Terms of Service

1. Scope & Business Customers Only

These Terms apply to all contracts between us and our customers for the Services. Our Services are offered exclusively to entrepreneurs within the meaning of §14 of the German Civil Code (BGB), i.e. natural or legal persons or partnerships with legal capacity who act in the exercise of their commercial or self-employed professional activity, as well as to legal entities under public law and special funds under public law. We do not offer the Services to consumers (§13 BGB). By creating an account or placing an order, you confirm that you act as an entrepreneur and, if you act for an organisation, that you are authorised to bind it.

Conflicting or deviating terms of the customer do not apply, even if we do not expressly object to them. Individual agreements made in writing with us (for example in an order form) take precedence over these Terms.

2. Conclusion of Contract

Presenting the Services on our website is not a binding offer. The contract is concluded when we confirm your registration or order (for example by activating your account or by sending an order confirmation) or when we begin to provide the Services. Where a free tier or trial is offered, the terms published at the time of sign-up apply to it, and these Terms apply to it unless stated otherwise. Registration requires accurate and complete information.

3. Services & Availability

We provide the Services as described on our website and in the documentation at the time of the contract conclusion, in the plan the customer selected (including plan limits such as device counts and data volumes). We may further develop and improve the Services, provided that the contractually agreed core functionality is not reduced to the customer's detriment without good reason.

We do not promise any specific availability. Unless a service level (SLA) has been agreed in a signed order form or separate agreement, we provide the Services on a best-effort basis and do not guarantee uninterrupted or error-free operation. We may carry out maintenance, updates and security fixes, which can temporarily limit or interrupt the Services; where reasonably possible we announce planned maintenance in advance. Interruptions caused by events outside our reasonable control (for example failures of public networks, third-party infrastructure or force majeure) are not a breach by us. Mandatory statutory warranty rights remain unaffected.

4. Customer Obligations

The customer shall in particular:

• keep account credentials, API keys and device provisioning tokens confidential, use multi-factor authentication where offered, and inform us without undue delay of any suspected misuse or security incident;
• use the Services only lawfully and not in a way that endangers the security, integrity or availability of the Services or other customers (for example no unauthorised load tests, no circumvention of plan limits or access controls, no attempts to access other customers' data);
• ensure it has the necessary rights to the firmware, artifacts and data it uploads or processes, and test firmware and deployment configurations thoroughly (for example on a staging or pilot group) before rolling them out to production devices, since the customer alone decides what is deployed to its devices;
• inform the affected individuals and obtain any consents or legal bases required for data of its own users, employees and device operators that it processes through the Services;
• maintain its own backups of firmware sources, signing keys and other data it needs, because the Services are not a backup or archiving service;
• not resell the Services or offer them to third parties as a standalone service, and not use them to build a directly competing product, without our prior written consent.

We may block access or restrict the Services if there is a concrete indication of a material breach of these obligations or a security risk, to the extent and for as long as necessary; we will inform the customer without undue delay and lift the restriction once the reason no longer applies.

5. Fees & Payment

Free plans are provided free of charge. For paid plans, the fees are those stated on our pricing page or in the order form at the time of ordering. All prices are net prices and exclude statutory value-added tax, which is added where applicable. Where the customer is an entrepreneur in another EU Member State and provides a valid VAT ID, the reverse-charge mechanism applies where legally required.

Paid plans are billed in advance per billing period (monthly or annually, as selected). Payment is processed by our payment service provider Stripe; you may be asked to store a payment method with it. Plan-based usage that exceeds the included limits may be charged as overage if the customer has enabled overage for its organisation; otherwise the limits apply as hard caps. If a plan is changed to a different paid plan during a billing period, price differences are charged or credited pro rata by our payment service provider.

If a payment fails, we will notify the customer and the payment may be retried. If the amount remains outstanding after a reasonable grace period and reminder, we may restrict paid features until payment is made. Our statutory right to claim default interest and to terminate for cause remains unaffected. Further details on cancellation, downgrades and refunds are in our Refund & Cancellation Policy.

6. Term & Termination

Contracts for paid plans run for the billing period selected (monthly or annual) and renew automatically for the same period unless cancelled. The customer may cancel at any time through the Stripe Customer Portal, which is reached from the console's billing section ("Manage billing & invoices"), or by contacting us; cancellation takes effect at the end of the current billing period unless the customer expressly requests an earlier end and we accept it. After the paid period ends, paid access ends and the organisation is deactivated; the customer can contact us for a data export within the export window below. Free plans can be ended by either party at any time; we will give reasonable notice where practicable.

The right of each party to terminate for good cause (§314 BGB) remains unaffected. Good cause exists in particular if the customer is in material breach of these Terms and does not remedy it within a reasonable period set by us (not required where setting a period is futile or the breach is so serious that continuing the contract is unreasonable), or if the customer is in default with payment for a significant period.

After termination, the customer's access ends. Customer Data can be exported until the end of the contract term and, on request, for a reasonable period afterwards (generally 30 days), after which we delete it in accordance with the Data Processing Agreement, subject to statutory retention duties.

7. Customer Data & Data Protection

The customer keeps all rights to the data, firmware artifacts and content it uploads or processes through the Services ("Customer Data"). The customer grants us the non-exclusive right to host, process and transmit Customer Data to the extent necessary to provide the Services.

Where we process personal data on behalf of the customer (for example device telemetry, device identifiers, user accounts of the customer's organisation, remote SSH session recordings and audit logs), the Data Processing Agreement (DPA) pursuant to Art. 28 GDPR forms part of these Terms and is concluded upon acceptance of these Terms. How we process personal data as a controller is described in our Privacy Policy.

8. Intellectual Property & Open Source

We and our licensors retain all rights in the Services, including software, branding, trademarks and documentation. The customer receives a non-exclusive, non-transferable right, limited to the term of the contract, to use the Services for its own internal business purposes in accordance with these Terms. Rights not expressly granted are reserved.

Certain OTA-Pulse components, including the device-side agent, are distributed as open-source software under the licence contained in the applicable source repository (the agent: Apache License 2.0). Your use of that code is governed by that licence, not by these Terms; mandatory provisions of the open-source licence prevail over these Terms for that code. The server and console are proprietary.

9. Confidentiality

Each party shall keep confidential all non-public information of the other party that is marked as confidential or is evidently confidential by its nature (in particular business, technical and security information, access credentials and Customer Data), shall use it only for the purposes of the contract and shall protect it with at least reasonable care. This does not apply to information that is or becomes public without breach, was already known to the recipient, is lawfully received from a third party, is independently developed, or must be disclosed by law or an authority's order (in which case the other party is informed, where lawful). The obligation continues for three years after the contract ends and, for Customer Data and trade secrets, for as long as they remain confidential.

10. Liability

Our liability for damages and for reimbursement of futile expenses, on whatever legal ground, is governed by the following provisions:

1. We are liable without limitation for damage caused by intent or gross negligence, for injury to life, body or health, under the Product Liability Act (Produkthaftungsgesetz), and to the extent we have given a guarantee or fraudulently concealed a defect.
2. In cases of slight negligence we are liable only for the breach of a material contractual obligation (Kardinalpflicht), i.e. an obligation whose fulfilment makes the proper performance of the contract possible in the first place and on whose compliance the customer may regularly rely. In this case our liability is limited to the foreseeable damage typical for this type of contract.
3. Any further liability for slight negligence is excluded.
4. For loss of data we are liable, within the limits of items 1 to 3, only to the extent the damage would not have occurred had the customer made regular, risk-appropriate backups of data it can reasonably back up itself.
5. The above limitations also apply to the personal liability of our employees, representatives and vicarious agents.
6. Mandatory statutory liability and the statutory rights of the customer not covered above remain unaffected. For services provided free of charge we are liable only for intent and gross negligence; item 1 remains unaffected.

11. Changes to These Terms

We may amend these Terms with effect for the future where there is a valid reason, for example changes in the law or case law, changes to the Services or technical developments, or the closing of regulatory or security gaps, and provided the amendment does not unreasonably disadvantage the customer. We will notify the customer of the amendment in text form (for example by email) at least six weeks before the planned effective date and point out the right to object and the consequences of silence.

The amendment is deemed accepted if the customer does not object in text form before the effective date. If the customer objects, the contract continues on the previous terms; in that case we may terminate the affected contract with effect at the end of the current billing period. Amendments to the main performance obligations or to the balance between performance and consideration to our advantage require the customer's express consent.

12. Governing Law & Venue

The law of the Federal Republic of Germany applies, excluding the UN Convention on Contracts for the International Sale of Goods (CISG) and the conflict-of-laws rules. If the customer is a merchant, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from or in connection with the contract is the location of our registered seat, currently [[TO BE FILLED: city of the registered seat (exclusive venue)]] (§38 ZPO). We are also entitled to sue at the customer's general place of jurisdiction. Mandatory statutory places of jurisdiction remain unaffected.

13. Language & Final Provisions

These Terms are provided in English, and the English version is binding. A German version may be provided for convenience; in case of discrepancies the English version prevails. Amendments and additions to the contract require text form. If any provision of these Terms is or becomes invalid or unenforceable, the remaining provisions stay in effect; the statutory provisions replace the invalid provision (§306 BGB).

14. Contact

Binary Black, Hindenburgstr. 75, 77830 Bühlertal, Germany. Email: binaryblack21@gmail.com. See also our Impressum.