General Terms and Conditions

Basic provisions

1.1. The factorymaker FlexCo, FN 636571 i, Taubstummengasse 11, 1040 Vienna, Austria (“factorymaker“) develops and operates a Software as a Service (“SaaS“) solution for the fields of architecture, civil engineering, production and logistics, and related services for automated factory, logistics and industrial construction planning (the “Software“). The Software enables the contractual partner of factorymaker (the “Customer“, together with factorymaker: the “Parties“) the automated creation and optimization of areas and (building) volumes on commercially and industrially used properties, which can be accessed via a web application at https://www.factorymaker.com (“Web-App“).

1.2. factorymaker provides all services exclusively to Customers who are entrepreneurs within the meaning of § 1 (1) Z 1 of the Austrian Consumer Protection Act (Konsumentenschutzgesetz). All services are provided on the basis of these General Terms and Conditions of Business and Use (“GTC“), which can be accessed at any time at https://www.factorymaker.com/terms_and_conditions, in the version valid at the time the contract is concluded. These GTC shall apply to all legal transactions between the Parties even if no separate reference is made to them when the contract is concluded.

1.3. Deviating terms and conditions of the Customer shall not become part of the contract even if they are not expressly contradicted. Any reference to the Customer’s general terms and conditions in the form is hereby expressly rejected.

1.4. factorymaker reserves the right to amend these GTC at any time and without stating reasons in accordance with the following procedure. Changes to the fees or the scope of services are only possible with the express consent of the Customer.

If the amendments to the GTC are also to apply to existing contractual relationships, the amended GTC must be published on factorymaker’s website at https://factorymaker.at/terms_and_conditions and by sending the text of the GTC to the e-mail address last provided by the Customer at least 30 days before they come into effect. If the Customer does not object to the changes in writing or by email to support@factorymaker.at within 30 days of receipt of the aforementioned announcement, the changes shall be deemed to have been accepted by the Customer.

In the event of a timely objection by the Customer, the contractual relationship between the Customer and factorymaker will continue in accordance with the GTC in the version prior to the announced change. If the continued operation of the Software on the basis of the previous version of the GTC is no longer technically possible or no longer appears to make economic sense for factorymaker for other reasons, factorymaker has an extraordinary right of termination in the event of an objection.

2. Conclusion of contract

2.1. The Customer shall receive a written offer from factorymaker (the “Offer“) for the type, scope and costs of the provision of the Software or the provision of other services (“Other Services“; together with the provision of the Software, “Contractual Services“).

2.2. factorymaker’s Offers or any cost estimates are non-binding and subject to change unless they are expressly designated as binding.

2.3. In the case of non-binding Offers, the contractual relationship between the Parties (the “Contract“) will only come into effect upon written order confirmation by factorymaker or, if no such order confirmation is issued, upon commencement of the performance of the Contractual Services described in the Offer (e.g., creation of a corresponding Customer account for the Software). In the case of binding Offers, the Contract is concluded upon written acceptance of the Offer by the Customer within the offer period specified in the Offer. In such cases, factorymaker will set up access to the Software (the “Customer Account“) for the Customer after conclusion of the Contract.

3. Object of the contract

3.1. The subject matter of the Contract is the legal, organizational, commercial and technical conditions for the provision and operation of the contractual Software for use by the Customer as well as the provision of Other Services. The Other Services may include, in particular, onboarding (information material provided by email) and training services, insofar as these are agreed in the Offer. Unless expressly agreed in the Offer, factorymaker does not owe any other SaaS services, in particular customization or consulting services.

3.2. The Customer has the right to generate and simulate the number of projects agreed in the Contract during a period agreed in the Contract.

3.3. The Contractual Services to be provided by factorymaker expressly do not include inspections and/or surveys of properties or other factual services.

3.4. The Software is provided “as is”. The Customer had the opportunity to inspect the condition of the Software in the course of submitting the Offer, to ask questions about the functionalities and to understand which features and functions are offered on the basis of the information material provided.

3.5. Within the agreed scope, factorymaker has freedom of design in the provision of the Contractual Services, provided this is not unreasonable for the Customer and unless otherwise agreed in writing. factorymaker is also entitled to modify agreed Contractual Services to an extent that is reasonable for the Customer, in particular within the scope of the customary further development of the services by factorymaker. For further changes to the scope of services, section 1.4 shall apply accordingly.

3.6. The Customer has no claim to the provision of updates to the Software that serve to extend its functions.

3.7. The results and visualizations generated in the course of the provision of the Contractual Services (the “Results“) are based on the information entered into the Software by the Client (or under the Client’s responsibility). The Results are purely indicative and for information purposes only. It cannot be guaranteed that the Results (eco- and cost balancing, taxonomies, or structural and structural engineering) are completely correct, but are to be understood as approximations of the actual conditions. The Contractual Services are intended exclusively for experts in factory, logistics and industrial construction who can adequately evaluate and understand the Results. Liability for Results based on the Contractual Services provided shall only exist within the scope of section 9.

3.8. If written or audiovisual reports, recommendations, minutes and the like are provided as Results within the scope of the Contractual Services, these shall not constitute expert opinions, unless expressly agreed otherwise in writing. Consulting services in the area of construction planning, production planning, architecture of industrial buildings, factories and properties or other construction-related consulting services (e.g. ESG due diligence, technical due diligence, as-built surveys or analyses, cost estimates) are not promised or provided by factorymaker under any circumstances.

4. Technical requirements

4.1. In order to use the Software, the Customer must use the latest (browser) technologies or enable their use (e.g. activation of JavaScript, cookies). If older technologies are used, it is possible that the Software cannot be used to its full extent. In any case, factorymaker will not provide the hardware or operating systems required to use the Software. The full functionality of the Software is only guaranteed for the Safari, Chrome, Firefox and Opera browsers.

4.2. factorymaker is entitled at any time to adapt the Software to the current state of the art and to technical developments or to modify it for this purpose, insofar as this is necessary and reasonable for the Customer. Reasonable in the above sense is at least the provision of a hardware and software environment that was introduced to the market less than three years ago. factorymaker assumes no responsibility for ensuring that the Software is compatible with the hardware and software used by the Customer.

4.3. The use of the Software requires registration by the respective Customer. Internet access is also mandatory for use.

4.4. The Results can be accessed via the Software for a period of one (1) year. After expiry of this term, Results can remain available via the Software at the written request of the Customer for an annual fee. If the Customer does not request further availability after one (1) year, the Results shall be deleted.

4.5. The permitted use of the Software is governed by these GTC.

5. Obligations of the Customer to cooperate

5.1. In order to provide the Contractual Services, factorymaker requires certain information, data and documents from the Customer (e.g. land area, space and room requirements and their characteristics), which may vary depending on the scope of use of the Software. The Customer itself must enter or provide this information in the Software, whereby the Parties shall always comply with the applicable data protection regulations with regard to personal data. The Customer must inform factorymaker of all circumstances that are relevant to the provision of the Contractual Services. Any additional costs incurred by factorymaker due to incorrect, incomplete or missing information caused by the Customer will be borne by the Customer and may be charged to the Customer additionally.

5.2. The Customer is responsible for the accuracy and completeness of the information, data and documents provided for the provision of the Contractual Services. Furthermore, the Customer is obligated to keep the information, data and documents entered by him on the Software up to date and to notify factorymaker immediately of any changes or to update them himself on the Software.

5.3. It is the Customer’s responsibility to check the information, data and documents provided for the provision of the Contractual Services for any third-party rights. There is no obligation on the part of factorymaker to check in this regard. If claims are asserted against factorymaker due to such a violation of rights, the Customer must indemnify and hold factorymaker harmless.

5.4. The Customer must obtain any official or other necessary permits from third parties in connection with the construction of buildings. factorymaker shall bear no responsibility in this regard.

5.5. The Customer grants factorymaker the free, non-exclusive right, limited in time for the provision of the Contractual Services, to use all content transmitted by the Customer to the extent necessary for the provision of the Contractual Services. If the Customer transmits personal data to factorymaker, factorymaker assumes that the Customer is authorized to do so. The Customer is obliged to coordinate data protection aspects in advance and to comply with all applicable provisions, in particular the GDPR.

6. Copyrights of factorymaker, rights of use of the Customer

6.1. The Customer receives the non-exclusive, non-transferable right, limited in time to the duration of the contract, to use the Software as SaaS for internal purposes in accordance with the provisions of these GTC (the “License“).

6.2. The Customer also acquires the non-exclusive, perpetual and non-transferable right to use the Results created with factorymaker’s services and downloaded by the Customer (such as e.g. reports, (3D-)Models or visualizations) for its business purposes or to pass them on to its customers or external service providers for a fee or free of charge, provided that this serves the Customer’s business purposes. However, this does not in any case include the right to publish and disclose work results in publicly accessible media, in particular on websites or other public or private retrieval systems, or to market them in any other way.

6.3. Unless expressly stated otherwise below, the Customer shall use the Software only for the purposes specified in these GTC or in the contract.

6.4. The Software, the Results, and other content provided by factorymaker (such as, in particular, visualizations, 3D models, reports, drafts, concepts, or other content) are protected by copyright and may not be used or processed beyond the right of use granted in the Contract without the prior written consent of factorymaker. In particular, the Customer is prohibited from decompiling or reverse engineering the Software, attempting to obtain the source code and/or object code of the Software, editing or modifying the Software, creating derivative works from the Software or using such derivative works commercially.

6.5. Furthermore, the Customer is not entitled to reproduce any user documentation of the Software or parts thereof or to hand it over to unauthorized persons.

6.6. The Customer expressly does not acquire any rights of use whatsoever to the source and/or object code of the Software.

6.7. The granting of the rights of use pursuant to section 6.1 and section 6.2 is subject to full payment of the fee invoiced by factorymaker for the services ordered.

6.8. Under no circumstances shall any unauthorized duplication or distribution of the Contractual Services and Results give rise to any liability on the part of factorymaker – in particular for the accuracy of the content of the documents – vis-à-vis third parties.

6.9. The Customer’s breach of the provisions of this section 6. entitles factorymaker to immediately terminate the Contract prematurely for cause and to assert other legal claims, in particular for injunctive relief and damages.

7. Availability

7.1. The Software is generally available during normal business hours in Austria (working days except public holidays from 8 a.m. to 6 p.m.).

Downtimes do not include individual failures or impairments in the accessibility of the Software during agreed maintenance windows and/or during maintenance, installation or conversion work announced to the Customer with a reasonable lead time, as well as planned shutdowns or decommissioning during these times announced to the Customer with a reasonable lead time.

Periods during which the Software is not available or only available to a limited extent due to technical or other circumstances beyond the control of factorymaker (e.g. force majeure, disruptions in the telecommunications lines, fault of third parties) are not considered downtimes.

Periods during which factorymaker temporarily restricts access to the Software Products due to (i) an acute threat to its data, hardware and/or software infrastructure or those of its contractual partners due to external threats (e.g. viruses, port hacking, attacks by Trojans), or (ii) a significant threat to the security of the network operation or the network integrity are also not considered downtimes. In the event of such a decision, factorymaker will take into account the legitimate interests of its contractual partners as far as possible and will do everything reasonable for factorymaker to lift the access restriction (also) for the Customer as quickly as possible.

7.2. The Customer has no claim to the availability of the Software promised in these GTC if he uses it free of charge (e.g. during a free trial period). In particular, factorymaker may restrict or block access at any time during a free trial period.

7.3. The Customer is obligated to inform factorymaker immediately if the Software is not available.

7.4. The Customer must provide evidence of any shortfall in the agreed availability during a calendar year within two months of the end of the calendar year.

8. Fair Use, Support

8.1. The Customer is obliged to keep the access data for the software secret. The Customer is responsible for all activities originating from his Customer Account and is liable for any resulting damage. The Customer is prohibited from granting third parties access to the Software.

8.2. The Customer is obliged to keep the access data for the software secret. The Customer is responsible for all activities originating from his Customer Account and is liable for any resulting damage. The Customer is prohibited from granting third parties access to the Software.

In the event of blocking in accordance with the above paragraph, the Customer shall not be entitled to a refund of any fees already paid.

Once the reason for blocking no longer applies, factorymaker will unblock the Customer’s access to the temporarily blocked functions of the Software Products within a reasonable period of time. In the event of a justified permanent blocking, the Customer is no longer authorized to use the Software Products on a permanent basis. In both cases, factorymaker will inform the Customer thereof.

8.3. The Customer is obligated to notify factorymaker immediately as soon as there is any suspicion of unauthorized use of the Customer Account.

8.4. Customer support is available to the Customer via email at support@factorymaker.at. In any case, the Customer is not entitled to live support. Inquiries will be answered by factorymaker within a reasonable period of time. If possible, factorymaker will respond to Customer inquiries within one business day (24 hours). factorymaker will endeavor to respond to urgent inquiries without delay.

8.5. The Customer shall support factorymaker in the diagnosis and rectification of an error by providing the necessary information and documents.

9. Responsibility and liability

9.1. The provision of Contractual Services by factorymaker is purely a service activity. Therefore, no success is owed with regard to the objectives and results aimed for by the Contractual Services. factorymaker assumes no liability for the correctness, up-to-dateness and completeness of the Results. Nor for any consequential damages. The Customer is therefore solely responsible for critically examining the content and assessing it on its own responsibility.

9.2. factorymaker shall only be liable for its own fault, as well as for the fault of its legal representatives, executives and simple vicarious agents, in accordance with the following provisions.

9.3. If the Customer suffers damage as a result of the free use of the Contractual Services (e.g., during a free trial period), factorymaker shall only be liable to the extent that the damage was caused by the contractual use of the Contractual Services in question and only in the event of intent (including fraudulent intent) and gross negligence on the part of factorymaker or its legal representatives, executives or simple vicarious agents.

9.4. Within the scope of the Customer’s paid use of the Contractual Services, factorymaker is liable without limitation for intent and gross negligence, including that of its legal representatives, executives and ordinary vicarious agents. However, in the event of a slightly negligent breach of an obligation that the Customer could rely on and whose fulfillment is essential for the proper execution of the Contract (so-called cardinal obligation), factorymaker’s liability is limited to the foreseeable damages that are typical for this type of contract. Otherwise, liability for damages caused by slight negligence is excluded.

9.5. In cases of liability for slight negligence, factorymaker’s liability is further limited to the amount of the order amount stated in the Offer. In the case of contracts for the provision of recurring services (e.g. subscription), the annual fee is deemed to be the limit per calendar year.

9.6. Any (slightly negligent) liability for loss of profit, indirect damage and/or consequential damage is excluded.

9.7. Liability for data loss or data destruction shall be limited to the typical restoration costs that would have been incurred if the Customer had made regular backup copies in accordance with the Contract and the risks involved.

9.8. Liability for intent (including fraudulent intent), for personal injury and under the Product Liability Act shall remain unaffected by the above provisions.

9.9. The above provisions shall also apply in favor of factorymaker’s employees.

9.10. The Customer’s claims for damages expire six months after knowledge of the damage and the damaging party, but no later than two years after factorymaker’s conduct giving rise to liability.

9.11. The use of the Software is at the Customer’s own risk. factorymaker shall not be liable for any loss or damage that may arise from reliance on the Results generated by the Software.

9.12. The Customer shall fully indemnify and hold factorymaker harmless with respect to any claims by third parties that are attributable to a breach of the Customer’s obligations to factorymaker.

10. Warranty

10.1. According to the current state of the art, there is no procedure that can guarantee that the Software is free of errors. Consequently, factorymaker cannot guarantee that the Software or the underlying technology is completely error-free.

10.2. factorymaker does not warrant that the Contractual Services and Results have the required properties or that they are suitable for specific applications intended by the Customer.

10.3. The Contractual Services of factorymaker are created by experienced experts according to the state of the art. factorymaker reserves the right to make changes to the content, provided that they do not fundamentally change the nature of the respective Contractual Services, as well as to replace individual Contractual Services, unless specifically agreed otherwise. Such changes therefore do not result in the Contractual Service being defective.

10.4. The Customer is obligated to notify factorymaker in writing without delay, at the latest within one week, of any errors that occur during use of the Software. An error exists if the Software does not fulfill the functions specified in the Contract, delivers incorrect Results, or otherwise does not function properly, so that the use of the Software is impossible or significantly restricted. factorymaker will localize, analyze, and correct errors reported by the Customer or identified by factorymaker during the operation of the Software within a reasonable period of time.

10.5. factorymaker shall not be responsible for the accuracy of Results if these were specified or approved by the Customer. If a defect is exclusively due to incorrect or incomplete information, inadequate cooperation and incorrect operation by the Customer (e.g. due to insufficient installation of updates), the Customer shall have no warranty claims.

10.6. The application of § 924 ABGB is excluded.

11. Terms of payment

11.1. The fee to be paid by the Customer (including usage fees for the Software) is based on the prices agreed in the Offer and otherwise on factorymaker’s current price list. Unless expressly stated otherwise, all prices are exclusive of statutory VAT. Billing shall be carried out in advance for the billing periods agreed in the Offer (e.g. quarterly, semi-annually or annually).

11.2. In the absence of a written agreement to the contrary, any remuneration owed shall be due for payment within 14 days of receipt of the invoice and without deduction.

11.3. After order confirmation, factorymaker reserves the right to begin providing the Contractual Services only after receipt of the first payment.

11.4. factorymaker is entitled to reduce the agreed fee once per calendar year in accordance with the provisions of section 1.4 to increase the fee.

11.5. The Customer is not entitled to offset counterclaims against factorymaker’s claims unless such counterclaims have been established by a court or recognized in writing by factorymaker.

11.6. If factorymaker expands its range of services or offers new services for new Customers at different conditions, existing Customers shall not be entitled to use the Software with the expanded scope of services or at the new conditions.

12. Default of payment by the Customer

12.1. Notwithstanding the statutory consequences of default (e.g., default interest, § 456 UGB), factorymaker is entitled to demand payment for all Contractual Services and partial Contractual Services already provided to the Customer in the event of default by the Customer. In addition, factorymaker is no longer obligated to provide further Contractual Services until the outstanding amount has been paid and has the right to block the Customer Account until the outstanding amounts have been paid in full.

12.2. In addition, factorymaker is entitled to lump-sum collection costs of EUR 40.00 per collected invoice in accordance with § 458 UGB. If the collection costs exceed this amount (in particular if a collection agency or lawyer is involved), § 1333 (2) ABGB applies.

13. Contract duration and termination

13.1. The contract is concluded for the period specified in the Offer and can be terminated in writing by the Parties subject to a notice period of three (3) months to the end of the agreed contract term. If the Contract is not terminated at the end of the agreed term as described in the previous sentence, the term shall be extended by a period corresponding to the agreed term without any further action on the part of the Parties.

13.2. If the Customer has taken advantage of an extension of the retrievability of the results on the software in accordance with point 4.4 of these GTC and the agreed period has not yet expired at the time of termination, the results shall remain retrievable beyond the time of termination until the end of the agreed period.

13.3. The right of the Parties to extraordinary termination for good cause remains unaffected.

13.4. The free use of the Software (e.g. during a free trial period) can be terminated by either Party at any time without notice.

14. Naming the Customer as a reference

14.1. The Customer grants factorymaker the right to use the Customer’s name together with a description of the Contractual Services covered by the contractual relationship for illustration and advertising purposes in both print and electronic media, including by adding verbatim quotations and using the Customer logo, and to name the Customer as a reference customer in the context of commercial activities.

14.2. Consent to be named as a reference customer can be revoked at any time. The revocation must be made in writing. If it is not possible to reverse any publications that have already been made for technical or practical reasons (e.g. publication in a print medium that has already taken place) after receipt of the declaration of revocation, the Customer cannot derive any claims against factorymaker from this.

15. Secrecy, confidentiality

15.1. The Parties are obliged to treat all Confidential Information which they mutually disclose to each other in the course of the performance of the Contract as confidential in accordance with the following provisions.

15.2. “Confidential Information” means (a) all technical and business information relating to business information, accounting information, financials, general ledger or journal data and financial projections, customers, marketing, production, costs, profit and margin information and current or future business plans and models, proprietary ideas, patentable ideas and/or trade secrets, existing and/or planned products and services, research and development, regardless of whether such information is designated as confidential at the time of disclosure; (b) all product information of factorymaker’s Services and data transmitted via the Services; and (c) other confidential and/or sensitive information that is marked as confidential before or after transmission to the other Party. Confidential Information shall not include information that (i) is in the possession of one Party prior to receiving it from the other Party; (ii) is or becomes publicly known without breach of these GTC; (iii) is independently developed by the other Party; or (iv) comes from another source that has lawfully disclosed it without any obligation of confidentiality.

15.3. The Parties may only use the Confidential Information for the agreed contractual purpose and may not disclose it to third parties. Either Party may disclose the Confidential Information to third parties if required by law, provided that the other Party is promptly notified in writing of the request prior to disclosure (to the extent permitted by law).

15.4. Without prejudice to the obligations arising from Contracts concluded between the Parties, neither Party shall be obliged to disclose or make available Confidential Information to the other Party.

15.5. The Parties recognize that the Confidential Information represents a special asset for each Party that must be protected with the utmost care. Therefore, the Parties agree that they will not disclose, use, exploit or otherwise utilize the Confidential Information disclosed by the other Party for any purpose other than the purpose of the Agreement. The Parties shall limit the disclosure of Confidential Information within their own organization to those officers, contractors and/or employees who have a need to know and shall not disclose Confidential Information to any third party, other than to a third party subject to a duty of confidentiality, without the prior written consent of the other Party. Prior to disclosure, each Party shall ensure that the recipients are obliged to protect the Confidential Information under the conditions corresponding to the protection of these GTC. Upon request, the Parties shall provide each other with a complete and updated list of all such recipients. The Parties shall take reasonable measures to maintain the secrecy of the Confidential Information and to prevent its disclosure and/or unauthorized use.

15.6. Each Party shall immediately notify the other Party of any actual or suspected unauthorized use or disclosure of Confidential Information. If a Party discloses Confidential Information in breach of these GTC, it shall notify the other Party in writing immediately upon discovery of the breach, but no later than 5 working days after the disclosure.

15.7. Notwithstanding their contractual obligations, the Parties shall not be liable for the accuracy or completeness of Confidential Information and make no representations in this regard.

15.8. Within 14 days of a written request and unless otherwise provided for in a Contract concluded between the Parties, all documents and other tangible objects containing or representing Confidential Information and all copies thereof shall be returned to the disclosing Party without delay or destroyed (with proof of destruction).

15.9. In particular, the Customer is obliged to maintain confidentiality with regard to all contents of the Software. Among other things, the Customer may not disclose access data (user names and passwords) to third parties.

15.10. The obligations arising from this point shall continue to apply after termination of the contractual relationship.

15.11. If factorymaker receives non-personal data from the Customer (e.g., performance parameters, other purely technical information) in the course of the use of the Software and/or Other Services by the Customer or otherwise in the course of the performance of the Contract, factorymaker may process and use this data for an unlimited period of time (e.g., for the further development and improvement of the Software).

The preceding paragraph applies accordingly to such data that is anonymized or pseudonymized by factorymaker after receipt in such a way that it is not personal data.

16. Choice of law, place of performance, place of jurisdiction

16.1. All disputes between factorymaker and its Customers shall be governed exclusively by Austrian law, excluding the UN Convention on Contracts for the International Sale of Goods and the conflict of laws rules of private international law.

16.2. For all disputes between factorymaker and its Customers, the Parties agree that the court with subject-matter jurisdiction for Vienna shall have exclusive jurisdiction.

16.3. Unless otherwise agreed in writing, the place of performance for factorymaker’s Contractual Services shall be its registered office.

17. Final provisions

17.1. Legally relevant declarations and notifications to be made after conclusion of the Contract must be made in writing to be effective, whereby it is agreed that e-mails also comply with this written form requirement.

17.2. Each Party shall bear its own taxes, duties or fees arising from the contractual relationship.

17.3. Amendments, supplements and ancillary agreements to these GTC as agreed by the Parties must be made in writing to be effective (e-mail is sufficient). This also applies to any agreement to deviate from this formal requirement. In the event of contradictions between these GTC and deviating written agreements between the Parties, the provisions of the deviating agreements shall take precedence.

17.4. Should individual provisions of these GTC be or become invalid, this shall not affect the remaining content of the GTC. The invalid provision shall be replaced by a valid provision that is legally valid and comes closest to the economic intent of the Parties.

17.5. Unless otherwise stipulated in these GTC, the provisions and rights arising from these GTC may not be passed on or assigned to third parties without the written consent of the other contracting Party.

17.6. A “third party” within the meaning of these GTC is any natural or legal person who is different from the parties in the legal sense, even if legal and/or economic relationships should exist with such a person.