permitted. The Parties are therefore not entitled to open, observe, disassemble, or perform reverse engineering on received samples, products, etc. or to disassemble or decompile software or translate it into another form of code, unless regulated otherwise.
12.5 Such information may only be disclosed to persons who are not involved in the conclusion, performance, or execution of the contract with the written consent of the other contracting Party.
12.6 Unless otherwise agreed, this obligation ends five years after the information became known, but in the case of continuing obligations, not before they are terminated.
12.7 The Customer shall also impose these obligations on its employees and any third parties engaged.
13. Copyright for Kiwigrid documents; Contractual penalty
13.1 All documents, in particular drawings, illustrations, calculations, drafts, brochures, catalogs, models, assembly, instruction and construction documents and the design and concept description are and shall remain the intellectual property of Kiwigrid. The Customer may not copy the resulting documents, use them itself, or pass them on to third parties without consent. It is also not entitled to create replicas using such documents, unless otherwise agreed.
13.2 If the Customer violates the obligations under Sections 12 and 13.1, it shall pay Kiwigrid a contractual penalty to be determined at Kiwigrid’s reasonable discretion and reviewed by the competent court in the event of a dispute, unless it is not responsible for the breach of obligation. The contractual penalty shall be offset against any claim for damages. Further claims, in particular for omission, remain unaffected.
14. Data protection
14.1 Within the scope of the contract and the use of Kiwigrid’s products, the Customer shall strictly observe the data protection obligations incumbent upon it, in particular those of the GDPR and the German Federal Data Protection Act (BDSG). Insofar as the Customer transmits personal data to Kiwigrid by way of executing the contract or using the service, the Customer shall be responsible for obtaining the appropriate transmission authority.
14.2 Insofar as Kiwigrid has access to personal data of the Customer or processes such data for the purpose of providing the contractual services, Kiwigrid shall only act in accordance with the instructions given within the scope of the Customer’s commissioned data processing. The rights and obligations of the Parties within the framework of this commissioned data processing shall be set out in a corresponding agreement in accordance with Art. 28 GDPR.
14.3 In the event of data processing for which the Parties are jointly responsible, the rights and obligations of the Parties shall be governed by an agreement pursuant to Art. 26 GDPR.
14.4 The Customer remains the responsible party both generally in the contractual relationship and as the controller in terms of data protection law. The Customer shall indemnify Kiwigrid against all claims, official measures, and sanctions in connection with the processing of personal data to the extent that Kiwigrid is not responsible for the data processing. This shall not apply if Kiwigrid is solely responsible for the unauthorized processing and has carried out the processing contrary to the instructions of the Customer. The liability of the Customer includes reimbursement of reasonable costs for legal defense. All other claims and rights of Kiwigrid remain unaffected.
14.5 Kiwigrid guarantees that data of the Customer is stored exclusively in the territory of the Federal Republic of Germany, in a member state of the European Union, in another state party to the Agreement on the European Economic Area, or in a state in which a level of data protection comparable to that of the European Union is guaranteed and a corresponding adequacy decision exists, unless otherwise agreed.
14.6 The obligations under Sections 14.1 to 14.5 shall continue to exist as long as data is within Kiwigrid’s sphere of influence, even beyond the end of the Individual Contract.
15. Export conditions
15.1 Kiwigrid’s products may be subject to the relevant export regulations of the United States of America, the European Union and/or the Federal Republic of Germany. In the event of a possible re-export of the products, the Customer undertakes to comply with all relevant national and international export regulations and, if necessary, to obtain the necessary permits.
15.2 In the event of a breach of these obligations, the Customer shall indemnify Kiwigrid against all claims and compensate Kiwigrid for any damages asserted against Kiwigrid by the supplier or licensor, third parties, or governmental and/or international authorities or organizations.
15.3 The Customer shall inform its contractual partners in writing of the export regulations.
16. Principles of conduct and loyalty
16.1 Kiwigrid and the Customer agree as follows:
h) We respect and support the United Nations Universal Declaration of Human Rights and use our influence to prevent human rights violations from occurring.
i) We respect and support the core labor standards of the International Labor Organization (ILO). We put diversity and equal treatment into practice irrespective of gender, marital status, ethnic origin, nationality, age, religion, sexual orientation, or physical or mental disability. We uphold freedom of association and recognize the right to collective bargaining. We strive for occupational and plant safety and for protection of health of the highest level.
j) We are committed to the responsible use of natural resources and promote the use of environmentally friendly technologies.
k) We support free competition and transparent markets and fight against unfair competition and restrictions on competition. When dealing with company information, we comply with the national and international capital market regulations.
l) We ensure careful handling of personal data.
m) We are committed to protecting the trade secrets and intellectual property of others.
n) We comply with the legislation and procedures for levying taxes, granting subsidies, and awarding public contracts.
o) We do not tolerate corruption and take all necessary and appropriate measures to prevent it. Conflicts of employees’ private interests and the company’s interests are to be avoided. We take care to ensure that no undue political influence is exercised.
p) We comply with applicable national and international sanctions and embargo regulations and other restrictions on foreign trade law.
q) We take all necessary and reasonable measures to prevent money laundering involving the proceeds of crime.
16.2 The Parties shall refrain from making critical or disparaging comments about the other Party to third parties, in particular with regard to organizational processes, technical issues, or the like. This shall also apply for a period of two (2) years after the termination of an Individual Contract.
17. Force majeure
17.1 Neither Kiwigrid nor the Customer shall be liable for any breach of their respective obligations if and to the extent that the breach is due to force majeure. To this extent, the Parties are released from the contractual obligation in question. Force majeure shall be deemed to exist in the case of external events that are unforeseeable or cannot be averted by exercising reasonable care. This may be the case, for example, if the fulfillment of the contractual obligation is not possible due to fire, flood, earthquake, explosion, acts of nature, acts of war, terrorism, riots, epidemics, pandemics, officially ordered quarantine measures, unforeseeable import and export bans, general disruptions of telecommunications or energy supply, strikes, lockouts, or other comparable events or circumstances that are beyond the reasonably expected sphere of influence of the Party affected.
17.2 The Parties shall immediately inform each other in text form of the existence of an event of force majeure and of when it comes to an end.
17.3 In cases of force majeure, the service provider shall be entitled to postpone the provision of the affected service for the duration of the impediment plus a reasonable start-up period. Agreed performance and payment dates shall be postponed accordingly.
17.4 If the performance impaired by the force majeure cannot be restored due to a postponement of the deadline pursuant to Section 17.3, the Parties shall negotiate a realignment of the execution of the contract with the aim of adhering to the provisions or the intention of the Individual Contract. In doing so, the Parties shall examine in particular whether the part of performance that is impossible or delayed due to force majeure can be provided by the affected Party by other means.
17.5 The provisions of this clause do not apply to the breach of any obligation to pay monetary debts.
17.6 Unless otherwise agreed, warranty promises of the provider are also covered by this force majeure clause.
18. Final provisions
18.1 A waiver of rights, claims, or formal requirements in individual cases and even in repeated cases does not imply a waiver in this respect for the future.
18.2 Place of performance for all liabilities is Dresden.
18.3 If the Customer is a merchant, a legal entity under public law or a special fund under public law and to the extent permitted by law, the place of jurisdiction shall be Dresden. However, Kiwigrid is entitled to take action against the Customer at the generally applicable place of jurisdiction.
18.4 Should a clause in an Individual Contractual agreement be or become invalid in whole or in part, the Parties undertake to agree on a provision that corresponds to the intended economic purpose. This shall also apply mutatis mutandis in the event of a loophole in the regulations or a change in the law. The validity of the remaining provisions is not affected.
18.5 The legal relationship between Kiwigrid and the Customer shall be governed by German law, excluding the UN Convention on Contracts for the International Sale of Goods.
B. Special Terms and Conditions for the Use of Kiwigrid Products as ‘Software as a Service’ (“SaaS”)
1. Scope of Part B
1.1 Kiwigrid is a platform provider and enables its customers to network energy generators, consumers, storage, and e-mobility in the smart grid.
1.2 These SaaS Terms and Conditions govern the Customer’s use of the Kiwigrid products provided by Kiwigrid in its area of control (from the data center interface to the internet) as SaaS. In addition, the general regulations of Part A of the Terms and Conditions apply.
2. Services covered by the contract
2.1 The contractual services are software products offered by Kiwigrid, in particular Kiwigrid applications and Kiwigrid services (“Kiwigrid Products”). The scope of services, the nature, purpose, and operating conditions of the contractual SaaS services result from the respective product descriptions.
2.2 The Kiwigrid Products may only be used by the Customer and only for the purposes agreed in the Individual Contract. During the term of the Individual Contract, the Customer may access the Kiwigrid Products via the internet and by means of supported browsers or another suitable application (e.g. an app) and may use the functions associated with the software in accordance with the contract.
2.3 Additional services, such as the development of customized solutions or necessary adjustments, require a separate Individual Contract.
3. Scope of use and rights
3.1 For the duration of the Individual Contract, Kiwigrid shall grant the Customer the simple option to use the current version of the commissioned Kiwigrid Products via internet access within the framework of SaaS. The Customer may pass on the usage option granted to it to its customers (“End Customers”) and to authorized installation partners (“Installers”), and grant the End Customers and Installers usage rights to the extent described in Section 3.3.
3.2 The Customer may operate on the market as a provider of the Kiwigrid Products on the Kiwigrid platform (“white label"). In this case and for this purpose, the Customer shall be granted, in accordance with and for the duration of the Individual Contract, the simple right to have Kiwigrid’s white label products provided with its own brand (“Branding”) by agreement and to offer the products under this to its End Customers and Installers.
Passing on the usage option by way of a sublicense to B2B customers of the Customer is only permitted with the prior written consent of Kiwigrid and requires a corresponding reseller agreement between the Parties.
3.3 Kiwigrid shall set up a Customer client (account) on the backend of the Kiwigrid platform (“KiwiOS.cloud”) for the Customer and operate it on the Customer’s behalf for the duration of the Individual Contract. Kiwigrid (or a third party authorized by Kiwigrid) shall provide the computing power and data storage required for the use of the Customer client and the commissioned Kiwigrid Products.
The following services shall be provided by Kiwigrid:
a) Hosting, operation, and maintenance of KiwiOS.cloud;
b) Provision, operation, and maintenance of the commissioned Kiwigrid Products in the established Customer client of KiwiOS.cloud;
c) Storage of data arising from operation and use for and on behalf of the Customer.
3.4 The Customer may use the commissioned Kiwigrid Products on the established Customer client within the scope of the non-exclusive right of use granted to it by Kiwigrid for its own contractual purposes and by its own personnel, process, and store its data. Insofar as the Customer passes on the usage options granted to it to End Customers or Installers, they may only use the Kiwigrid Products for the contractual purposes of the respective End Customer and may only process and store their data.
3.5 The Customer client set up for the Customer on KiwiOS.cloud is protected against unauthorized access by third parties. Kiwigrid shall transmit the access data required for the use of the Customer client to the Customer for identification and authentication. The Customer is not permitted to provide the access data to unauthorized third parties. If the Customer becomes aware that access data, the Customer client, or the KiwiOS.cloud has been accessed without authorization, it shall inform Kiwigrid immediately in text or written form and change the relevant access data or have it changed. If Kiwigrid suspects on the basis of actual evidence that access data is being misused or used in breach of contract, Kiwigrid may block and replace the access data. Kiwigrid shall take reasonable account of the Customer’s legitimate interests in this context. Kiwigrid’s rights to withhold performance remain unaffected.
3.6 The software of the Kiwigrid Products, in particular KiwiOS.cloud, shall not be transferred to the Customer; the Customer may not make any changes to this software, except within the permitted scope of Section 69d of the German Copyright Act (UrhG), insofar as this is applicable at all to the contractual services agreed here.
3.7 Kiwigrid is obliged to grant the usage option only to the current version of the Kiwigrid Products. Bug fixes are provided only on the basis of the current version. Kiwigrid may update and otherwise reasonably change the Kiwigrid Products at any time during the term of the Individual Contract without the Customer’s separate consent, in particular in order to adapt to changes in the legal situation, technical developments, or to improve functions or IT security. Kiwigrid shall take reasonable account of the Customer's legitimate interests in this respect and shall provide at least the functions promised in the relevant product description during the term of the Individual Contract.
3.8 Access of the Customer, the End Customers, and the Installers to the internet is not the subject of this contractual relationship. These Parties are solely responsible for the functionality of their internet access, including the transmission channels and their own computer.
4. Cooperation obligations of the Customer
4.1 In addition to the cooperation obligations under General Part A of the Terms and Conditions, the Customer shall:
a) neither give unauthorized third parties access to the Kiwigrid Products, in particular to the KiwiOS.cloud, nor allow retrieval of information stored there, nor interfere with Kiwigrid’s programs, nor penetrate Kiwigrid’s data network, or promote such interference;
b) keep the usage and access authorizations assigned to it and/or the user secret, protect them from access by unauthorized third parties, and not pass them on to unauthorized users;
c) place all authorized users under an obligation to comply with the provisions agreed here;
d) respect third-party rights to documents or works used (e.g. when uploading texts or data to the Kiwigrid platform that originate from third parties or contain third-party data) and not upload any illegal content or use the contractual services to process such content (in particular, it shall not upload any racist, discriminatory or pornographic content, content that endangers the protection of minors, politically extreme material, or other prohibited content to Kiwigrid’s servers);
e) check data and information for viruses before transmitting it to Kiwigrid and use state-of-the-art software;
f) not misuse the Kiwigrid platform or parts of it for sending unsolicited messages or information to third parties for advertising purposes or other purposes that do not comply with the law.
4.2 For the successful setup of a Customer client on KiwiOS.cloud and Branding of that Customer client and of the Kiwigrid Products ordered, the Customer shall in particular provide the following content in good time:
a) contribution to the Kiwigrid style guides including standard color set;
b) logo as *.svg file or vector graphic or *.png file;
c) fonts including all necessary usage rights that allow Kiwigrid to use the font for Kiwigrid Products;
e) service contact information;
f) if requested: target domain/certificates.
Change Requests after the client setup has been completed shall be handled in accordance with the provisions of Section 3 of General Part A of the Terms and Conditions (Change requests).
5. Fault reporting procedure
5.1 The Customer shall notify Kiwigrid immediately of any faults that occur in the contractual services. For this purpose, Kiwigrid shall provide the Customer with access to a fault reporting tool. The Customer shall use the fault reporting tool provided by Kiwigrid.
5.2 In particular, a fault exists if the KiwiOS.cloud or parts of it do not fulfill the functions specified in the product description, deliver incorrect results, interrupt the program run in an uncontrolled manner or do not function properly in any other way, and Kiwigrid is responsible for this, so that the use of the KiwiOS.cloud or parts of it is not possible.
5.3 When reporting a fault under the fault reporting procedure, the Customer shall ensure compliance with the following as a minimum:
a) Person reporting the fault and recipient of the fault message are clearly identified.
b) The type of fault message must be coordinated in such a way that a reported fault is reproducible for the Customer and/or Kiwigrid: A clear description of the fault, the date of occurrence, framework conditions in which the fault occurs, screenshots where necessary.
6. Availability and services
The availability of the services provided, the services covered by the contract, and individual service levels are based on Kiwigrid’s order confirmation together with the product description and the applicable Service Level Agreement.
7.1 Defects in the software of the Kiwigrid Products shall be remedied by Kiwigrid in accordance with the provisions in the applicable Service Level Agreement after appropriate reporting of the fault by the Customer or awareness of the defect by Kiwigrid. The same applies to other disruptions to the availability for use of the KiwiOS.cloud.
7.2 The Customer’s right to terminate the contract for failure to grant use in accordance with Section 543(2) sentence 1 no. 1 BGB is excluded, unless the transfer of the contractual use of the Kiwigrid Products is to be regarded as having failed permanently.
7.3 If the respective Kiwigrid Product is used with an integrated Kiwigrid Energy Manager, Kiwigrid may also rectify the fault by providing a software update as defined in Section 7 of the operating software of the Energy Manager, which resolves the fault. For this purpose, the Customer shall connect the Energy Managers supplied to the internet and support the update to the extent specified by Kiwigrid. Kiwigrid is released from the warranty for as long as the Customer fails to establish the internet connection for an update or does not support the update to the extent required. In case of failure of the rectification or replacement delivery by Kiwigrid, i.e. impossibility, unreasonableness, refusal, or unreasonable delay of the rectification or replacement delivery, the Customer may withdraw from the Individual Contract or reduce the purchase price by a reasonable amount.
7.4 In the event of an only insignificant reduction in the suitability of the services for the contractual use (minor fault), the Customer shall have no right to claim for faults.
7.5 Strict liability according to Section 536 a BGB is excluded for each of the Parties insofar as the services are contractual services of software rental within the framework of SaaS. This exclusion of liability does not apply in the event of a breach of material contractual obligations or damage caused intentionally or negligently involving injury to life, limb or health by the Party concerned.
7.6 § 578 b BGB remains unaffected.
8.1 Charges for recurring SaaS services are made from the calendar quarter of the first activation of the respective Energy Manager. Each Energy Manager that was activated in the respective billing period (calendar quarter as defined in Section 8.2) shall be deemed to be a billable user. Each billable user may be a user of one or more SaaS products. The devices assigned to the installed Energy Manager serve as the basis for calculating the usage fees.
8.2 Kiwigrid shall issue invoices for the remuneration for the contractual product and other services on a quarterly basis, as of March 31/June 30/September 30/December 31 of the calendar year. Invoices for set-up services shall be issued after each set-up has been completed.
8.3 In all other respects, the provisions of Section 4 of General Part A of the Terms and Conditions apply.
C. Special Terms and Conditions for the Use of Kiwigrid Products as ‘Platform as a Service’ (“PaaS”)
KiwiOS.io is a platform offering various Platform-as-a-Service products. You can select these products, access information about them and request access to build your own application on top of the KiwiOS Platform.
Thank you for using Kiwigrid's KiwiOS Platform and the associated products, such as APIs, widgets, etc. (collectively, "Platform Product(s)"). By accessing or using our Platform Products, you are agreeing to the Terms below. If there is a conflict between these Terms, individual contracts and additional Terms applicable to a given Platform Product, the individual contracts and additional Terms will control for that conflict.
Collectively, we refer to the Terms below, any additional Terms, and any applicable policies and guidelines as the "Terms". You agree to comply with the Terms and that the Terms control your relationship with us. Please read all the Terms carefully. If you use the Platform Products as an interface to, or in conjunction with other Kiwigrid products or services, then the Terms for those other products or services also apply.
Under the Terms, "Kiwigrid" means Kiwigrid GmbH, with their offices at Kleiststraße 10 a-c, 01129 Dresden, Germany unless set forth otherwise in additional Terms applicable for a given Platform Product. We may refer to „Kiwigrid“ as „we“, „our“, or „us“ in the Terms.
1. Account & Registration
Kiwigrid operates the KiwiOS platform and the belonging Platform Products for businesses only and does not accept consumers within the meaning of § 13 of the German Civil Code as Customers.
1.2 Entity Level Acceptance
If you are using the Platform Products on behalf of an entity, you represent and warrant that you have authority to bind that entity to the Terms and by accepting the Terms, you are doing so on behalf of that entity (and all references to “you” in the Terms refer to that entity).
In order to access certain Platform Products you may be required to provide certain information (such as identification or contact details) as part of the registration process for accessing kiwios.io, or as part of your continued use of the Platform Products. Any registration information you give to Kiwigrid will always be accurate and up to date and you’ll inform us promptly of any updates.
2. Using Our Platform Products
2.1 Fees for the use
The fees for the Platform Products are based on the respective prices agreed between Kiwigrid and you.
2.2 Compliance with Law, Third Party Rights, and Other Kiwigrid Terms and Conditions
You will comply with all applicable law, regulation, and third party rights (including without limitation laws regarding the import or export of data or software, privacy, and local laws). You will not use the Platform Products to encourage or promote illegal activity or violation of third party rights. You will not violate any of Kiwigrid’s other Terms and Conditions. You will require your end users to comply with (and not knowingly enable them to violate) applicable law, regulation, and the Terms.
2.3 Permitted Access
You will only access (or attempt to access) a Platform Product by the means described in the documentation of that Platform Product. If Kiwigrid assigns you developer credentials (e.g. client IDs, API Keys), you must use them with the applicable Platform Products. You will not misrepresent or mask either your identity or your Client’s identity when using the Platform Products.
2.4 Usage Rights
Kiwigrid hereby grants to you the timely limited to the term, non-exclusive, non-sub-licensable, revocable and non-transferable right to access the KiwiOS.io platform and use the Platform Products solely in accordance with this Terms.
You shall have no rights which are not explicitly granted to you under these Terms. You shall not be entitled to use the KiwiOS.io platform and the Platform Products beyond the scope of use granted in these Terms.
You shall not be entitled to make the KiwiOS.io platform and the Platform Products available to third parties, unless Kiwigrid agrees to this in writing in advance. In particular, it is not permitted to duplicate the KiwiOS.io platform and the Platform Products or to provide it for use for a limited period of time, in particular not to lease it or loan it.
2.5 Platform Product Limitations
Kiwigrid sets and enforces limits on your use of the Platform Products (e.g. limiting the number of API requests that you may make or the number of users you may serve), up to technical, business or security limitations. You agree to, and will not attempt to circumvent, such limitations documented with each Platform Product. In these circumstances Kiwigrid will inform you in a timely manner.
2.6 Communication with Kiwigrid
We may send you certain communications in connection with your use of the Platform Products. If you do not wish this, please send an email to kiwioskiwigrid.com.
If you provide feedback or suggestions about our Platform Products, then we (and those we allow) may use such information without obligation to you.
The Terms are non-exclusive. You acknowledge that Kiwigrid may develop products or services that may compete with the Clients or any other products or services developed on top of the KiwiOS Platform.
2.9 Data Protection
To the extent required by data protection laws applicable to the parties' processing of personal data under these Terms, the parties agree to enter into the necessary agreements, for example in accordance with Article 28 of the GDPR.
3. Your Client Applications
3.1 Client Applications and Monitoring
The Platform Products are designed to help you enhance your client applications ("Client(s)"). You agree that Kiwigrid may monitor use of the Platform Products to ensure quality, improve Kiwigrid Platform Products and verify your compliance with the Terms. This monitoring does not include Kiwigrid accessing and using your Clients. It may include inspecting the traffic for example to identify security issues that could affect Kiwigrid or its users. You will not interfere with this monitoring. Kiwigrid may use any technical means to overcome such interference. Kiwigrid may suspend access to the Platform Products by you or your Clients without notice if we reasonably believe that you are in violation of the Terms.
You will use commercially reasonable efforts to protect user information collected by your Client, including personally identifiable information, from unauthorized access or use and will promptly report to your users any unauthorized access or use of such information to the extent required by applicable law.
Kiwigrid does not acquire ownership in your Clients, and by using our Platform Products, you do not acquire ownership of any rights in our Platform Products or the content that is accessed through them, except for the rights of use set forth in section 2, except for the rights of use set forth in section 2.
3.4 User Privacy and Clients
4. Prohibitions and Confidentiality
4.1 Platform Products Prohibitions
When using the Platform Products, you may not (or allow those acting on your behalf to):
- Sublicense a Platform Product for use by a third party. Consequently, you will not create a Client that functions substantially the same as the Platform Products and offer it for use by third parties.
- Perform an action with the intent of introducing to Kiwigrid’s Platform Products any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature.
- Defame, abuse, harass, stalk, or threaten others.
- Interfere with or disrupt the Platform Products or the services or networks providing these.
- Promote or facilitate unlawful online gambling or disruptive commercial messages or advertisements.
- Reverse engineer or attempt to extract the source code from any Platform Product or any related software, except to the extent that this restriction is expressly prohibited by applicable law. Section 3 (1) no. 2 GeschGehG shall not apply.
- Use the Platform Products for any activities where the use or failure of them could lead to death, personal injury, or environmental damage (such as the operation of nuclear facilities, air traffic control, or life support systems).
- Violate these Terms or applicable law and shall not infringe or misappropriate the intellectual property of a third party.
- Remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material.
4.2 Confidential Matters
- Developer credentials (such as passwords, keys, and client IDs) are intended to be used by you and identify your Client. You will keep your credentials confidential and make reasonable efforts to prevent and discourage other Clients from using your credentials. Developer credentials are prohibited to be embedded in open source projects.
- Our Platform Products and our communications to you may contain Kiwigrid confidential information. Kiwigrid confidential information includes any materials, communications, and information that are marked confidential or that would normally be considered confidential under the circumstances. If you receive any such information, then you will not disclose it to any third party without Kiwigrid's prior written consent. Kiwigrid confidential information does not include information that you independently developed, that was rightfully given to you by a third party without confidentiality obligation, or that becomes public through no fault of your own. You may disclose Kiwigrid confidential information when compelled to do so by law if you provide us reasonable prior notice, unless a court orders that we not receive notice.
5.1 Submission of Content Through our Platform Products
Some of our Platform Products allow the submission of content. Kiwigrid does not acquire any ownership of any intellectual property rights in the content that you submit to our Platform Products through your Client, except as expressly provided in the Terms. For the purpose of enabling Kiwigrid to provide, secure, and improve the Platform Products and only in accordance with the applicable Kiwigrid privacy policies, you give Kiwigrid a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to use content submitted, posted, or displayed to or from the Platform Products through your Client. "Use" means use, host, store, modify, communicate, and publish. Before you submit content to our Platform Products through your Client, you will ensure that you have the necessary rights (including the necessary rights from your end users) to grant us the license.
5.2 Retrieval of content
When a user's non-public content is obtained through the Platform Products, you may not expose that content to other users or to third parties without explicit opt-in consent from that user.
5.3 Retrieving Data
Kiwigrid supports retrieving data. You can retrieve the user data you have received about our Platform Products at any time in a commonly used and machine-readable format.
5.4 Data Removal
Data to be deleted due to termination, expiry of a contract or for other reasons will be archived after 12 weeks. The final deletion takes place 24 months after the initial removal request. Within this period of time a copy of these data can be requested against a fee.
5.5 Prohibitions on Content
Unless expressly permitted by the content owner or by applicable law, you will not, and will not permit your end users or others acting on your behalf, to do the following with content returned from the Platform Products:
- Scrape, build databases, or otherwise create permanent copies of such content, or keep cached copies longer than permitted by the cache header;
- Copy, translate, modify, create a derivative work of, sell, lease, lend, convey, distribute, publicly display, or sublicense to any third party;
- Misrepresent the source or ownership; or
- Remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material.
6. Publicity and Marketing Use
You will not make any statement regarding your use of a Platform Product which suggests partnership with, sponsorship by, or endorsement by Kiwigrid without Kiwigrid's prior written approval. If you want to promote your products using "powered by Kiwigrid", the Kiwigrid logo or similar, you should ask us for permission beforehand.
6.2 Promotional and Marketing Use
In the course of promoting, marketing, or demonstrating the Platform Products you are using and the associated Kiwigrid products, Kiwigrid may use your company or product name in consultation with you. You grant us all necessary rights for the above purposes.
7. Starter Customer Use (“Starter Use”)
Starter Use: Kiwigrid does not provide any SLAs during this phase. Kiwigrid may discontinue a Platform Product at any time and may decide never to make a Platform Product available after the Reference Use phase.
You will have access to Content and Products through your Account. Kiwigrid does not warrant that the use of the Platform Products during Starter Use will not be affected by downtime, maintenance, further development, updates and upgrades or malfunctions. Kiwigrid will make reasonable efforts to make the Reference Use phase as user-friendly as possible. However, technical disruptions may result in temporary restrictions or interruptions.
Insofar as Platform Products during Starter Use are made available free of charge, liability for damages resulting from the use is excluded, in deviation from Section 10, unless there is gross negligence and/or intent. Liability for damages under the Product Liability Act or a correspondingly applicable mandatory law is not excluded.
Production Use: After the Starter Use phase, there will be a Production Phase where SLAs are provided. Furthermore the Platform Products can be discontinued but only to the conditions mentioned in no. 8 of the General Part A of our GTC (AGB).
Kiwigrid may suspend your access to the KiwiOS.io platform if Kiwigrid reasonably determines that your content and/or your usage of the KiwiOS.io platform
- pose a security risk to the KiwiOS.io platform and/or third parties;
- may interfere with the KiwiOS.io platform or the systems or content of other customers;
- violate applicable law or third party rights;
- may expose Kiwigrid or third parties to liability; or
- are fraudulent.
Kiwigrid may suspend your access to the KiwiOS.io platform if Kiwigrid reasonably determines that
- you violate these Terms or any other contractually security-related regulations;
- you are more than 30 days in arrears with your payment obligations.
Kiwigrid shall notify you of the suspension by sending a notice to the email address associated with your account, unless Kiwigrid is required to act immediately due to the seriousness and urgency of the matter and is unable to provide prior notice.
The block will be lifted as soon as you have resolved the issue that led to the block.
Kiwigrid's right to suspend your access to the KiwiOS.io platform is in addition to Kiwigrid's right to terminate these Terms pursuant to Section 9 and any other remedies available to Kiwigrid under applicable law.
9. Term and Termination
You may stop using our Platform Products at any time with or without notice. Further, if you want to terminate the Terms, you must provide Kiwigrid with prior written notice and upon termination, cease your use of the applicable Platform Products.
9.3 Termination for Cause
The right of the Parties to terminate these Terms for cause and without notice shall remain unaffected. Good cause shall be in evidence when one Party grossly breaches express obligations under these Terms, in particular if you utilize the KiwiOS.io platform or the Service Offerings outside the scope of these Terms and remain in breach after the end of a reasonable cure period following a warning notification by Kiwigrid.
9.4 Effect of Termination
Upon any termination of the Terms or discontinuation of your access to the respective Platform ProductsI, you will immediately stop using these Platform ProductsI. All data will be removed as described in Section 5 d.
Upon the effective date of termination your Client will no longer be accessible. You remain responsible for all fees and charges which have incurred through the date of termination.
9.5 Surviving Provisions
When the Terms come to an end, those Terms that by their nature are intended to continue indefinitely will continue to apply, including but not limited to: Sections 4b, 5, 10 and 11.
10. Liability for our Platform Products
We do not guarantee that the Platform Products will operate without interruption or malfunction. In particular, operation of the Platform Products may be interrupted due to maintenance, updates, or system or network failures. Kiwigrid disclaims any liability for damages caused by such interruptions or functional errors or that no data loss will occur.
For further details regarding the availability and services of the Platform Products in the Production Use phase, please refer to the relevant SLA documentation.
Kiwigrid may suspend your access to the KiwiOS.io platform if Kiwigrid reasonably determines that
- in the event of intent or gross negligence;
- in accordance with the provisions of the German Product Liability Act or any applicable corresponding mandatory laws; and
- for loss of life or bodily injury/harm.
In the event of any property and financial damage caused negligently in any other way, Kiwigrid and persons engaged by it for the performance of its obligations shall be liable only in the event of a breach of a material contractual obligation, the amount being limited, however, to the damages foreseeable at the time of acceptance of these Terms by you and typical of the type of contract; material contractual obligations are those obligations which are necessary to the fulfillment of these Terms, upon which you may therefore rely (“Material Obligation”).
Notwithstanding the provision in the first paragraph, in the event of a negligent breach of a Material Obligation evidenced by you, the amount of Kiwigrid’s liability for all damaging events occurring in the same contract year is limited to the value of the contract per contract year, however, at up to a maximum of Euro 50,000 per contract year. A contract year shall be the 12-month period starting on the date of registration and every subsequent twelve-month period.
No-fault liability for damages per § 536a BGB shall be excluded for defects that existed at the time of conclusion of these Terms.
Furthermore, Kiwigrid’s liability is excluded.
The foregoing limitations of liability shall also apply in the event of fault by a person engaged by Kiwigrid in the performance of its obligations and to the personal liability of employees, representatives and corporate bodies of Kiwigrid.
You shall indemnify and hold Kiwigrid harmless from and against any and all claims of third parties related to
- your misuse or your end user's misuse of the Platform Products;
- your violation or your end user's violation of these Terms or of applicable laws or regulations;
- the usage of the KiwiOS platform and its Platform Products by you in a manner that infringes or violates the rights of any third party;
- claims relating to any content or data routed into or used with the Platform Products by you, those acting on your behalf, or your end users, including any claims arising from the alleged infringement or misuse of third party rights by you or by the use, development, design, production, advertising or marketing of your content;
- the use of open source software by you;
- any violation by you or through your content of any applicable data protection law or other provisions relevant to data protection law as agreed herein or in any other context between the Parties;
- violations by you of applicable export and re-export control laws and sanctions regulations; unless you are not responsible for the claim.
- Kiwigrid shall notify you without undue delay and leave it to you to defend yourself against such claims. Kiwigrid shall support you to a reasonable extent. In particular, Kiwigrid shall, to the extent possible, provide you with all necessary information on the use and possible handling of the KiwiOS.io platform and the service offers which are the subject of these Terms.
11. General Provisions
We may modify the Terms or any portion to, for example, reflect changes to the law or changes to our Platform Products. You should look at the Terms regularly. We'll post notice of modifications to the Terms within the documentation of each applicable Platform Product, to this website or by email. Changes will not apply retroactively and will become effective no sooner than 30 days after they are posted. But changes addressing new functions for a Platform Product or changes made for legal reasons will be effective immediately. If you do not agree to the modified Terms for a Platform Product, you should discontinue your use of that Platform Product. Your continued use of the Platform Product constitutes your acceptance of the modified Terms.
11.2 General Legal Terms
Nothing in the Terms will limit either party's ability to seek injunctive relief. We are not liable for failure or delay in performance to the extent caused by circumstances beyond our reasonable control. If you do not comply with the Terms, and Kiwigrid does not take action right away, this does not mean that Kiwigrid is giving up any rights that it may have (such as taking action in the future).
Should any provision of these Terms be or become invalid or unenforceable, this shall, however, not affect the remaining provisions.
Kiwigrid is entitled to commission any service from third parties acting as subcontractors.
The contractual relationships between the Parties shall be governed by the laws of the Federal Republic of Germany. Application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
The exclusive place of jurisdiction for any legal disputes arising from or in connection with these Terms shall be Dresden, Germany.
Force Majeure: Operational disruptions caused by force majeure or other unavoidable events beyond Kiwigrid's control,
- which could not be averted with reasonable effort; and
- which could not have been foreseen even when exercising with extreme care, and
- which make Kiwigird's obligations under these Terms considerably more difficult or completely or partially impossible,
- such as strikes, lockouts, exceptional weather conditions, operational or traffic disruptions and transport obstructions, discharge Kiwigrid from its obligations under these Terms for the duration of such an event.
Any statements or notifications to be made by you to Kiwigrid after your acceptance of these Terms (e.g. setting of time limits, notification of defects) must be provided in text form in order to be effective.
You may not assign any or all portion of your obligations without the prior written consent of Kiwigrid, not to be unreasonably withheld.
D. Special Terms and Conditions for the Sale of Kiwigrid Hardware
1. Scope of Part D
1.1 These Terms and Conditions apply to the sale of hardware by Kiwigrid for use in connection with the Kiwigrid platform and its delivery to the Customer and to the provision of a simple, non-exclusive, perpetual, and transferable right of use to the operating software of the hardware sold, subject to the restrictions under Sections 4 and 5.
1.2 In addition to these provisions, the provisions of General Part A of the Terms and Conditions apply.
2. Services covered by the contract
2.1 The subject matter of this individual hardware contract is the sale of Energy Managers and, if applicable, agreed extensions of Kiwigrid to the Customer (“Hardware”).
2.2 The Hardware is suitable for use in conjunction with the Kiwigrid platform. Full use of the Hardware and its operating system is only possible in conjunction with the Kiwigrid platform and a connection of the Hardware to the internet, which the Customer or its End Customers must provide. Among other things, this internet connection enables Kiwigrid to perform updates to the Hardware’s operating software.
2.3 The quality, scope of services, functions and compatibility of the Hardware and the necessary system requirements are based on the service description, which shall be made available to the Customer at the latest when the offer is made, and also on the installation and operating instructions, unless otherwise agreed.
2.4 If supply of the Hardware includes operating software that is absolutely necessary for its function, the Customer shall only receive a right to use that software with the Hardware. Other software is subject to separate regulations.
2.5 Unless otherwise agreed, the Hardware shall be properly installed and commissioned by the Customer in accordance with the installation instructions provided. A charge on the basis of cost shall be made for all other services of Kiwigrid that are provided at the Customer’s request (in particular operational preparations, installation and demonstration of successful installation, instruction, training, and consulting).
3. Ordering procedure, quantity forecast, and delivery
3.1 If the Customer wishes to purchase Hardware, the Customer shall notify Kiwigrid in writing or text form by placing a purchase order at least eight (8) weeks prior to the requested delivery date.
3.2 An order from the Customer becomes binding on acceptance by Kiwigrid. Acceptance shall be given in writing or in text form to the Customer and include confirmed quantity details and the delivery date.
3.3 In order to facilitate planning of future order quantities, the Customer shall notify us in writing or text form no later than four (4) weeks prior to the beginning of each calendar quarter of the anticipated demand for Hardware for each of the following three (3) calendar months. Although this demand forecast is not binding for either Party, it is intended to improve the ability to plan for execution of the contract.
3.4 As soon as it becomes foreseeable for Kiwigrid that an agreed delivery date will be exceeded, Kiwigrid shall immediately notify the Customer of this in text form. Kiwigrid and the Customer shall then agree on how any adverse consequences of the impending delay to delivery can be averted or mitigated.
3.5 The Hardware purchased by the Customer shall be collected by the Customer from Kiwigrid (ex works Kiwigrid, Kleiststraße 10 a-c, 01129 Dresden, Germany, according to Incoterms 2020), unless the Parties agree on shipment to another delivery address.
3.6 Kiwigrid shall pre-install the Kiwigrid applications ordered and the version of the operating system required on the Hardware ordered, create a connection to the Customer client in KiwiOS.cloud, and activate the Kiwigrid applications ordered for the Customer client. The installed version of the software shall be documented by Kiwigrid on the delivery note.
4. Acquisition of Hardware and obligations to cooperate; Right to use operating software; Copyright; Transfer of rights of use
4.1 Subject to Section 6.1, the Customer shall acquire title to the Hardware designated in the order and the scope of delivery included therein (including the brief documentation). The operating instructions and installation instructions may be made available to the Customer electronically at Kiwigrid’s discretion, unless this is unreasonable for the Customer.
4.2 The Customer shall ensure that all Hardware is installed by trained personnel only, unless otherwise expressly indicated. The Customer therefore undertakes to offer and carry out regular training of Installers (i.e. both its own and external personnel), who will be commissioned with installing the Hardware, and to oblige its End Customers to have the Hardware installation carried out only by Installers trained by the Customer.
4.3 Subject to the limitation of Section 5, Kiwigrid shall grant the Customer the non-exclusive, perpetual, and transferable right to use the operating software installed on the Hardware. The Customer is aware that full use of Hardware and operating software is only possible in combination with access to the Kiwigrid platform. This access authorization is limited in time to the term of a SaaS order or PaaS order between Kiwigrid and the Customer.
4.4 The operating software is installed on the Hardware in executable form (object code). Source codes are not delivered with the Hardware.
4.5 The operating software including the associated documentation and the other documents supplied are protected by copyright.
4.6 The Customer undertakes to take appropriate technical and organizational measures to ensure that the intended use of the Hardware and the operating software is guaranteed, for example by a corresponding obligation of its End Customers.
4.7 The Customer is entitled to place the Hardware on the market after its acquisition, either individually or in combination with its own products, directly or via resellers.
4.8 If the Customer is a reseller or if the Customer otherwise exercises its right to transfer the rights of use for the operating software to a third party, the Customer shall impose the contractual obligations pursuant to Sections 4 and 5 on the third party. When the rights of use are transferred, they shall pass to the new user and the rights of use of the Customer shall expire. All existing copies of the transferred operating software shall be deleted.
4.9 Copies of the documentation may not be made for commercial purposes.
5. Extraordinary termination of the rights of use to the operating software
5.1 If the Customer seriously violates the agreed rights of use or property rights of the rights holder, Kiwigrid may terminate the rights of use. This step is only taken following an unsuccessful warning with an appropriate deadline set by Kiwigrid.
5.2 The operating software may be subject to export control regulations in individual countries. The Customer is responsible for compliance with these. If the Customer violates such export control regulations, Kiwigrid may revoke the rights of use.
5.3 In the event of termination of the rights of use pursuant to Section 5.1, the Customer is obliged to delete the operating software affected by the termination, including the documentation and all copies. If requested by Kiwigrid, the Customer shall submit a declaration that the deletion has taken place.
6. Extended retention of title
6.1 The Hardware delivered by Kiwigrid shall remain the property of Kiwigrid until all claims to which Kiwigrid is entitled from the Customer arising from the business relationship have been settled.
6.2 If the Customer sells the Hardware as a reseller to resellers or to End Customers, the Hardware delivered by Kiwigrid may only be resold subject to retention of title until the purchase price has been paid in full and only in the ordinary course of business.
6.3 The Customer as a reseller hereby assigns to Kiwigrid in advance all claims, including all ancillary rights, in the full amount which it acquires against its customers from the sale of the Hardware owned by Kiwigrid. If the Hardware owned by Kiwigrid has been sold together with other items for an overall price, the assignment is limited to that part of the overall price that corresponds to the ratio of the value of Kiwigrid’s Hardware to the value of all items sold for the overall price.
6.4 The Customer is entitled to collect the claims assigned to Kiwigrid. It shall transfer the proceeds to Kiwigrid no later than the respective due date. In the event of a delay in payment or a significant deterioration in assets, Kiwigrid is entitled to disclose the assignment and to demand payment from the End Customer directly. The Customer is obliged, at the request of Kiwigrid, to inform its customers of the assignment and to hand over to Kiwigrid all documents and information necessary for assertion of the assigned claims. It is further obliged to provide Kiwigrid, on request, with an exact list of the claims assigned to Kiwigrid, stating the debtors, the amount of the individual claims, the invoice details and any other information requested by Kiwigrid that is specifically required for the collection of the claim.
6.5 The Customer is expressly prohibited from pledging, assigning by way of security, or transferring by way of security the Hardware owned by Kiwigrid or the claims assigned to Kiwigrid.
6.6 Likewise, the Customer is expressly prohibited from entering into and executing blanket assignment agreements or so-called factoring agreements (transfer of the receivable to a factoring company or to a third party as a security transaction, so-called non-genuine factoring), insofar as such an agreement relates to receivables assigned on the basis of these contractual Terms and Conditions. The Customer is obliged to inform Kiwigrid if, at the time of entering into business relations with Kiwigrid or at the time of acceptance of these Terms and Conditions, it has already entered into contracts of the type described in the preceding sentence with a third party.
6.7 The Customer is obliged to inform Kiwigrid immediately of any access by third parties to the Hardware owned by Kiwigrid or to the claims assigned to Kiwigrid and to support Kiwigrid in protecting its rights in every way. In particular, in the event of any seizure, the Customer shall inform the enforcement officer that the seized Hardware is the property of Kiwigrid. It shall immediately send Kiwigrid the seizure report and confirm in writing to Kiwigrid that the seized Hardware is the property of Kiwigrid. Where damage occurs to the Hardware of Kiwigrid due to access by third parties, the Customer shall replace it. The Customer shall bear all costs incurred by an intervention by
6.8 If the Customer defaults on payment or ceases to make payments, its right to resell Kiwigrid’s Hardware and to collect the associated receivables shall expire.
6.9 In case of default of payment, Kiwigrid is entitled to withdraw from the contract and to reclaim the Hardware or, if the Hardware has been resold, to collect the assigned claims.
7. Warranty; Material defects and defects of title
7.1 Kiwigrid warrants that the Hardware, when used in accordance with the contract, complies with the agreements pursuant to Section 2.
7.2 Section 9 applies additionally to material defects and Section 10 of General Part A of the Terms and Conditions applies additionally to defects of title.
7.3 The delivered Hardware shall be inspected carefully immediately on delivery to the Customer or to the third party designated by the Customer (Section 377 HGB). It shall be deemed to have been accepted if Kiwigrid has not received a written notice of defect with respect to obvious defects or other defects that were apparent on prompt, careful examination within ten (10) business days after delivery of the Hardware or otherwise within ten (10) business days of discovery of the defect or any earlier time at which the defect was apparent to the Customer without closer examination during normal use of the Hardware. The Customer shall be entitled to claim for defects only if reported defects are reproducible or otherwise demonstrable by the Customer. At the request of Kiwigrid, the defective Hardware shall be returned to Kiwigrid freight prepaid for the purpose of supplementary performance. In the event of a justified notice of defect, Kiwigrid shall reimburse the costs of the most favorable shipping route; this shall not apply if the costs increase because the Hardware is located at a place other than the place of intended use or abroad.
7.4 In the event of material defects in the delivered Hardware, Kiwigrid shall first be obliged and entitled to rectify the defect or to make a replacement delivery at its discretion within a reasonable period of time. In doing so, Kiwigrid shall give due consideration to the interests of the Customer. Kiwigrid may also remedy the defect by providing a software update for the operating software of the Hardware that eliminates the defect. For this purpose, the Customer shall connect the Hardware supplied to the internet and assist with the update to the extent necessary, as specified by Kiwigrid. Kiwigrid is released from the warranty for as long as the Customer fails to establish the internet connection for an update or does not support the update to the extent required. Ownership of parts that are replaced in the course of rectification shall pass to Kiwigrid.
Section 439(6) BGB remains unaffected.
7.5 In case of failure, i.e. impossibility, unreasonableness, refusal, or unreasonable delay of the repair or replacement delivery, the Customer may withdraw from the contract or reduce the purchase price by an appropriate amount. If the Customer withdraws from the contract, Kiwigrid shall take back the Hardware and refund the payment made by the Customer, less the usage options granted to the Customer, but no more than the usual sales value of this Hardware at the time of return.
7.6 If Kiwigrid is responsible for a defect, the Customer may claim damages under the conditions set out in Section 11 of the provisions of General Part A of the Terms and Conditions.
7.7 In the event that the Hardware infringes an industrial property right or copyright of a third party, Kiwigrid shall, at its discretion and at its expense, modify or replace the Hardware in such a way that third-party rights are no longer infringed, but the Hardware continues to fulfill the contractually agreed functions, or procure the specific right of use for the Customer by concluding a license agreement. If it does not succeed in doing so within a reasonable period of time, the Customer shall be entitled to withdraw from the contract or to reduce the purchase price by an appropriate amount. Any claims for damages by the Customer shall be subject to the provisions of Section 11 of General Part A of the Terms and Conditions.
7.8 Kiwigrid shall not provide any warranty for Hardware that is not installed in accordance with the specifications of Section 4.2 by expert, trained personnel. Non-contractual use of the goods also does not constitute a defect.
7.9 The warranty shall also lapse if the Customer modifies the Hardware or has it modified by third parties without Kiwigrid’s consent and the rectification of defects is thereby rendered impossible or unreasonably difficult. In any case, the Customer shall bear the additional costs of the rectification of defects caused by the change.
7.10 Product and other descriptions of properties by Kiwigrid do not constitute guarantees of quality or durability within the meaning of Section 443 BGB. The Parties agree that a guarantee declaration within the meaning of Section 443 BGB is exists only if Kiwigrid submits it in writing using the term “guarantee” and in compliance with the formal requirements listed in Section 479 BGB.
E. Special Terms and Conditions for the Provision of Services
1. Scope of Part E
These Terms and Conditions apply in addition to the provisions of General Part A of the Terms and Conditions to services offered by Kiwigrid.
2. Type and scope of service
2.1 In particular, Kiwigrid shall support the Customer with the following types of services:
- Modification of Kiwigrid Products within the meaning of Section 2.1 Part B of the Terms and Conditions (SaaS), for example customer-specific adaptations or extensions
- Software developments
- Performance of analyses
- Project management
- Organizational consulting
- Implementation support
- Operating instructions/training
- Management consulting
The type, place, time, and scope of the services are set out in the Individual Contract. Services under a work contract are not the subject of these Terms and Conditions and are only effective in the form of a deviating written agreement in the Individual Contract.
2.2 As far as the services mentioned in Section 2.1 are concerned, Kiwigrid shall support the Customer exclusively in projects in connection with the execution of the Individual Contract; the Customer shall bear the responsibility for the overall project and its success. Kiwigrid assumes no responsibility for a specific outcome in connection with the services provided, unless expressly agreed otherwise.
2.3 Kiwigrid shall provide the services in accordance with the state of the art at the time of conclusion of the contract and use personnel qualified to deliver the agreed services. The Customer is not entitled to the performance of services by specific employees of Kiwigrid. The Customer is also not authorized to issue instructions to the employees deployed for the provision of services.
3. Rights of use
3.1 All industrial property rights in connection with the services provided by Kiwigrid, in particular copyright to services provided, shall remain with Kiwigrid.
3.2 On full payment of the remuneration, the Customer shall be granted the non-exclusive and non-transferable right to use the results of the services for its own purposes within the scope of the contractually stipulated purpose of use on a permanent basis, unless otherwise agreed.
3.3 If the Customer intends to grant third parties rights of use to the service results provided, this shall require the written consent of Kiwigrid.
4. Impaired performance
4.1 If the service is not provided in accordance with the contract and if Kiwigrid is responsible for this, it shall be obliged to provide the service in accordance with the contract in whole or in part without additional costs for the Customer within a reasonable period of time, unless this is only possible with disproportionate effort. The prerequisite is a written complaint from the Customer, which must be made immediately, at the latest within 2 weeks of the impairment becoming known.
4.2 Further claims of the Customer on the grounds of qualitative performance problems are excluded. This exclusion does not apply in cases of intent or gross negligence, nor in cases of injury to life, limb, or health.
The remuneration for the provision of services within the meaning of the above provisions is based on the standard or published list prices (available at: ...).