between

respio GmbH, Konrad-Zuse-Platz 11, 81829 Munich, mail@respio.com, entered in the commercial register of the Munich District Court under HRB 294408, represented by Sebastian Blum, VAT registration number: DE369205391

- hereinafter referred to as “provider” -

and

the aforementioned customer

- hereinafter referred to as “customer” -

are concluded.

(1) For the business relationship between the provider and the customer, the following General Terms and Conditions apply exclusively in the version valid at the time of the order. Deviating general terms and conditions of the customer will not be recognized, unless the provider expressly agrees to their validity in writing.

(2) The customer is a consumer insofar as the purpose of using the cloud software for the guided creation and execution of interval hypoxia-hyperoxia training (hereinafter “software”) cannot be predominantly attributed to his commercial or self-employed professional activity. In contrast, an entrepreneur is any natural or legal person or partnership with legal capacity that acts in the course of its commercial or self-employed professional activity when concluding the contract.

(1) The customer can select a product from the provider's range and submit a binding request to conclude a contract for the software by clicking on the “Order now” button. The customer can view and edit the data at any time before submitting the order. However, the request can only be submitted and transmitted if the customer has accepted these contractual terms and conditions by clicking on the “Accept terms of use” button and has thus included them in his request.

(2) The provider then sends the customer an automatic confirmation of receipt by e-mail, in which the customer's order is listed again. The automatic confirmation of receipt merely documents that the provider has received the customer's order and does not constitute acceptance of the request. The contract is only concluded when the Provider issues a declaration of acceptance, which is sent in a separate e-mail (order confirmation). In this e-mail or in a separate e-mail, the contract text (consisting of the order, GTC and order confirmation) is sent to the customer by us by e-mail (contract confirmation). The contract text is stored in compliance with data protection.

(3) The contract is concluded in German.

(1) Consumers have a statutory right of withdrawal when concluding a distance selling transaction, about which the provider provides information below in accordance with the statutory model. A sample withdrawal form can be found in paragraph (2).

You have the right to cancel this contract within fourteen days without giving any reason.

The cancellation period will expire after 14 days from the day of the conclusion of the contract or the receipt of a proper cancellation policy.

To exercise your right of withdrawal, you must inform us of your decision to withdraw from this contract by means of a clear declaration (e.g. a letter sent by post, fax or e-mail). You can use the attached sample withdrawal form for this, but this is not mandatory.

To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right of withdrawal before the withdrawal period has expired.

If you withdraw from this contract, we shall reimburse to you all payments received from you without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this contract. For this repayment, we will use the same means of payment that you used for the original transaction, unless expressly agreed otherwise with you; under no circumstances will you be charged for this repayment.

(2) The provider provides the following information on the model withdrawal form in accordance with the statutory regulation:

(If you wish to revoke the contract, please complete this form and return it to us.)

(*) Delete as applicable. Alternatively, you can use this Word template.

(1) The provider grants the customer the use of the latest version of the software via the internet by means of access through a browser.

(2) The provider warrants the functionality and availability of the software for the duration of the contractual relationship and will maintain it in a condition suitable for contractual use. The functional scope of the software and the conditions of use are set out in Appendix 1.

(3) The provider will send the customer access data in electronic form without undue delay after the contract is concluded.

(4) The provider can, without being obliged to do so, update or further develop the software at any time and, in particular, adapt it due to a change in the legal situation, technical developments or to improve IT security. In doing so, the provider shall take the customer's legitimate interests into account and inform the customer in good time of any necessary updates. In the event of a significant impairment of the customer's legitimate interests, the customer shall have an extraordinary right of termination.

(5) The Provider is not obliged to adapt the software to the Customer's individual needs or IT environment.

(6) The Provider shall maintain the software regularly and inform the Customer in good time of any restrictions associated with this. Maintenance shall be carried out regularly outside the Customer's usual business hours, unless compelling reasons require maintenance to be carried out at a different time.

(7) The provider shall make storage space available on its servers for the customer to store data and for the purpose of using the software. The provider shall ensure that the data can be accessed when using the software.

(8) The provider shall take appropriate measures to protect the data in line with the state of the art. However, the provider shall not be subject to any duty of safekeeping or custody with regard to the data. The customer shall be responsible for ensuring that the data is adequately secured.

(9) The customer shall remain the owner of the data stored on the provider's servers.

(1) The software shall not be physically transferred to the customer.

(2) The customer receives the latest version of the software for simple, i.e. non-sublicensable and non-transferrable, rights limited to the duration of the contract to use the software by accessing it via a browser in accordance with the contractual provisions.

(3) The customer may only use the software personally or in the context of his own business activities by his own personnel. Any further use of the software by the customer is not permitted.

The provider shall set up a support service for customer enquiries regarding software functions. Enquiries can be sent by email to support@respio.com. Inquiries will be processed in the order in which they are received.

(1) The provider guarantees an overall availability of the services of at least 99.00% per month at the transfer point. The transfer point is the router output of the provider's data center.

(2) Availability is defined as the customer's ability to use all the main functions of the software. Maintenance times and times of disruption, subject to the resolution time, are considered times of software availability. Times of insignificant disruptions are not taken into account when calculating availability. The provider's measuring instruments in the data center are decisive for proving availability.

(3) The customer shall report software malfunctions to support@respio.com without delay. Malfunction reporting and correction is guaranteed Monday through Friday (except for Bavarian holidays) between 9:00 a.m. and 5:00 p.m. (service hours).

(4) The provider shall also rectify serious faults (where use of the software as a whole or a main function of the software is not possible) outside of service hours within 2 hours of receipt of the fault report at the latest, provided that the report is made during service hours (rectification time). If it is foreseeable that the fault cannot be rectified within this period, the Provider shall inform the Customer of this without delay and state the expected time by which the period will be exceeded.

(5) Other significant disruptions (main or secondary software functions are disrupted but can be used; or other significant disruptions) will be remedied within 12 hours during service hours at the latest (remediation time).

(6) The Provider shall decide at its own discretion whether to remedy insignificant disruptions.

(7) The Customer is entitled to all statutory claims against the Provider.

(1) The customer must protect the access data transmitted to him from access by third parties and store it in accordance with the state of the art. The customer shall ensure that it is only used to the contractually agreed extent. The provider must be notified immediately of any unauthorized access.

(2) The customer is obliged not to store any data on the storage space provided whose use violates applicable law, official orders, rights of third parties or agreements with third parties.

(3) The customer shall check the data for viruses or other harmful components before storing or using the software and shall use state-of-the-art measures (e.g. virus protection programs) for this purpose.

(4) The customer is responsible for regularly making appropriate data backups.

(5) The customer is obliged to use a state-of-the-art browser.

(1) With regard to the granting of the use of the software and the provision of storage space, the warranty provisions of tenancy law (Sections 535 et seq. BGB) shall apply.

(2) The customer must notify the provider of any defects without delay.

(3) The warranty for only insignificant reductions in the suitability of the service is excluded. Strict liability in accordance with § 536a para. 1 BGB for defects that already existed at the time of the conclusion of the contract is excluded.

(1) The parties shall have unlimited liability in the event of intent, gross negligence or culpable injury to life, limb or health.

(2) Notwithstanding the cases of unlimited liability according to § 10 (1), the parties shall only be liable to each other in the event of a slightly negligent breach of duty if essential contractual obligations are breached, i.e. obligations whose fulfillment is essential to the proper execution of the contract or whose violation endangers the achievement of the purpose of the contract and on whose compliance the other party may regularly rely, but limited to the foreseeable, contract-typical damage at the time of the conclusion of the contract.

(3) The above limitations of liability do not apply to liability under the Product Liability Act or within the scope of guarantees assumed in writing by one party.

(4) § 10 shall also apply for the benefit of employees, representatives and organs of the parties.

(1) The Provider warrants that the software does not infringe any rights of third parties. The Provider shall indemnify the Customer against all claims of third parties for infringement of industrial property rights in connection with the contractual use of the software at the first request and shall reimburse the Customer for the costs of appropriate legal action. The customer shall immediately inform the provider of any claims asserted against him by third parties as a result of the contractual use of the software and shall provide him with all necessary powers of attorney and authorizations to defend the claims.

(2) The customer warrants that the content and data stored on the provider's servers and the provider's use and provision of such content and data do not violate applicable law, official orders, the rights of third parties or agreements with third parties. The customer shall indemnify the provider against claims asserted by third parties on the basis of a violation of this clause upon first request.

The parties shall agree the fee and the payment terms in an individual contract.

(1) The contract is concluded for an indefinite period.

(2) The contract may be terminated by either party with a notice period of one month to the end of the month.

(3) The right to terminate the contract without notice for good cause remains unaffected. Termination must be in writing in accordance with § 126b BGB. This means that the customer can also terminate the contract by email to mail@respio.com.

(4) The provider shall provide the customer with reasonable support in backing up the data at the provider's own expense after termination of the contract.

(5) The provider shall irretrievably delete all of the customer's data remaining on its servers 30 days after the end of the contractual relationship. There is no right of retention or lien on the data in favor of the provider.

(1) The parties shall comply with the data protection provisions applicable to them.

(2) If the customer is an entrepreneur within the meaning of § 1 (2) and if and to the extent that the provider has access to the customer's personal data in the course of providing the service, the parties will conclude a corresponding data processing agreement (DPA) before the start of processing and attach it to this contract. In this case, the provider will process the corresponding personal data solely in accordance with the provisions set out therein and the instructions of the customer.

(3) The provider is obliged to maintain confidentiality regarding all confidential information (including business secrets) that it learns in connection with this contract and its execution, and not to disclose, pass on or otherwise use this information to third parties. Confidential information is information that is marked as confidential or whose confidentiality is evident from the circumstances, regardless of whether it has been communicated in written, electronic, embodied or oral form. The confidentiality obligation does not apply if the provider is legally obliged to disclose the confidential information or is obliged to do so by a final and legally binding decision of an authority or court.

(1) Should individual provisions of this contract be invalid or unenforceable, the validity of the remaining provisions shall remain unaffected. The parties shall replace such provisions with valid and enforceable provisions that most closely reflect the meaning and economic purpose of the contract as well as the intentions of the parties at the time of its conclusion. The same shall apply in the event of a contractual gap.

(2) There are no verbal or written ancillary agreements to this contract. Amendments to this agreement and its appendices must be made in writing.

(3) This agreement is subject to German law, excluding the conflict of laws provisions and the United Nations Convention on Contracts for the International Sale of Goods dated April 11, 1980 (UN Sales Convention).

(4) The exclusive place of jurisdiction for all disputes arising from or in connection with this agreement is Munich.