1. Subject Matter and Formation of the Agreement
1.2 Via the App and the Cloud Services, the Facility Manager also offers services to the User. The Provider shall not assume any liability for these services.
2. Rights of use
2.2 The User shall be granted the right to reproduce the provided App to the extent that the respective reproduction is necessary for the use of the App by the User (e.g. when downloading, installing the App on the end device, loading the App into the working memory of the end device). The User is not entitled to reverse engineer, decompile or disassemble the program code of the App or to determine the source code in any other way or to use it for any purpose other than the contractual use of the App. § Section 69e UrhG remains unaffected.
2.3 The User is entitled to use the functionalities of the Cloud Service by means of the App, but does not receive any rights of use under copyright law to the software used by the Provider to provide the Cloud Service.
2.4 The above terms and conditions also apply to all updates/upgrades and program supplements for the app that are made available to the User for download via the Apple App Store or the Google Play Store, insofar as these are not the subject of a separate license agreement. In this case, only the provisions of the license terms applicable to the respective update/upgrade or program supplement shall apply. The User is obliged to install any updates/upgrades provided in order to keep the App up to date.
2.6 The User may make a copy of the App for backup purposes. The User is obligated to prevent unauthorized access by third parties to the backup copy and the App by taking appropriate precautions.
2.7 The User may not make any edits or changes to the App. Copyright notices, serial numbers, version numbers, trademarks or other identification features of the App may not be changed or removed by the User under any circumstances. The same applies to the suppression of the screen display of corresponding features.
2.8 The app and the cloud services may only be used for the agreed purposes.
3. Technical requirements
The App requires a current version of the Android operating system or the iOS operating system for Android end devices, unless otherwise communicated by the Provider. Although the Provider endeavors to adapt the App to changed operating system versions and new mobile end device variants and to make the App as well as the Cloud Services available on these end devices, the User has no claim to such an update. The user is responsible for checking and ensuring the suitability of the end device intended by him for the installation of the app with regard to the aforementioned technical requirements. In this regard, the operation of the app requires that the end device - even if the operating system version is complied with - can be connected to the app and the cloud service.
4. Scope of services of the app and the cloud services
4.2 The Software is available if the User is able to access the Software via the App and the response times of the Software when logging in and calling up essential functions are not less than two seconds. The ability to call up reports and the search function shall not be deemed to be essential functions This Software shall also be deemed to be unavailable if and as long as the Software has an error within the meaning of error classes 1 or 2 described below in Section 4.3.
4.3 Error messages of the User shall be qualified and prioritized according to the urgency of the error correction.
4.4 The Provider's on-call time for accepting reports of faults resulting from errors in the App or Cloud Services (i.e. defects) ("Fault Reports") is Monday - Friday (with the exception of public holidays in North Rhine-Westphalia) between 9:00 am to 4:00 pm.
4.5 Fault reports shall only be accepted via the HelpDesk specified in the App.
4.6 The respective response time shall commence from the time of receipt of a proper fault report. In calculating the response time, only hours that fall within the standby time pursuant to Section 4.4 shall be taken into account as a matter of principle.
4.7 The support services for troubleshooting for which the Provider is responsible do not include malfunctions that are not attributable to malfunctions of the cloud services or app, e.g.
* Malfunctions of systems of the User or third parties that affect the Software, e.g. servers that cannot be reached or long response times of servers that deliver content that is further processed by the Software;
* Malfunctions in the local software or hardware;
* Interference with the network infrastructure of the Internet;
* operating errors of the End Users.
4.8 The Provider is entitled to adapt the App and the Cloud Services to current technical developments, in particular with regard to new functions and to close security gaps, due to changes in the law, changes in jurisdiction and, within this framework, to change the technical properties and functionalities of the App and the Cloud Services. Insofar as such an adjustment could affect the legitimate interests of the User, the adjustment shall be announced to the Users in text form by sending a push message or by display in the App within a reasonable period of time prior to its implementation. Clause 13.2 shall apply.
5. Community rules
5.3 The User has no claim against the Provider for the provision of the Community and the Provider may deactivate it at any time without giving reasons.
6. Duties of cooperation of the user
6.1 When using the app, the user must exercise the due diligence required for use and check the results generated with the software to a reasonable extent before using it.
6.2 The User is obliged to keep all access data, such as his user name and password, safe and to protect them from access by third parties.
6.3 The User must ensure that the technical requirements to be fulfilled by the User in accordance with section 3 are met for the use of the app. In addition, the User must fulfill the technical requirements listed on the software platform.
6.4 The User shall support the Provider and the third parties commissioned by them in troubleshooting.
7. Smartphone key
7.1 The User can open house and apartment doors electronically via the app. To open the doors with the app, the User must use a compatible smartphone.
7.2 The functions of the app, in particular the smartphone key, may depend on factors outside the Provider's control (e.g. power supply and internet connection of the smart home control in the apartment). The provider makes no promises regarding the availability or functioning of this infrastructure.
7.3 Since it cannot be ensured at all times that the smartphone key is always available, in particular due to the aforementioned factors, the User is obliged to carry his conventional key with him at all times.
The User undertakes to pay the Provider the agreed monthly fee plus statutory VAT for the provision of the App and the Cloud Services, including the granting of storage space. Unless otherwise agreed, the fee is based on the price list of the Provider valid at the time of the conclusion of the contract.
9. Third-party offers
If the user makes use of an offer of an external partner accessible via the app, a contract is concluded directly with this partner. Such third-party offers are clearly marked on the software platform. The provider does not become a party to the contract and does not act as a representative of the user or the external partner.
10. Liability for defects; compensation
10.1 The Provider warrants the functional and operational readiness of the Cloud Service in accordance with the provisions of this Agreement.
10.2 In the event that services of the Provider are used by unauthorized third parties using the User's access data, the User shall be liable for any fees incurred as a result within the scope of liability under civil law until receipt of the customer order to change the access data or notification of the loss or theft, unless the User is not at fault for the access of the unauthorized third party.
10.3 The Provider is entitled to immediately block the Cloud Service if there is reasonable suspicion that the User is using the app and the Cloud Service unlawfully and/or infringing the rights of third parties. A reasonable suspicion of illegality and/or infringement of rights exists in particular if courts, authorities and/or other third parties inform the Provider thereof, stating facts that give rise to a concrete suspicion. The Provider shall notify the User of the block and the reason for it without delay. The block shall be lifted as soon as the suspicion has been allayed.
10.4 Claims for damages against the Provider are not limited if the Provider or its legal representatives or vicarious agents have acted with intent or gross negligence. The Provider shall only be liable for slight negligence, irrespective of the legal grounds and subject to Section 10.5, if one of the material contractual obligations has been breached by the Provider, its legal representatives or executives or vicarious agents. The Provider shall only be liable for foreseeable damage, the occurrence of which must typically be expected. Material contractual obligations are those obligations which form the basis of the contract, which were decisive for the conclusion of the contract and on the fulfillment of which the User may rely.
10.5 The Provider shall be liable without limitation for damages caused intentionally or negligently by the Provider, its legal representatives or vicarious agents arising from injury to life, limb or health, furthermore in the event of the assumption of a guarantee for the quality of an item and in the event of fraudulent concealment of a defect as well as in the event of liability under the Product Liability Act.
11. Special provisions for Apple App Store
To the extent the App is downloaded from the App Store of Apple Inc, One Apple Park Way, Cupertino, California, USA, 95014 ("Apple"), the following additional terms shall apply:
11.2 To the extent and insofar as maintenance or technical support is required by law, this shall be the sole obligation of the Provider and not Apple.
11.3 Use of the App is only permitted on an Apple product that the User owns or controls and to the extent that the App Store Terms and Conditions permit use, except that the App may also be accessed and used by other accounts associated with the Purchaser via family sharing or volume purchasing.
11.4 If the App fails to conform to any warranty given or any applicable warranty right, User may notify Apple and Apple will refund to User the purchase price, if any, for the App; provided further that, to the maximum extent permitted by applicable law, Apple makes no other warranties or guarantees with respect to the App; and any other claims, losses, liabilities, damages, costs or expenses attributable to a breach of any warranty shall be the sole responsibility of Provider.
11.5 The processing and assertion of any claims related to the App or the User's possession and/or use of the App shall be the sole responsibility of the Provider and not Apple. The same shall apply to the investigation, defense, settlement and discharge of third party claims for potential infringement of third party intellectual property rights. In this respect, such claims are to be asserted exclusively against the Provider and not Apple.
11.6 User represents and warrants that (i) it is located in a country that is not subject to a U.S. government embargo or has been designated by the U.S. government as a "terrorist supporting" country; and (ii) it is not on any U.S. government list of prohibited or restricted parties.
12. Duration and termination of the contract
12.1 The contract for the provision of the App and the Cloud Services shall commence with the User's first act of use. The contract has an indefinite term.
12.2 The contract for the use of the App and the Cloud Services can be terminated by the User at any time. The User may complete the termination by deactivating or deleting the App from his end device. The Provider is entitled to terminate the contract properly if a rental contract for a property exists between the User and the Provider and this ends. The termination shall take effect at the end of the term of the rental agreement for the property. 3.
The right of the User as well as of the Provider to terminate the contract without notice for good cause remains unaffected. In particular, the Provider is entitled to terminate without notice if the User fails to make due payments despite a reminder and the setting of a grace period or if the User violates the contractual provisions regarding the use of the cloud service. Termination without notice requires in any case that the other party is warned in writing and requested to eliminate the alleged reason for termination without notice within a reasonable period of time.
(4) Upon termination of the contractual relationship, the Provider shall immediately return to the User all data stored on the storage space allocated to the User. The data will be sent in a standard file format to the e-mail address provided by the user.
13. Messages and changes
In order to receive push messages or other notifications in the app, it is necessary for the user to set during the installation of the app that the app may send messages to the user. The User is obliged to log into the App at least once a month and check whether any messages are published in the App.
14. Data protection
15 Applicable law, place of jurisdiction
15.1 The law of the Federal Republic of Germany shall apply. In the case of consumers who do not conclude the contract for professional or commercial purposes, this choice of law shall only apply insofar as the protection granted is not withdrawn by mandatory provisions of the law of the state in which the consumer has his habitual residence. The provisions of the UN Convention on Contracts for the International Sale of Goods shall not apply.
15.2 If the User is a merchant within the meaning of the German Commercial Code (Handelsgesetzbuch) or a legal entity under public law or a special fund under public law or if the User has no general place of jurisdiction in the Federal Republic of Germany, the registered office of the Provider shall be agreed as the exclusive place of jurisdiction.
15.3 The Provider is obligated to inform the User that a corresponding online platform is provided by the European Commission with regard to the so-called online dispute resolution. The User can access this platform under the following link: https://ec.europa.eu/consumers/odr/. In this context, the provider is also obliged to provide the user with his e-mail address. This is: firstname.lastname@example.org.
15.4 The Provider does not participate in dispute resolution proceedings before a consumer arbitration board (according to VSBG).