General terms and conditions

General Terms and Conditions of BioBench B.V., represented by the sole agents authorised to represent to company, Managing Director Dipl.-Ing. Erwin Voss and Dr Ing. Peter Breithaupt, Kromme Elleboog 25, 9751 RB Haren, The Netherlands, for use of the BioBench B.V. platform.

Preliminary notes

BioBench B.V. (hereinafter referred to as ’BioBench’) provides an internet-based platform (hereinafter referred to as the ’platform’) to biogas plant operators. This platform helps plant operators to manage an operations diary, provides tips concerning potential improvements, and enables operating parameters and processing data to be compared with theoretical values and – where available – with data from other plant operators.

§ 1 Scope of application of these General Terms and Conditions; signing of the contract

(1) These General Terms and Conditions apply to use of this platform. Biogas plant operators are not users as defined under § 13 of the German Civil Code; there is therefore no right of withdrawal.

(2) No terms in conflict with or deviating from these terms of use shall be accepted, except in the case of express written agreement with BioBench to this effect. These Terms and Conditions of Use apply equally where BioBench provides services without reservation despite being aware of contradictory or deviating terms applied by the customer.

(3) A contract of use must be signed between the customer and BioBench prior to use of the platform. By registering, the customer submits a request to BioBench to sign a contract of use under the terms and conditions set out below. After checking the customer’s proposal, BioBench sends the customer an email with registration details to the customer’s email address. This contract of use (hereinafter referred as the ’contract’) enters into force as soon as the registration details have been sent to the customer at the aforementioned email address.

§ 2 Subject of the contract; obligations on the part of BioBench

(1) The subject of the contract is use by customers of the platform provided by BioBench to support biogas plant operators.

(2) BioBench provides the platform to the customer in accordance with the description of services for use via the internet which is applicable at the time of the customer’s registration. The operational description may be viewed at [www.biobench.com]. The platform is 99% available as an annual average. This does not include (i) regular maintenance periods to the appropriate extent which are announced in advance, and (ii) periods where use of the platform is disrupted or adversely affected due to pressing technical reasons or because of necessary maintenance for which BioBench is not liable under the provisions of these General Terms and Conditions.

(3) The data, information and recommendations which BioBench makes available through the platform do not necessarily represent optimal value nor compulsory procedures. Rather, they are designed to help platform users to help themselves to optimise their biogas plants. The data, information and recommendations provided via the platform are not designed as a substitute for on-site testing of the biogas plant and tailored operational recommendations made by a technical expert.

(4) Neither does use of the platform release the customer from any legal obligations or contractual obligations to third parties to document plant operations.

§ 3 Introduction of additional modules

(1) During the term of the contract, BioBench also provides customers, at BioBench’s sole discretion, with the use of additional modules, tools, functionalities or additional areas on the platform (hereinafter referred to as ’modules’) whose functionalities extend beyond the description of platform services available from [www.biobench.com]. These modules are used under the General Terms and Conditions of Business below. BioBench nevertheless reserves the right to impose special terms of use for access to these modules. In such cases, BioBench will make clear reference to this requirement.

(2) A contract for the use of modules enters into force with BioBench’s confirmation of the user’s contractual offer or at the time of BioBench’s first action of fulfilment.

§ 4 Granting of rights

For the terms of this contract BioBench grants the customer the non-exclusive (simple), non-transferable, non-licensable right to use the platform in exchange for payment. This does not constitute transfer of the platform to the customer. The customer is not entitled, beyond the purposes of this contract, to use, reproduce, download or provide access to the platform or to data other than his own.

§ 5 Obligations on the part of the customer

(1) The customer must provide the details requested at registration in full and truthfully. The customer undertakes to update details provided to BioBench immediately in the case of amendments.

(2) The customer is permitted to use the platform only for his own purposes. Use of the platform for third party biogas plants, the transfer of passwords to third parties and all other means of facilitating access to the platform by third parties are not permitted. The customer shall ensure that all active users within his organisation also comply with these obligations. The customer must change passwords allocated to him by BioBench at the time or registration immediately. The customer is liable for usage fees and compensation if, through his own fault, third parties access BioBench services through misuse of his passwords.

(3) The customer is aware that there is a risk of data loss associated with internet-based storage. In his own interests, the customer must regularly print out and/or, so far as possible, download the data he has entered on the platform along with the values provided to him by BioBench through the platform. Where download is possible, the user must not download to BioBench servers or computers, but rather to external memories.

(4) All customer activities which are designed to, or could have the effect of, rendering BioBench’s infrastructure non-operational, or hindering its use, are forbidden, and may result in civil or criminal prosecution. The automatic readout of data or values provided from the platform (by means of crawling or spiders, for example) is permitted only with BioBench’s agreement.

(5) The customer is responsible for ensuring that he meets the technical conditions required for access to the platform, particularly in terms of hardware, software and an internet connection. On request, BioBench will advise customers of the relevant technical conditions. If the platform is further developed, the customer is responsible, following advice from BioBench, to make any necessary adjustments to the software and hardware he has installed. BioBench works with all modern internet browsers which support Javascript (BioBench will work reliably only with later versions than 6.0 of Microsoft® Internet Explorer®). The use of cookies must be activated.

§ 6 Use of customers’ technical data

In using the platform, the customer enters basic technical and operational data from his biogas plant onto the platform such as, for example, the plant’s technical processing configuration, the number and allocation of technical devices to measure electricity and pilot fuel as well as the daily substrate feed and technical operating data such as the fermenter temperature and the biogas flow volume. The customer consents to this, and transfers associated rights to BioBench to use all this data anonymously in order to optimise its services, grant third parties – particularly other customers – access to the data and include the data on its platform on an ongoing basis.

§ 7 Duration of the contract and termination

(1) Unless agreed otherwise in writing between the customer and BioBench, the term of the contract is 12 months.

(2) At expiry, the term of the contract is renewed automatically for a further twelve months unless terminated by either party giving four week’s written notice to the end of the contractual term.

(3) This does not affect the right of either party to terminate without notice where there is good cause. If BioBench terminates the contract with good cause for which the customer is liable, there will be no pro rata reimbursement of the fees already paid by the customer.

§ 8 Payment

(1) The customer pays to make use of the platform. The level of payment is defined by the BioBench price list available from www.biobench.com/de/preisliste.

(2) The customer is liable for payment for use of the platform using the access data provided to him even where the platform is accessed by users with no entitlement or unauthorised third parties. BioBench may claim such payment only provided there is evidence that the customer is responsible for use by the third parties. The obligation to make payments applies equally where the customer had a well-founded suspicion that third parties knew the access details and failed to advise BioBench immediately. The customer is not, however, obliged to pay for use where usage took place after the customer had informed BioBench that the access details had become known to a third party.

(3) Use of the platform is payable in advance with the initial payment due when paid for use of the platform begins. Payment for the use of the platform when the term of the contract is extended in accordance with § 7 clause 2 of these General Terms and Conditions is due on expiry of the four-week notice period prior to the end of the current contractual term. Fees for services other than the option of using the platform are payable immediately and in full on supply of the service and receipt of the invoice by the customer.

(4) All fees and prices referred to are subject to the statutory rate of VAT applicable. This will be invoiced separately in addition to the fee.

(5) In order to compensate for higher personnel and other costs, BioBench is entitled to adjust the cost and fees for the services covered by the contract. However any such price adjustment is permitted at the earliest twelve months after signing of the contract, and only once per contractual year. BioBench shall inform the customer in writing of any changes at the latest six weeks before they come into effect. If the customer refuses to accept the price increase, he is entitled to terminate the contract in full providing one month’s notice to the end of the calendar month provided the price increase represents more than 10% of the previous fee. If the customer terminates, the prices prior to the increase continue to apply until such time that the termination becomes effective.

(6) The customer has the right to set off a claim or assert a right of retention only in the case of legally determined or undisputed claims. The customer may transfer his rights and obligations under this contract to third parties only with prior written agreement from BioBench.

§ 9 Payment arrears

If the customer is in considerable arrears with payments, BioBench is entitled to block access to the platform. Considerable is defined as 25% of the payment owed by the customer. In such circumstances, the customer continues to be liable for payment.

§ 10 Changes to the service

(1) BioBench may change the service at any time in a way that is reasonable for the customer. Such a change is deemed to be reasonable in particular where it becomes essential for a significant reason such as, e.g., disruption to service delivery by sub-contractors, or the hosting partner for example, and where the fundamentals of the performance features as described in the summary of services and user documentation continues to be provided. BioBench will advise customers of the change in writing or by email at least six weeks before it takes effect.

(2) Notwithstanding this, BioBench is entitled to amend or extent (parts of) the service provided at any time. BioBench shall inform the customer in writing or by email of any changes or extensions at the latest six weeks before they come into effect. The customer may object in writing or by email to changes within two weeks of being advised of the change. If the customer fails to object, the changes and extension will be incorporated into the contract. BioBench will advise the customer of the consequences of his actions in the change notification. Where the customer objects to the change within the timescale set, BioBench may properly terminate the contract at the soonest possible termination date.

§ 11 Liability for failures

(1) BioBench is liable for failures in the service covered under this contract in accordance with § 11 here.

(2) A material defect is deemed to exist only where the platform does not provide the contractually agreed properties, or is not fit for the use stipulated in the contract. The contractual properties of the platform are defined primarily by the terms of this contract. Claims for material defects are excluded in the case of deviations which have only a slight negative impact on the platform’s suitability for use as stipulated in the contract (minor deviations). Major deviations include those where the effect on the data stored is such that practical use of significant parts of the platform in a way that makes commercial sense is rendered impossible, or is severely restricted.

(3) If the services to be supplied by BioBench under the terms of this contract are defective, BioBench shall, with an appropriate timescale which allows for at least two attempts to rectify matters, and on receipt of a written complaint from the customer, either remedy the services as it deems fit, re-supply the services, or take action to ensure that the customer is able to use the platform in accordance with the terms of the contract.

(4) Should attempts to provide defect-free service delivery fail within an appropriate deadline set by the customer due to reasons from which BioBench is responsible, the customer is entitled to reduce the agreed payment by an appropriate amount. The entitlement to reduce payment is restricted in amount to the monthly payment due for the proportion of the service found to be defective. Should a remedy fail once more subsequent to this, the customer may terminate the contract without notice.

(5) Where BioBench does not have extended liability on the basis of mandatory legal regulations, customers have no further entitlements and rights, including entitlements and rights other than those expressly referred to in clause 8 of this contract, due to defects in contractual performance.

§ 12 Liability

BioBench is ultimately liable, regardless of legal basis, as follows:

(1) BioBench has unlimited liability in the case of wilful intent and gross negligence.

(2) In the case of slight negligence, BioBench is liable only for breach of a fundamental contractual obligation (material obligation) and for damages arising from injury to life, body and health. Material obligations in the sense described above cover all obligations arising from the nature of the contract, or obligations which if not met endanger fulfilment of the purpose of the contract, and obligations with which the customer may usually expect compliance. In the case of minor breach of material obligations, the liability to pay compensation is, however, limited to standard contractual, foreseeable damages up to a total maximum amount not in excess of one year’s fees under the terms of this contract.

(3) BioBench is not liable for lack of commercial success, loss of profits, indirect damage, consequential damage and third party claims, except claims concerning the infringement of third party intellectual property rights.

(4) The customer is responsible for regularly safeguarding his data. Where BioBench is responsible for a loss of data, BioBench shall be liable in accordance with the provisions of this contract only for the cost of reproducing the data, creating back-up copies, and the cost of restoring data which would have been lost even if the data had been safeguarded in an appropriate way.

(5) Any liability on the part of BioBench for guarantees granted, which must be expressly stated as such to classify as guarantees in the legal sense, and for claims on the basis of the Product Liability Act or in the case of fraudulent intent, remains unaffected.

§ 13 Final provisions

(1) This contract is subject to the laws of the Federal Republic of Germany, excluding application of the United Nations Convention on Contracts for the International Sale of Goods.

(2) The court of jurisdiction is Stolzenau, Lower Saxony, Germany.

(3) Should any provision of this contract be, or become, invalid, the validity of the remainder of the contract shall not be affected as a result. The parties to the contract are obliged, within the bounds of what is reasonable, and in good faith, to substitute the invalid provision with one which is commercially equally successful and reliable, provided this does not constitute a fundamental change to the content of the contract.