GENERAL TERMS AND CONDITIONS
of safectory GmbH, Mußstr. 16, 96047 Bamberg (hereinafter referred to as safectory, lessor or seller) for the operation of an Asset-Tracking or FlowTrack® measuring system (hereinafter referred to as measuring system) including the leasing or sale of the sensor hardware required for the same (hereinafter referred to as sensor or sensors)
§1 Object of contract
(1) Object of contract shall be the operation of a measuring system comprising the devices listed in the order confirmation (sensors), elements and additional equipment with the properties and performance characteristics specified in the relevant documentation (“FlowTrack®” or Asset-Tracking) for the measurement of person flows or localisation of operating materials alternatively using radio signals within or outside buildings. For this purpose, the sensors must be installed in the customer’s premises or site. The programmes firmly stored in the sensors are meant only for the contractual operation of the measuring system. Every other use shall be ruled out. These service conditions (GTC/General Terms and Conditions) shall be valid for any services within the scope of FlowTrack® as well as Asset-Tracking.
Subject to the customer’s consent to the GTC and according to their regulations, safectory shall provide the following service (hereinafter referred to as “service”):
- Loan or sale of sensors according to the order confirmation
- Recording of presence information of active mobile devices or asset tags. When a sensor detects a mobile device or asset tag in the surroundings, it records its presence and if applicable, other parameters such as time stamp and length of stay.
- Access to this statistics data in edited and aggregated form through a website/web portal.
- The precise descriptions of the respective scope of service can be found in the order confirmation.
Unless otherwise agreed upon, the service for the business use shall be provided exclusively within the customer’s company.
(2) The transfer for use of the sensors in case of a loan shall take place for the agreed place of installation. If the customer wants to use the sensors at a different location, it must obtain prior, written consent from safectory. Safectory may refuse the consent only for a compelling reason. All direct expenses and consequential costs associated with a change of the place of installation shall be borne by the customer.
(3) Without prior, written consent of safectory, the customer shall not be authorised to transfer the use of the leased measuring system to third parties. § 540 para. 1 sentence 2 BGB [German Civil Code] shall not be applicable.
§2 Conclusion of the contract
All offers from safectory as well as the relevant documents shall be non-binding and non-obligatory. A contract shall come into existence only through the written order confirmation from safectory and shall comply exclusively with its content and the service agreements of the claimed service, the order as well as these General Terms and Conditions.
§3 Prerequisites for the use of the service
In order to offer the service, sensors must be installed in the premises. Under certain circumstances, a sensor requires a power connection. The sensors communicate partly via radio or by means of a mobile radio modem. If this is the case, mobile radio reception must be available at the selected places of installation.
For certain features of the service, safectory shall require a floor plan of the customer’s rooms and if applicable, further information at the time of conclusion of the contract. This must be provided to safectory.
§4 Term of the contract
(1) The contract of use shall have the fixed term as well as the date of commencement agreed upon in the order confirmation. The contractual relationship shall be extended after the expiry of the useful life agreed upon in the order confirmation by 12 (twelve) months at a time, unless the customer terminates in writing with a notice period of 3 (three) months before the end of the contract. The termination must be addressed to: safectory GmbH, Mußstr. 16, 96047 Bamberg.
(2) Unless otherwise agreed upon in writing in the individual case, the term of the contract as well as its extension according to para. (1) shall also be applicable for all devices, elements and additional equipment, by which the object of the contract shall later be extended.
(3) After the termination of a contract becomes effective, the customer can still access the statistics data through the web portal for 30 days. The customer can download and save these data records. New data records shall no longer be recorded and set during this period. After the expiry of this 30-day period, safectory shall no longer be obligated to have this data available and to publish it unless otherwise stipulated by the applicable data protection law. safectory must grant this post-contractual access only if the customer has fully met all obligations from the contract, particularly all payment obligations and, in case of leasing, the obligation to return all sensors.
(4) safectory’s right to terminate without notice for a compelling reason shall remain unaffected. safectory shall particularly be authorised to terminate the contract without notice for a compelling reason if a debit note is revoked or the direct debit procedure was impossible more than once for a reason that does not lie within the area of responsibility of the lessor.
(5) Numbers 14, 15, 16, 17, 18 and 20 shall remain applicable even beyond the termination or end of the contract.
§5 Delivery and installation
(1) safectory shall deliver the sensors by mail. The delivery details shall be specified in the order confirmation. Costs incurred for freight and logistics shall be borne by the customer.
(2) The installation of the sensors at a suitable and safe place shall be carried out by the customer according to the installation instructions in the documentation. Structural measures required for this, such as drilling of holes, must be executed by the customer on its own responsibility and at its own costs. safectory shall not be liable for failures, errors and restrictions of the service occurring due to improper installation or handling of the sensors, including theft and damage of the sensors by third parties, power cuts and failures or unavailability of the mobile radio network. If safectory should carry out the installation, this shall require an explicit agreement. The costs for this shall result from the respectively valid price list of safectory.
(3) If safectory should carry out the installation, safectory may use third parties as vicarious agents in fulfilling its contractual obligations. The contractual obligations of safectory shall remain unaffected by this.
§6 Deadlines and terms
(1) Dates for the commencement of the performance shall be binding only if safectory has confirmed these explicitly in writing and the customer has met all prerequisites within its area of influence for the execution of the services by safectory in time.
(2) If safectory’s performance is delayed, the customer shall be authorised for withdrawal only if safectory is responsible for the delay and a reasonable grace period provided by the customer for service provision has elapsed unsuccessfully.
(3) Unforeseeable and unavoidable events that do not fall within the area of influence and responsibility of safectory, particularly force majeure, labour disputes, official measures, failure of telecommunication connections or computer centres, shall release safectory from the obligation for timely performance for the duration of these events. safectory shall inform the customer about the occurrence of the disturbance or the event in a suitable way. If the disturbance or the event lasts longer than two weeks, both parties can withdraw from the contract deviating from § 6 para. 2.
§7 Prices and payment conditions
(1) All prices for safectory services that are valid at the time of conclusion of the contract shall result from the price lists valid at that time or the order forms of safectory, which shall be handed over to the customer at the time of conclusion of the contract or are attached to these General Terms and Conditions. All prices specified in the price lists or order forms shall be exclusive of the respectively applicable statutory VAT.
(2) In the order confirmation, the respective rate valid for the fixed scope of the contract shall be determined bindingly according to the price list valid at the beginning of the contract. In case of extension of additionally made service agreements beyond the fixed term of the contract, the prices shall be agreed upon according to the price list valid at the beginning of the extension.
(3) Possible refund claims of the customer, e.g. due to excess payments, double payments, etc. shall be credited to the customer’s billing account with safectory and shall, if possible, be offset with the next due receivable. Upon written demand of the customer, the refund shall be paid to a bank connection to be specified by the customer.
(4) Every invoice shall usually be due for payment 14 (fourteen) days from the date of invoice without deduction. First orders must basically be paid in advance. In case of cashless payment, fulfilment shall occur only when the payment amount has been finally credited to the bank account specified by safectory.
(5) If the customer gets into default of payment, safectory shall be authorised to demand default interests of 10 (ten) percent over the basic interest rate p. a. unless the customer proves that a default damage has not occurred or is significantly lower. The seller shall be authorised to assert a verifiably higher default damage.
(6) If the risk of lack of performance of the customer is recognisable for safectory after the conclusion of the contract, safectory shall be authorised to provide outstanding services only against advance payment or against a security deposit. If the advance payments or security deposits are not provided even after the expiry of a reasonable grace period of at least 2 (two) weeks, safectory can withdraw from the contract fully or partially. The assertion of further rights shall remain exclusively reserved for safectory.
(7) Drafts and cheques shall be accepted only after a special agreement and on account of performance, as well as free of cost and charge for safectory.
(8) The customer shall be authorised for offsetting only if its counter-claim is indisputably or legally determined.
(9) The customer shall be authorised to assert a right of retention only insofar as its counter-claim is based on the same contract and is indisputably or legally determined.
(10) Further details about the pricing and payment conditions shall result from the special terms and conditions for additionally agreed services.
(11) In the event of termination of the service or if the payments become overdue for longer than 14 days, safectory shall disable the access to all services. Other contractual and legal rights of safectory in the event of default shall remain unaffected.
§8 Other obligations of the customer
(1) The customer must observe all applicable legal and official provisions as well as the informed application and operating instructions when using the safectory services.
(2) When using the corresponding services, the customer shall immediately inform safectory about disturbances and safety defects of all services and equipment of safectory used by it (fault message) and support safectory in determining its causes as well as in the rectification to the reasonable extent. If it is found that safectory is not responsible for the disturbance or the disturbance is not based on an error in the services provided by safectory, safectory shall be authorised to charge the customer the expenses incurred due to this. The same shall also be applicable for fault messages received by safectory from the companies connected on behalf of the customer as long as forwarding to third parties is permissible according to the respective service.
(3) The customer must name a technical contact person and inform the telephone number, at which he/she shall be accessible.
(4) The use of the service shall require registration in a web portal managed by safectory. The customer must store the access data for this web portal safely, must treat it as confidential, may not forward it to third parties and must protect it appropriately against misuse. If a third party has received the access data (and in case of a corresponding suspicion), the customer must inform safectory immediately and change the access data. The customer must immediately inform changes in the customer’s details (e.g. address, payment data, etc.) to safectory.
§9 Use of the service
(1) safectory shall grant the customer non-exclusive, non-transferable rights of use of the service of safectory for internal business purposes. The customer may, within the scope of the services, not save, spread, transfer or access viruses or other materials, which (i) are illegal, dangerous, defamatory, harassing or racist; (ii) support illegal activities; (iii) show sexist or sexual contents; or (iv) show discriminatory contents.
(2) The customer may (i) not allow third parties to access services of safectory or to use these to create or distribute a competitive product; (ii) not try to reverse-engineer, recreate or imitate the products or services of safectory; and (iii) not copy, modify, duplicate the services of BCN or create derivative works.
(3) In particular, the customer may not modify or open the sensors, connect these with accessories that are not delivered by safectory (e.g. external storage media) and/or networks that are not authorised by safectory and not try to read out the content from data memories in the sensor and/or the data transmission of the sensor to safectory.
§10 Retention of ownership by safectory
(1) In case of leasing, safectory shall remain owner of all the delivered, constructed and/or installed safectory service and technology equipment.
(2) The customer shall make sure that all the service and technology equipment is returned to safectory or safectory can dismantle and pick it up at the end of the lease agreement.
(3) In case of purchase, safectory shall remain owner of all the delivered, constructed and/or installed safectory service and technology equipment up to the full payment of the agreed purchase sum.
§11 Warranty and maintenance
(1) safectory shall provide its services according to the acknowledged and usual state of the art as well as according to the order conditions and service agreements of the service used and while adhering to all applicable safety regulations for the proper provision of the sensors.
(2) safectory shall provide its warranty according to the following regulations and alternatively, according to the legal provisions within one year from the transfer of risk.
(3) The seller shall fulfil its warranty obligations primarily by rectifying the defects through repairs. If the defect rectification within 14 (fourteen) working days from the receipt of the notice of defects by the seller is unsuccessful, the seller shall be authorised for subsequent fulfilment by delivering a defect-free sensor. If this fails too, the customer shall be entitled to the legal warranty claims. For claims for compensation, the scope of liability determined in § 15 shall be applicable.
(4) The seller shall fulfil its warranty and maintenance obligations during the usual working hours (Monday to Friday, 9 – 18 hrs., hotline no..: +49 (0) 951 / 302067-224) with a response time during this time of up to 24h from the receipt of the fault message; in this respect, all incurring material and personnel costs shall be settled through the contractually agreed remuneration. The customer shall assume the expenses of the seller for diagnostic and maintenance work, which becomes necessary for reasons within the area of responsibility of the customer (particularly improper operation, use of other non-suitable programmes or additional equipment, changes made by the customer or extensions). The seller shall not be responsible for the failure of communication networks, computing centres or other services, which are provided by third parties. If the warranty and maintenance services should additionally also be provided beyond the usual working hours of the seller, corresponding chargeable special agreements can be made by the customer.
(5) safectory shall not assume warranty for disturbances of safectory services, which should be attributed to
1. interventions of the customer or third parties in the telecommunication or mobile radio network
2. the technical equipment or the network infrastructure
3. the unsuitable, improper, defective connection of the sensor to the power supply
4. the defective, improper or negligent installation, operation or handling of the devices or systems required for the use of safectory services by the customer and third parties.
5. non-compliance with or non-adherence to the notes and regulations specified in the service description, operating instructions or other product information, unless they are based on safectory’s fault
(6) For the fulfilment of the warranty and maintenance obligations, the employees and authorised representatives of the seller shall be granted free access to the sensors; the seller can store maintenance equipment and spare parts with the customer if this is necessary for the fulfilment of its obligations.
(7) The warranty and maintenance obligations of the seller shall expire if the customer makes changes or has changes made according to § 12, unless the defects in question are verifiably caused neither fully nor partially and the maintenance was not impeded through such changes.
(8) In addition, the following services can be agreed upon on a chargeable basis:
1. The seller shall keep the operating software of the sensors up-to-date through remote maintenance.
2. Malfunctions shall be detected and if possible, rectified by the seller through remote maintenance. If rectification through remote maintenance is not possible, the seller shall exchange the device. For this purpose, the customer shall be instructed to send the device with all accessories to the seller in the original packaging and shall receive a replacement device in return.
3. The exchange shall usually take place within 6 working days.
4. The costs for freight and logistics shall be borne by the perpetrator.
§12 Changes and extensions
Change shall refer to every deviation from the mechanical, electrical or electronic draft including a change in micro-programmes. Extensions shall refer to all mechanical, electrical or electronic connections of the sensors with other devices, elements or additional equipment.
§13 Availability and restrictions
(1) The web portal shall be provided to the customer with an availability of 95% on a monthly average. Maintenance times announced in advance shall not be considered when calculating the availability.
(2) An up-to-date browser shall be required for the use. The access to the web portal with older browsers shall not be possible for technical reasons.
The function of the sensor shall decisively depend on the conditions on site and the proper fulfilment of cooperation obligations of the customer, which lie beyond safectory’s area of influence. Factors such as poor mobile radio signal quality, disturbances of the power supply, and external influence on the sensor can result in a decline in the data quality or failure of the data collection.
(3) safectory shall inform the customer about a detected failure of the sensor via e-mail. In case of repeated problems, the safectory Support can be contacted at email@example.com to, if applicable, initiate an exchange of the sensor.
(4) safectory would like to point out that the data that can be called up via the web portal shall not be reliable and precise statistics of the number of visitors, but shall reflect trends for different legal and technical reasons, mainly due to data protection-related specifications. The system shall not count every visitor, but shall count radio modules located within the range of reception. The radio module of a mobile device must have been switched on for it to be recorded. Moreover, corresponding detectable radio modules shall not be integrated in all mobile telephones. Mobile telephones without corresponding radio modules cannot be recorded. Even other devices, such as cars, printers or WLAN routers can be recorded. A visitor can carry multiple devices equipped with radio modules and would then be recorded multiple times. For technical reasons, the distance between the radio module and the sensor can only be determined approximately.
The contracting parties must keep all the information becoming accessible for them in connection with this contract, which is marked as confidential or is recognisable as business or trade secrets due to other circumstances, confidential for an indefinite period and may neither record nor forward this information to third parties or use it in any way – unless this is necessary for achieving the contract purpose.
§15 Liability restrictions
(1) The seller’s liability for damages – on any legal grounds whatsoever – shall be applicable only if the damage
1. has been caused through a culpable violation of an essential contractual obligation (cardinal obligation) in a manner endangering the achievement of the contract purpose
2. is to be attributed to gross negligence or intent of the seller.
(2) If the seller is liable according to para. (1) (a) for the violation of an essential contractual obligation, without gross negligence or intent, the liability shall be limited to the extent of damage, the occurrence of which the seller typically had to expect at the time of conclusion of the contract based on the circumstances known to it at that time.
(3) The liability restriction according to para. (2) shall similarly be applicable for damage, which is caused due to gross negligence or intent of the seller’s employees or authorised representatives, who are not Managing Directors or executive employees of the seller.
(4) In the cases stated in para. (2) and (3), the seller shall not be liable for indirect damage, consequential damages or lost profit.
(5) With respect to the properties of the sensor and the usage modalities on the part of the customer, the typically foreseeable extent of damage shall, in any case, not exceed an amount of EUR 250,000.00.
(6) The liability restrictions according to para. (1) to (5) shall be accordingly applicable also in favour of the employees and authorised representatives of the seller.
(7) The seller’s liability for damage due to failure of communication networks, computing centres or other third-party services shall be ruled out.
(8) Possible liability of the seller for the lack of assured properties or based on the product liability law shall remain unaffected.
(9) The customer must take suitable measures to avert and reduce damage.
§16 Data protection
(1) Safectory shall collect, process and save personal data of customers according to regulation (EU) 2016/679 dated 27th April 2016 (the “General Data Protection Regulation”) and also according to any additional or other laws and regulations that are applicable for safectory with reference to the processing of personal data. In the respect, safectory shall act as the party responsible and can be contacted for data protection-related questions by e-mail (firstname.lastname@example.org) or by post (safectory GmbH, Mußstr. 16, 96047 Bamberg). All information with reference to the processing of personal data by safectory shall be described in detail in the data protection declaration. The type and manner of the processing of personal data by safectory could change. If the data protection declaration is updated due to these changes, safectory shall inform about this e.g. by e-mail or through a hyperlink to the website. The latest version of the data protection declaration shall be available at www.safectory.com/datenschutzerklaerung
(2) The customer declares its consent that all the data recorded by it shall be saved and processed further according to applicable laws and regulations if this is necessary for the execution of the contractual relationship.
(3) The customer declares its consent to the transmission of data to contracting companies of the seller if the purpose of the data is preserved, particularly in case of services for the contract fulfilment or in case of a transfer of the contractual relationship between the companies.
(4) Moreover, the seller shall handle the data confidentially and in compliance with the legal regulations. Collection or processing of personal data going beyond the scope described here shall take place only with prior consent of the customer.
(5) The data shall be preserved only as long as this is necessary within the scope of this contract and while adhering to the applicable law.
(6) The customer shall any time have the right to demand information about its saved data.
(7) safectory may name the customer with name and location of the company as reference customer in its advertising and marketing materials; safectory shall however not be obligated to do so. Beyond this, safectory shall not forward the customer’s data (i.e. exact address, contact persons, billing data, access data, etc.) to other customers.
(8) safectory shall not share statistics data (i.e. statistics data collected through the sensors installed for the customer) with anyone outside the customer’s company.
(9) safectory shall be allowed to use this statistics data in anonymised form and without a connection with the customer in order to develop other features and to provide these to customers of safectory.
(10) The customer has been informed in detail about the type, scope, location and purpose of the collection, processing and use of the personal data that is necessary for the execution of services. The customer explicitly agrees to this data processing.
(1) Any copyrights resulting from or in connection with the services of safectory as well as changes or improvements in these services shall be assigned solely to safectory. This contract shall not grant the customer any copyrights or rights of use to the proprietary software of safectory.
safectory shall be the owner of all licenses and copyrights to the websites and the materials of safectory. These works shall be protected by copyright all over the world. safectory shall exercise all these rights.
(2) For the term of the contract, safectory shall grant the customer the chargeable, non-exclusive (simple), non-transferable, non-sublicensable right to use the service on the central server of safectory. safectory shall not transfer the software to the customer.
(3) If safectory provides new versions, updates or upgrades of the service during the term of the contract, the aforementioned right of use shall be identically applicable for these. safectory shall however not be obligated to provide new versions, upgrades or updates if this is not absolutely necessary for defect rectification.
(4) Beyond the purposes of these GTC, the customer shall not be authorised to use, reproduce or download the service or data other than its own or to make it accessible for third parties.
(5) For every individual case, in which the customer culpably facilitates an access to the safectory service to third parties, the customer must, in each case, pay compensation in the amount of the remuneration that would have accrued for the third party in case of conclusion of a contract during an ordinary term of one (1) year. The customer shall reserve the right to prove that there is no damage or there is lower damage. All other rights of safectory shall remain unaffected by the aforementioned regulation.
The customer shall exempt safectory from any costs, damage, liabilities and losses (including direct and indirect losses of turnover, reputation or other costs, including reasonable legal costs), which safectory incurs in connection with a non-contractual use of the service by the customer. This shall be particularly applicable if third parties assert claims against safectory in connection with the non-contractual use by the customer. This exemption obligation shall not be applicable if the customer is not responsible for the contract violation.
§19 No waiver
If safectory, at any time during the validity of this contract, does not insist on the strict adherence to the customer’s obligations under these GTC or if safectory does not exercise rights vis-à-vis the customer, this shall not imply waiver of these rights or of the adherence to the customer’s obligations on the part of safectory. Any waiver of the assertion of a right on the part of safectory shall explicitly not be a waiver of the assertion of the right in future cases. A waiver shall be valid only if it takes place explicitly and in writing.
(1) This contract contains all agreements between the contracting parties; there are no collateral agreements.
(2) Changes or additions to this contract must be made in writing. This shall also be applicable for a waiver of this written form requirement.
(3) If individual regulations of this contract are or become ineffective, this shall not affect the validity of the remaining regulations. The ineffective regulation must be replaced with a substitute regulation that comes closest to the purpose pursued with the ineffective regulation. This regulation shall be accordingly applicable in case of loopholes.
(4) The legal relationship between the parties to this contract shall be subject to the law of Federal Republic of Germany. The application of the uniform international sales law (CISG convention) is ruled out.
(5) For disputes arising from this contract or in connection with this contract or with the use of FlowTrack® or Asset-Tracking, the exclusive legal domicile shall be Bamberg if the customer is a businessman or does not have a fixed residence in Germany, has shifted its residence or usual residence to a foreign country after these conditions become effective or if its residence or usual residence is not known at the time of commencement of the proceedings.
(6) safectory shall reserve the right to amend these GTC as well as the scope of service. The respective latest version of the GTC shall be available at www.safectory.com. The customers shall be notified about the changes by e-mail at the latest 4 (four) weeks before the planned entry into force of the new version of the GTC. If the customer does not object to the application of the new GTC within 4 (four) weeks from their entry into force, the new GTC shall be deemed accepted. safectory shall inform the customers about the significance of the 4-week period and the right of objection as well as the legal consequences of the silence separately in a suitable form. The above change mechanism shall not be applicable for changes in major contractual obligations.
As of: : 28.05.2018