General Terms and Conditions for Livy Care
HUM Systems GmbH, Schinkestraße 9, 12047 Berlin, Tel.: +49 30 837930 06, E-Mail: info@hum-systems.com ("HUM Systems" or "we") offers its Livy Care products ("Products") and related services ("Services") to institutions in the care sector ("Customer" or "you"). If you enter into a contract with us to purchase the Products or Services (whether permanently or for a limited period of time), these Terms and Conditions ("Terms") shall apply in the version in effect at the time the contract is entered into.
You may acquire the Products either by way of a purchase option (clause 2.5(a)) or by way of a time-limited rental option (clause 2.5(b)).
The contract for the purchase of the Products and the provision of further services shall be governed exclusively by these GTC. HUM Systems objects to the validity of all contractual terms and conditions provided by the Customer, unless they have been expressly accepted in writing by HUM Systems.
These GTC are exclusively addressed to entrepreneurs in the sense of § 14 BGB (German Civil Code).
- CONCLUSION OF THE CONTRACT
1.1 The contract for the purchase of the products and any additional services of HUM Systems is concluded by signing a separate order form by you and HUM Systems.
1.2 The order form contains in particular information about the number of products, services and concrete prices.
1.3 In case of contradictions between these GTC and the respective order form, the provisions of the order form shall prevail.
- PRODUCTS
2.1 The Products consist of a hardware component which Customer uses for the
2.2 The Products are delivered with the functions described in the respective Product description supplied with the Products ("Functions"). In particular, the Functions of the Products enable caregivers to communicate with patients, caregivers to monitor patients, and caregivers to automatically assist in detecting accidents or other emergency situations involving patients.
2.3 For proper installation and operation of the products, you must comply with the instructions supplied with the products. Please note that the products must be connected to your home WLAN in order to fully utilize functions. The products also require a permanent power connection.
2.4 Certain features can only be used as part of a separate pro contract ("Pro Contract"). Software updates for the Products shall also only be delivered during an ongoing Pro Contract. These GTC shall also apply to the Pro Agreement (Section 3).
2.5 The Products may be purchased by Customer in the following constellations:
(a) In the "purchase option", the Customer immediately acquires ownership of the Products against payment of a one-time price. Ownership of the Products shall pass to Customer upon delivery to Customer or upon payment of the purchase price in full (whichever occurs later).
(b) In the "Lease Option", the Customer acquires the right to use the Products for a limited period of time for a monthly fee. The ownership of the Products remains with HUM Systems until the end of the contract and the Products have to be returned to HUM Systems properly after the end of the contract. The minimum contract period is 24 (twenty-four) months and cannot be terminated prematurely (the right to terminate for cause remains unaffected). At the end of the minimum term and any further term, the customer may terminate the lease agreement with a [3 (three) month] notice period in writing. If the customer does not terminate within this period, the rental agreement shall be automatically extended by 1 (one) further year in each case.
2.4 The installation of an app on (mobile) devices of the Customer ("App") is required to use the Products. The App must be downloaded separately from a common App Store or Play Store by you. The App enables communication with the Products.
(a) Use of the App is permitted exclusively in accordance with the Terms of Use in this Section 2.4.
(b) You are granted free of charge (unless the App expressly refers to costs for individual functions, in which case these require a separate and express conclusion of a contract) the non-exclusive, non-transferable, non-sublicensable right to use the App for your own use on an iOS or Android smartphone or tablet owned or in possession by you.
(c) The App may be used solely for the operation of the Products. Use is permitted only in compliance with the requirements and setup steps as set forth in the Product Description.
(d) The app may only be used in unmodified form. In particular, it is not permitted to decompile, extract or convert (reverse engineering), edit or copy the App or parts thereof (unless this is mandatorily provided for by Section 69e UrhG).
(e) In order to use the App, it is necessary that you create an account in the App.
- SERVICES
3.1 Certain core functions of the devices are provided with the products without a supplementary Pro Contract. Which these are can be found in the respective product description supplied. A supplementary Pro Contract is required for all other functions and software updates.
3.2 If the Products have been purchased under the Lease Option, all functions and software updates for the Products shall be included in the scope of services during the term of the Lease Agreement at no additional charge. The Pro contract does not establish a claim to the publication of new updates by HUM Systems, but only to the receipt of software updates published by HUM Systems at its own discretion during the contract period.
3.3 It is not possible to terminate the Pro contract without terminating the rental contract for the products. Insofar as the rental contract is terminated, the included Pro contract shall end automatically.
3.4 Insofar as the products were purchased in the purchase option, a Pro contract is required for the use of all functions and the receipt of software updates for the devices. The corresponding contract is automatically included for a minimum term of 12 (twelve) months from the conclusion of the contract and cannot be terminated before this point in time. Unless the Pro contract is terminated in writing with a notice period of 3 months to the end of the minimum term, the Pro contract shall be automatically renewed for a further year in each case unless it is also terminated in writing with a notice period of 3 months to the end of the respective term. The right to terminate for cause remains unaffected.
- PRICES AND PAYMENT
4.1 For the purchase of the products in the purchase option, a one-time purchase price per product is due. The amount of the purchase price results from the respective order form. The purchase price is due for payment immediately after conclusion of the contract and after receipt of a corresponding invoice from HUM Systems.
4.2 For the rental of the products in the rental option, a continuous monthly rental fee per product is due. The amount of the monthly rental fee results from the respective order form. The rental fee is payable monthly in advance immediately after receipt of a corresponding invoice from HUM Systems.
4.3 If the Customer has concluded a Pro contract for a product, a separate monthly fee is due for the functions and software updates covered by this contract. The amount of the monthly fee is specified in the order form. The fee is payable monthly in advance immediately upon receipt of an appropriate invoice from HUM Systems. During the first 24 (twenty-four) months after purchase of the products in the purchase option, the fee is waived. During the rental period in the rental option, the fee is also waived.
5. USE OF THE PRODUCTS BY THE CUSTOMER
5.1 The Products may assist the Customer or its caregivers in fulfilling their duties in monitoring patients. However, use of the Products does not relieve Customer of its supervisory responsibilities and is not a substitute for manual supervision.
5.2 Within the scope of the rental option, the products must be handled with care and protected against damage. The customer's personnel shall be obliged to do so.
5.3 Prior to the commissioning of the Products by the Customer, the Customer shall inform the personnel entrusted with the handling of the Products about the functionalities and risks of the Products, in particular about the fact that the Products cannot completely replace manual supervision, but may only be used as an aid.
5.4 The Customer shall carefully check the Products as well as the App for their functionality before putting them into operation and shall immediately notify HUM Systems of any malfunctions that could be perceived during the check. Any malfunctions occurring later (which could not be detected during the first functional test) must also be reported to HUM Systems immediately after they become known. If HUM Systems is not notified in due time, the products shall be deemed free of defects.
6. WARRANTY
6.1 Defects in Purchased Products
(a) If the purchased Products have defects that materially affect their operation and usability, you may return the Products to HUM Systems and HUM Systems will, at its option, either repair the Products or provide you with new and defect-free Products. If HUM Systems fails to do so within a reasonable period of time or fails to do so successfully, you may rescind the contract in accordance with applicable law or reduce the purchase price in reasonable proportion. The assertion of further damages remains unaffected, but is subject to the restrictions in clause 8. Defects are not damages or malfunctions caused by the improper handling of the products by the customer or his personnel. Defects of the Products shall also include defects of the App which noticeably impair the proper use of the Products.
(b) The warranty period is 1 (one) year from the date of delivery of the Products. In the case of replaced or repaired Products, a renewed warranty period shall take effect as of the provision of the repaired or new Products, but in the case of repaired Products only for the parts affected by the repair.
6.2 Defects in rented products
(a) If defects occur in the products during the rental period which noticeably impair their operation and usability, you must inform HUM Systems immediately in order to give HUM Systems the opportunity to remedy the defects (either by repair or by providing a product free of defects). For the period in which the Products are not usable in accordance with the contract, the rental fee shall be forfeited or, in the event that the Products are not fully usable in accordance with the contract, the rental fee shall be reduced in reasonable proportion (either by a reduced monthly fee or a refund for monthly fees already paid). The right to claim further damages remains unaffected, but is subject to the limitations in clause 8. You shall report any defects occurring during the rental period to HUM Systems immediately after they become known. Defects are not damages or malfunctions caused by improper handling of the products by the customer or his personnel. Defects of the products are also defects of the app which noticeably impair the proper use of the products. HUM Systems' liability regardless of fault is excluded for initially existing defects.
6.3 Defective fulfillment of the Pro contract
If the Pro-Contract is not properly fulfilled by HUM Systems, the Customer is entitled to demand reimbursement of any damages incurred in accordance with Clause 5.
7. LIABILITY
7.1 HUM Systems is liable to the legal extent only in case of injury to life, body and health, in case of damages caused by gross negligence or intent of HUM Systems, its legal representatives and vicarious agents, as well as in other cases in which liability cannot be limited by contract (especially according to the ProdHaftG).
7.2 In case of a culpable breach of an essential contractual obligation by HUM Systems, its legal representatives or vicarious agents below gross negligence, the liability of HUM Systems is limited to the amount that could typically be foreseen in comparable circumstances at the time of conclusion of the contract. Essential contractual obligations are those, Essential contractual obligations are those contractual obligations, the fulfillment of which enable the proper execution of this contract in the first place and on the compliance with which the User regularly relies and may rely.
7.3 In all other cases of simple negligence, the liability of HUM Systems is excluded.
7.4 The provisions of this clause 7 also apply in favor of the legal representatives, vicarious agents and employees of HUM Systems.
8. DATA PROTECTION
8.1 As the responsible party within the meaning of the EU General Data Protection Regulation ("DSGVO"), the Customer shall be responsible for the use of the Products in compliance with data protection requirements. In particular, Customer shall ensure that there is a sufficient legal basis for the use of the Products vis-à-vis the Patients, e.g. through effective consent.
8.2 HUM Systems assures that the devices can be used towards patients in a DSGVO-compliant manner].
8.3 The data collected by the Products during operation are generally stored exclusively on the Product itself and HUM Systems has no access to them. However, if a Product is accessed by an end device via the App, this data is transmitted via the servers of HUM Systems and temporarily stored there for the transmission process. The servers of HUM Systems are located in Germany and Switzerland and are operated by our service provider [Hetzner Online GmbH]. We have concluded a (sub-) contract processing agreement with our service provider in accordance with Art. 28 DSGVO and have carefully checked the reliability of the service provider.
8.4 For the transit of data through the servers of HUM Systems in the case described in clause 6.3, HUM Systems acts as a processor for the Customer. HUM Systems and the Customer will conclude a separate order processing agreement for this case in accordance with Art. 28 DSGVO.
9. CONFIDENTIALITY
9.1 The parties undertake to treat as confidential all information made available to them within the framework of the contract, as well as information obtained on the occasion of cooperation, concerning matters of the other party which are marked as confidential, which are designated as confidential in the case of oral transmission or which are recognizable as confidential from the point of view of an objective observer, as well as business and trade secrets. The parties shall not use, make available to third parties, or otherwise utilize confidential information for any purpose other than the purpose intended for the contractual performance of tasks without the written consent of the other party.
9.2 Both parties undertake to impose the duty of confidentiality on all employees and/or third parties (freelancers, etc.) who have access to the aforementioned business transactions.
9.3 The confidentiality obligation shall not apply to information,
(a) which was already known to the receiving party at the time of the conclusion of the Agreement,
(b) which was already published at the time of disclosure by the disclosing party without this resulting from a breach of confidentiality by the receiving party,
(c) which the disclosing party has expressly released in writing for disclosure,
(d) which the Receiving Party has lawfully obtained from other sources without any restriction on confidentiality, provided that the disclosure and use of such Confidential Information does not violate any contractual agreements or any legal requirements or governmental orders,
(e) which the receiving party has developed itself without access to Customer's Confidential Information.
9.4 The confidentiality obligation shall not apply to Confidential Information which must be disclosed due to statutory obligations to provide information, notification and/or publication or official orders. To the extent permissible, the party obligated to do so shall inform the respective other party thereof as early as possible and support it to the best of its ability in taking action against the obligation to disclose.
9.5 The obligation to maintain confidentiality shall continue indefinitely after termination of the Agreement.
9.6 During the term of the contract, the documents made available by the parties shall be handed over by the respective other party to the other party without delay and without being requested to do so, or shall be destroyed upon the other party's instruction.
9.7 For each culpable breach of one of the obligations of this § 7 by one of the contracting parties, this party shall be liable to pay an appropriate contractual penalty, the amount of which shall be determined by the respective other party at its own discretion and, in the event of a dispute, may be reviewed by the competent court as to its appropriateness. The assertion of a claim for damages in excess thereof shall remain unaffected. In this case, the contractual penalty shall be offset against the damages claimed.
10. MISCELLANEOUS
10.1 If HUM Systems amends these Terms of Use during the term of the Agreement, HUM Systems will notify you of this in good time in advance. In this case, you have the right to object to the amendment of the Terms until its scheduled effective date. If you do not do so, you are deemed to have agreed to the change. If you object to the changes, HUM Systems is entitled to an extraordinary right of termination if it is not reasonably possible to provide the services under the old conditions. HUM Systems will inform you about these legal consequences together with the information about the planned change.
10.2 Changes to the contract including these Terms of Use must be made in writing. This also applies to the waiver of this formal requirement.
10.3 German law shall apply exclusively. The UN Convention on Contracts for the International Sale of Goods is excluded.
10.4 Place of performance and exclusive place of jurisdiction is Berlin, as far as legally permissible.
10.5 The invalidity of one or more of the above provisions shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by a valid provision which corresponds as far as possible to the economic purpose pursued by it.