General Terms and Conditions of Delivery and Use
General Terms and Conditions of Delivery and Use
of nevisQ GmbH, Dennewartstraße 25-27, D-52068 Aachen, Germany
Version 1.0, Status 29.01.2021
1. scope of application
These General Terms and Conditions of Delivery and Use (hereinafter “GTCU”) shall apply to all deliveries and services of nevisQ GmbH (“nevisQ”). The ALB shall apply exclusively. nevisQ expressly rejects any terms and conditions of the customer that conflict with or deviate from the ALB. They shall only apply if nevisQ has agreed to their validity in writing.
nevisQ shall offer its services exclusively to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB) and shall be entitled to demand corresponding evidence from the customer at any time.
2 Offer and conclusion of contract, subject matter of contract
The subject matter of the contract is the provision of the product hardware as well as software embedded in the product hardware, if applicable with cloud connection, as well as, if applicable, the installation of the product hardware at the customer’s premises, in addition, if applicable, the temporary granting of an access right to the customer portal provided by nevisQ, which includes the customer front end as well as access to the back end by means of an API. Further details are provided in the product description valid at the time of the conclusion of the contract. If necessary, the parties shall conclude a separate agreement on data protection aspects.
The conclusion of the contract shall take place in the form of a written offer including these GTCS. The offer shall be submitted by nevisQ and accepted by the customer. A binding contract shall be concluded with the express order confirmation by nevisQ after acceptance of the offer or with the first act of performance. Unless expressly stated otherwise in the offer, offers made by nevisQ are non-binding and subject to change.
The customer shall be solely responsible for the correctness of all information provided in connection with the order, including room dimensions and information on the alarm unit. The customer is aware that the information provided by him is the basis of the offer and is not verified by nevisQ. Should deviations arise subsequently that cause additional costs, the customer shall bear these costs.
3. transfer and installation of the product hardware
The product hardware (for example room sensor, bed sensor, baseboards, base stations) specified in more detail in the order confirmation shall be sold and delivered by nevisQ to the customer. Section 8 shall apply to the warranty.
If and to the extent commissioned by the customer and included in the offer, the Hardware shall be installed and put into operation by nevisQ or a third party commissioned by nevisQ in the rooms provided for this purpose. The designated rooms shall be determined between the parties with the order confirmation. Subsequent changes must be individually agreed between the parties. For this purpose, the customer shall grant nevisQ or the third party commissioned by nevisQ access to all rooms required for this purpose and shall support nevisQ or the third party commissioned by nevisQ in the installation to the best of its ability. This includes, in particular, clearance of the rooms in question by the respective occupants, ensuring the mobility of furniture, sufficient cleanliness and the completion of construction work prior to the start of the work. If necessary, access data to the WLAN must also be provided. Completion of the installation and its acceptance (see item 4) shall take place with the commissioning. The customer is aware that the locations of the base stations of the room sensor in the room depend on external conditions and that he therefore has only a limited right of choice.
After commissioning, the customer may receive free instruction in the operation and functionality of the product, in addition to the instructional videos or user manual provided.
If the customer installs the product hardware itself, nevisQ shall not assume any liability for functional limitations that are attributable to faulty installation. nevisQ shall offer support services in this context against separate remuneration, if applicable.
4 Acceptance of the installation
Insofar as nevisQ or a third party commissioned by nevisQ installs the product hardware, the installation services shall be subject to acceptance within the meaning of Section 640 of the German Civil Code (BGB). nevisQ shall inform the customer in text form (by e-mail) after completion of the installation that the installation is ready for acceptance. The customer shall then be obligated to accept the installation without delay, but no later than two weeks after being informed about the provision. After acceptance has taken place, the Customer shall commission the installation.
As a rule, the parties shall prepare an acceptance report to be signed by both parties. Insofar as defects are identified during acceptance, these shall be noted in the acceptance report. The installation shall be deemed to have been accepted when the acceptance report is signed by the customer or the customer’s employee assigned to the acceptance. The same shall apply if the customer puts the product hardware into operation without an express declaration of acceptance or does not comment on the acceptance within two weeks after being informed about the provision.
5 Granting of rights, scope of use
Unless expressly agreed otherwise, nevisQ shall grant the customer a simple, non-transferable right to use the provided software for the intended use in accordance with the offer. The transfer of source code shall not be owed, unless otherwise provided for in any applicable open source licenses (see Section 5.3 below).
Copies of the software for the purpose of proper data backup are part of the intended use. The Customer shall not be entitled to make further copies of the Software. The Customer shall not be entitled to make any changes or other processing and redesigns to the Software, to reverse engineer, decompile or disassemble the Software, unless this is expressly permitted by law or by contract.
The provided software may contain components that are subject to so-called open source licenses that meet the conditions of the open source definition of the Open Source Initiative (as of 2007) (available at https://opensource.org/osd). With regard to such components, the Customer may acquire further rights of use from the respective authors and the respective license conditions. A list of the corresponding components together with applicable licenses and further obligatory information is available on the nevisCura portal, at http://www.nevisq.com/license, in the user manual or upon request from nevisQ.
6. access to the customer portal
Depending on the scope of services according to the offer, the Customer shall be granted access to the Customer Portal.
The Customer Portal shall be made available at the router exit of the service center in which it is hosted. Regardless of the number of activated rooms, access to the Customer Portal shall exist for the duration of this Agreement. The Customer Portal can be used to activate or deactivate individual rooms in which the Product hardware is installed during the term of this Agreement. In addition, rooms can be booked. For the installation of Product Hardware in new rooms, Sections 3 and 4 shall apply, if applicable.
To access the Customer Portal, Customer will be required to create an account with a user name and password (collectively, “Access Data”). The Customer shall keep its Access Data secret and inform nevisQ immediately as soon as it is suspected that unauthorized third parties have gained access to the Access Data. The customer shall have the right to create additional users in the system with user names and passwords.
As of acceptance of the installation and for the term of this Agreement, the Customer shall be granted the right to access the Customer Portal in its most current version and the data presented there via the Internet and to evaluate and use the data for its own purposes. The Customer is aware that current data is only made available for activated rooms.
The customer does not acquire any rights of use under copyright law to the customer portal, but only the access rights described in this contract.
7.Availability of the Customer Portal
The availability of the backend is 99.0% per calendar quarter, whereby the availability is measured as follows:
% Availability = ( [G] – [A] ) / [G] * 100
G = Total hours of uptime
A = Total hours of downtime
Downtime is those times when the customer portal is unavailable to the customer. Downtime does not include disruptions of public telephone and data networks (WLAN) for which nevisQ is not responsible and downtime due to maintenance work (repairs, installation of upgrades and updates). As a rule, nevisQ shall announce maintenance work in advance and, if possible, perform it at night.
The customer is aware that the customer portal is hosted on servers of third parties. nevisQ shall take all reasonable measures to ensure high availability. nevisQ shall not, however, assume any responsibility for damages resulting from downtimes that are necessary to maintain the usability of the customer portal or that are due to the conduct of the server operator. Restrictions and the prevention of use may also arise from other circumstances beyond the control of nevisQ. These can be, for example, impairments due to actions of third parties whose behavior is beyond the control of nevisQ, technical conditions of the Internet and force majeure. In addition, the hardware and software used by the customer in his system may affect the performance of the customer portal. The performance of nevisQ shall be deemed to be in accordance with the contract despite such impairments.
The customer shall inform nevisQ immediately of any hindrance to use or other impairment of the use of the customer portal in as much detail as possible. nevisQ shall provide a ticket system for this purpose, which the customer shall use. If the customer does not inform nevisQ immediately about impairments, § 536c BGB shall apply.
nevisQ warrants that the product provided, when used in accordance with the contract, shall comply with the agreed performance description and shall not be afflicted with defects that nullify or not insignificantly reduce its suitability. Special agreements regarding the properties of the software or product hardware do not constitute guarantees of quality or durability.
Data transmission within the product may also depend on the performance of third parties over which nevisQ has no influence. Therefore, nevisQ shall not assume any warranty for the data transmission via the networks operated by third parties.
The prerequisite for warranty claims is the reproducibility or detectability of the defects.
The customer shall report defects using the ticket system provided by nevisQ, if possible, stating the information known to it and useful for their detection as well as the exact nature of the malfunction. The customer shall then receive a confirmation e-mail about the time and content of the error message. The customer shall check the confirmation e-mail immediately upon receipt and report any errors without delay. The customer shall take reasonable measures to facilitate the determination of the defects and their causes.
Insofar as a defect exists, nevisQ shall be entitled at its discretion to subsequent performance in the form of rectification of the defect or delivery of a new defect-free item or a defect-free software version. Replaced parts shall become the property of nevisQ.
If nevisQ fails to fulfill its obligation to remedy the defect within a reasonable period of time or if a remedy fails despite repeated attempts, the customer shall be entitled to demand a reasonable reduction of the remuneration (abatement) or to rescind or terminate the contract. Further claims, in particular claims for reimbursement of expenses or damages due to defects or consequential damages, shall only exist within the scope of the provisions of Section 11.
Liability for guarantees of quality or durability as well as liability in the event of fraudulent concealment of defects, intent, gross negligence and injury to life, limb or health shall not be affected by the above provisions (in particular paragraph 7). In these cases, the statutory provisions or warranty periods shall apply.
In the event that the Software provided infringes third-party rights, nevisQ shall have the right to (a) provide the Customer with a workaround that circumvents the infringement and does not significantly restrict the functionality of the product, or (b) replace the Software in question, including the affected device if applicable, and provide it anew. If nevisQ is unable to remedy the infringement even after the customer has set a reasonable deadline twice, the customer may rescind the contract and/or demand compensation for the damage incurred within the scope of the provisions in Section 11.
9 Obligations of the customer to cooperate
The conditions of use for hardware and software shall result from the service description in accordance with the order confirmation. nevisQ shall be released from its obligations under the contract, in particular from its warranty obligation, as long as the customer fails to create the conditions of use stipulated in the contract.
The customer shall be obligated to support nevisQ to a reasonable extent in the performance of the service and to create in its sphere of operation all conditions necessary for the proper execution of the order. The customer shall provide nevisQ with all necessary documents and information in a complete and timely manner.
Delays due to the failure to provide or late provision of necessary cooperation services by the customer shall be borne by the customer.
The customer is aware that nevisQ is partially dependent on advance performance and supply by third parties in the provision of services. Insofar as nevisQ can demonstrate that a delay has arisen due to delayed or non-existent performance or supply by third parties, such delays shall not be at the expense of nevisQ.
10 Remuneration and terms of payment
The remuneration to be paid by the customer as well as the terms of payment shall result from the order confirmation. Invoices shall be paid immediately unless expressly agreed otherwise.
The remuneration to be paid by the customer as well as the terms of payment shall be set forth in the order confirmation. Unless expressly agreed otherwise, invoices shall be paid without delay.
Additional services of nevisQ that are not part of the contract and are additionally ordered by the customer shall be charged in accordance with nevisQ’s current price list at the time of the order confirmation.
Notwithstanding any other rights of nevisQ, nevisQ shall be entitled in the event of default of payment by the customer to withhold any outstanding delivery or service based on the contract or other similar contracts from the business relationship with the customer until the invoice amount has been paid in full.
The customer shall only be entitled to set-off rights if its counterclaims have been legally established, are undisputed or recognized by nevisQ. This shall not apply to counterclaims of the customer arising from the same contractual relationship. The customer shall only be entitled to a right of retention if it is based on the same contractual relationship.
Liability claims shall be governed by the statutory provisions and the following provisions.
Having said this, the following liability limits shall apply to nevisQ’s liability:
nevisQ shall be liable without limitation for claims based on injury to life, limb or health, based on statutory product liability and for damage caused intentionally, as well as for the absence or omission of a warranted characteristic.
For property damage and financial loss, liability shall be limited to EUR 500,000 per year.
Liability for loss of profit is excluded.
In all other respects, liability shall be limited to the damage typical for the circumstances governed by this contract and foreseeable at the time of conclusion of the contract.
The agreed specifications of the product shall not constitute a procurement guarantee or any other assurance of a characteristic.
The above provisions shall apply mutatis mutandis to nevisQ’s liability with regard to the reimbursement of futile expenses.
The customer itself shall be responsible for proper backup of the data used by it in the customer portal. nevisQ shall not be liable for damages that would have been avoided if the customer had properly backed up the aforementioned data. Data protection aspects relating to personal data shall be regulated separately.
The monitoring function of the product is not suitable to replace personal care and monitoring by nursing staff, but only serves to support them. For cases in which damage could have been avoided by proper and regular use of the care personnel, liability of nevisQ is excluded.
12. force majeure
The monitoring function of the product is not suitable to replace the personal care and supervision by the nursing staff, but only serves to support them. Liability on the part of nevisQ is excluded for cases in which damage could have been prevented by proper and regular deployment of the care personnel.
13. deadlines and dates
Agreed deadlines and dates are always non-binding unless expressly agreed otherwise.
The start of the stated delivery period shall be subject to the clarification of all issues. If down payments by the customer have been agreed, the delivery period shall not begin until the down payment has been received. Compliance with nevisQ’s delivery obligation shall require the timely and proper fulfillment of the customer’s obligations.
Claims for damages by the customer due to delay in performance shall only exist within the scope of the provision in Section 11.
14 Contractual term of the software license and termination
Depending on the scope of services in the order confirmation, the Customer shall be entitled to access the Customer Portal for the duration indicated in the order confirmation. The contract may be terminated with two weeks’ notice to the end of the agreed contract term. If the contract is not terminated with two weeks’ notice to the end of the agreed contract term, it shall be automatically extended by the period of the contract term agreed at the beginning. At the end of the contract, there is no longer any access to the customer portal.
The right to terminate for good cause shall remain unaffected. The opening of insolvency proceedings against the Customer’s assets or the non-opening of insolvency proceedings applied for due to lack of assets shall constitute good cause within the meaning of this Section 14.2.
Terminations and reactivations of individual rooms in which the Product Hardware is installed may be made via the Customer Portal. Termination of this Agreement must be in writing, whereby e-mail does not satisfy this written form requirement.
15 Use of subcontractors
nevisQ may use subcontractors to provide the contractual services.
16 Confidentiality, Data Protection
The contractual partners undertake to treat all confidential information of the respective other contractual partner obtained in the course of the negotiation and performance of the contract as confidential for an unlimited period of time and to use it only in the course of the performance of the contract.
The obligation to treat as confidential shall not apply to information which was already known to the respective other party beforehand without any obligation to maintain confidentiality or which is or becomes generally known without the respective party being responsible for this or which is lawfully disclosed to the respective party by a third party without any obligation to maintain confidentiality or which has demonstrably been independently developed by the respective party or which has been released in writing by the other party for disclosure.
The customer shall ensure that nevisQ is informed of all relevant facts beyond the statutory provisions, knowledge of which is necessary for nevisQ to duly perform the contract.
17. final provisions
Rights and obligations under the agreement may only be transferred to third parties with the express consent of nevisQ.
If the customer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction shall be nevisQ’s place of business; nevisQ shall, however, also be entitled to sue the customer at the court of his place of residence.
The law of the Federal Republic of Germany shall apply; the applicability of the UN Convention on Contracts for the International Sale of Goods and German private international law shall be excluded.
If individual provisions of these GTCS are or become void or ineffective, the validity of the remaining provisions shall not be affected. The invalid provision shall be replaced by a provision which comes closest to the economic objective of the parties.
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