Terms & conditions

1. General | Scope‍

1. These nuvo End User License Terms (“Terms”) apply to all contracts between ComDocks GmbH, Schopenstehl 13, 20095 Hamburg, Germany (“nuvo”) and its customers who are business owners and not consumers (“Customers”) to whom nuvo provides access to its Services.

2. These Terms shall govern each ordering document or any online, email or in-app ordering process that references these Terms (each an “Order”). The terms of each Order shall incorporate these Terms and shall form a separate services contract with respect to the Services (as defined below) under that Order (a “Services Contract”).

3. These Terms shall also apply as a framework for future contracts between nuvo and Customer even if nuvo does not refer to them in each individual case. These Terms shall be deemed to be confirmed by Customer at the latest when Customer or the first User uses the Services.

4. These Terms apply to the exclusion of all others. Different, conflicting or supplementary standard terms shall only become part of a Services Contract if and to the extent that nuvo has consented to such terms in writing.

5. Individual agreements made in writing with Customer in specific cases (including ancillary agreements, supplementary agreements and amendments) shall take priority over these Terms.

6. Where these Terms mention the terms ‘written’, ‘in writing’, ‘written form’ or similar, this shall refer to ‘in writing’ in the sense of § 126 German Civil Code. The electronic exchange of copies of documents signed by hand as well as documents signed with a simple electronic signature (such as provided by e.g. DocuSign) shall be sufficient therefor. Unless expressly stated otherwise in these Terms, simple emails shall not be sufficient.

7. Unless stated otherwise in these Terms, any notices and declarations submitted by Customer to nuvo, including but not limited to notices of termination or setting of deadlines, shall be made at least in text form within the meaning of § 126b of the German Civil Code to be valid (simple email shall be sufficient).

2. License Grant | Permitted Users | Updates

1. Subject to the terms and conditions of the Services Contract, nuvo grants to Customer, during the Initial Service Term and any Renewal Service Term, a non-exclusive, non-transferable, non-sublicensable worldwide right and license to use the nuvo software (which may be offered as on-premise software or software as a service) including any related websites, spaces, services and applications as designated in the Order (collectively the “Services”) for Customer’s internal business purposes only (“License”). The Services are offered as described in the Services documentation, as updated from time to time, and located at an URL further specified by nuvo or attached as an exhibit to the Order (“Documentation”).

2. Customer shall not permit any third parties to use the Services through the Customer account (“Users”) unless they qualify as Customer’s employees, outsourcing service providers, consultants or contractors, and always provided that ( A ) Customer has obtained a License for each such permitted User; ( B ) Customer procures that such permitted Users comply with these Terms and Customer remains responsible and liable towards nuvo for all acts and omissions of such permitted Users; and ( C ) the Services are used by such permitted Users solely for the benefit of Customer.

3. nuvo may implement new versions and upgrades of the Services including, but not limited to, changes that effect modifications to the design, operational method, technical specifications, systems, and other functions, etc. of the Services, at any time without prior notice.

3. License Restrictions

1. Customer shall not (and shall not permit any third party to) directly or indirectly: ( A ) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, or otherwise generate income from the Services; ( B ) copy the Services onto any public or distributed network; ( C ) decompile, reverse engineer or disassemble any portion of the Services, or otherwise attempt to discover any source code, object code or underlying structure, ideas, know-how or algorithms or other operational mechanisms of the Services, in each case, unless permitted by mandatory statutory law; ( D ) modify, adapt, translate or create derivative works based on all or any part of the Services (except to the extent expressly permitted by nuvo or authorized within the Services); (E) modify any proprietary rights notices that appear in the Services or components thereof; ( F ) use the Services outside of the license scope set forth in Clause 2; or (G) use the Services to (i) store, download or transmit infringing, libelous, or otherwise unlawful or tortious material, or malicious code or malware; or (ii) engage in phishing, spamming, denial-of-service attacks or other fraudulent or criminal activity; (iii) interfere with or disrupt the integrity or performance of third party systems, or the services or data contained therein; (iv) gain unauthorized access to the Services or nuvo’s systems or networks; or (v) perform, or engage any third party to perform, penetration testing, vulnerability assessments or other security assessments.

2. The Services may only be used by Customer and its permitted Users as prescribed in the Documentation and in full compliance with all applicable laws and regulations.

3. Customer shall not export or re-export, directly or indirectly, any Services or data relating thereto in breach of any applicable laws and regulations. In particular, Customer shall comply with the sanctions imposed by the Federal Republic of Germany, the European Union, the United Nations and the United States of America, in each case, insofar as this does not result in a violation of or a conflict with mandatory anti-boycott statutes applicable to Customer. Customer shall, at its own expense, obtain all necessary customs, import, or other governmental authorizations and approvals.

4. The Services may be subject to export and/or re-export control laws and regulations of the European Union, the United States, or to similar laws applicable in other jurisdictions. Customer warrants (garantiert) that (a) the Services will not be used from countries to which such export and/or re-export is prohibited by any such laws and regulations, and (b) that Customer is neither a denied party specified in any such laws and regulations nor listed on any official list of prohibited or restricted parties.

5. nuvo may prohibit any use of the Services it believes may be in violation of this Clause 3.

4. Trial Use

1. nuvo may grant Customer access to the Services as part of a trial evaluation for a period determined by nuvo in its sole discretion (“Trial Use”).

2. nuvo may downgrade, limit or otherwise modify the Services provided for Trial Use at any time without notice, and no guarantee, indemnity, Maintenance or Support obligations of nuvo shall apply to Trial Use.

3 .nuvo has the right to immediately revoke and terminate any Trial Use at any time. Trial Use is not a guarantee of future product features and should not be relied upon in making any purchasing decisions.

5 . Customer’s Responsibilities

1. Customer shall be responsible for obtaining and maintaining any technical equipment and related ancillary services required to connect to, access or otherwise use the Services at its own cost, including, without limitation, hardware and software (collectively “Equipment”) networks and internet connections. Customer shall maintain the security of the Equipment.

2. Customer shall keep the information in the Customer account up to date and correct. Customer shall ensure that user identities, passwords and similar credentials used for accessing the Services are used and stored in a secure manner, cannot be accessed and used by third parties and are immediately changed in the event of unauthorized disclosure.

3. Customer shall notify nuvo of any unauthorized disclosure of such user identities, passwords or similar credentials, and any unauthorized use or breach of security of the Services. Customer shall be solely liable for any unauthorized use of the Services through the Customer account.

4. Customer shall be solely liable for the content of all data, personal identifiable information and any other material generated, displayed, posted, uploaded, stored, exchanged or transmitted by Customer or any User on or through the Services (“Customer Data”).

5. nuvo cannot control the information submitted by Customer or any User during their use of the Services and cannot guarantee the accuracy of any information submitted. nuvo may, without notice or liability, investigate any complaints or suspected violations of the Services Contract including these Terms that come to its attention and may take any legal action and/or technical measures that it believes are appropriate, including, but not limited to, rejecting, refusing to post, or removing any Customer Data, or other data, or restricting, suspending, or terminating Customer’s or any User’s access to the Services.

6. Maintenance And Support

1. Subject to Customer’s payment of the Service Fees set forth in the applicable Order, nuvo shall provide Maintenance and Support for the Services to the extent specified in the Order. “Support” is defined as nuvo’s obligation to use commercially reasonable efforts to respond to support requests of Customer with regard to the Services by documenting and troubleshooting issues and providing technical and non-technical assistance. “Maintenance” or “Maintain” means nuvo’s obligations to use commercially reasonable efforts with regard to the Services related to error resolution, bug fixes and the provision of updates and upgrades made generally available by nuvo in its sole discretion.

2. Support is provided via email through support@getnuvo.com on the nuvo website from Monday to Friday 9:00 am to 5:00 pm (CET), excluding public holidays in the State of Hamburg, Germany.

3. nuvo shall use reasonable efforts consistent with prevailing industry standards to Maintain the Services in a manner that minimizes errors and interruptions in the Services.

4. Customer may notify nuvo of any errors via support@getnuvo.com. nuvo shall begin correcting any errors within the following reaction times and undertakes to rectify the notified errors within the following restoration times subject to (A) Customer providing a detailed description of the error and its reproducibility, and (B) depending on the priority of the error to be reasonably determined by nuvo in its sole discretion:

Priority; Criteria; Reaction Time; Restoration Time

Urgent; Services interrupted. No User can use the core functions of the Services and no reasonable workaround exists; 12 hours; 24 hours
High; Services significantly impaired. One or more Users cannot use certain of the core functions of the Services; 24 hours; 48 hours
Medium; Services insignificantly impaired. A non-core function of the Services cannot be used properly. Only one or few Users affected.; 48 hours; 72 hours

5. The reaction time begins with receipt of the error notification by nuvo. The reaction time shall only run from Monday to Friday 9:00 am to 5:00 pm (CET), excluding public holidays in the State of Hamburg, Germany, and shall be deemed to have been observed if nuvo initiates measures to rectify the notified error during the reaction time period.

7. SaaS Availability

1. To the extent that the Services are provided to Customer as software as a service, nuvo shall make the Services available to Customer in accordance with this Clause 7 subject to Customer’s payment of the Service Fees set forth in the applicable Order.

2. nuvo shall use commercially reasonable efforts to ensure, that the Services offered as software as a service are available to Customer via the internet, however no less than 99.5% per year (based on twenty-four ( 24 ) hours a day and seven ( 7 ) days a week) excluding any temporary unavailability for scheduled or for unscheduled Maintenance, and unavailability for causes beyond nuvo’s reasonable control. nuvo shall use commercially reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption.

3. nuvo shall not be obliged to provide for Customer’s access to the Services such as for internet access.

‍8. Confidentiality

1. Customer and nuvo understand that they have or may disclose to each other business, technical or financial information relating to their business (“Confidential Information”). Confidential Information of nuvo includes but is not limited to non-public information regarding features, functionality and performance of the Services. Confidential Information of Customer includes any Customer Data.

2. Customer and nuvo shall take reasonable precautions to protect each other’s Confidential Information, and not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. This shall not apply with respect to any information after five ( 5 ) years following the disclosure thereof or to any information that Customer or nuvo respectively can document ( A ) is or has become generally available to the public; or ( B ) was in Customer’s or nuvo’s respective possession or known by Customer or nuvo prior to receipt; or ( C ) was rightfully disclosed to Customer or nuvo respectively without restriction by a third party; or ( D ) was independently developed without use of any Confidential Information or ( E ) is required to be disclosed by law.

3. nuvo may collect and analyze data and other information relating to the provision, use and performance of the Services and related systems and technologies (excluding information concerning the Customer Data and any personal data contained therein), and nuvo shall be free (during and after the term of the Services Contract) to use such data and information to improve and enhance the Services and for other development, diagnostic and corrective purposes relating to the Services and other nuvo offerings, in each case, solely in aggregated, anonymized or other de-identified form and solely in a manner that is not directly detrimental to Customer.

9. Proprietary Rights | Trade Names and Logos | Use of Feedback

1. nuvo and its respective suppliers own and shall retain all ownership and intellectual property rights, including all copyright, database rights, patent, trade secret, trademark and all other intellectual property rights and technical solutions, in and to the Services. Customer acknowledges that the rights granted under a Services Contract do not provide Customer with title to or ownership of the Services.

2. Customer shall retain all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data. Customer grants to nuvo during the term of the Services Contract a non-exclusive, non-transferable, sublicensable, worldwide and unlimited right and license to use the Customer Data free of charge solely to the extent necessary for the provision of the Services. Customer warrants (garantiert) that it has obtained all rights and consents necessary for nuvo to use the Customer Data as permitted herein.

3. Customer agrees that nuvo may refer to Customer by its trade names and logos, and may briefly describe the Customer’s business, in nuvo’s marketing materials and website.

4. Customer may from time to time provide nuvo with suggestions for new features or functionalities of and with feedback regarding the Services. nuvo shall be free to take such suggestions or feedback into consideration. Customer grants to nuvo, without charge, the fully paid-up, perpetual, sublicensable right to exploit such feedback for any purpose.

10. Data Privacy | IT Security

1. Customer and nuvo shall at all times comply with the requirements of applicable data protection legislation, including but not limited to the EU General Data Protection Regulation.

2. Where required by such legislation, nuvo shall enter into a data processing agreement with Customer.

3. nuvo shall adopt reasonable measures to ensure that the security of the Services meet relevant industry standards.

11. Payment Of Fees

1. Customer shall pay nuvo the fees described in the Order for the Services in accordance with the terms therein (“Service Fees”).

2. If Customer’s use of the Services exceeds the capacity set forth in the Order (“Service Capacity”) or otherwise requires the payment of additional fees per the terms of the Services Contract, Customer shall be billed for such usage and Customer shall pay the additional fees as provided herein.

3. At the end of each current term the Service Fees shall automatically and continually increase by eight per cent (8%) with effect for the then following Renewal Service Term.

4. Unless otherwise specified, Customer shall make all payments via any of the payment methods offered by nuvo. nuvo may also choose to bill through an invoice, in which case, full payment for invoices must be received by nuvo fourteen (14) days after the mailing date of the invoice.

5. Following notice in text form under § 126b German Civil Code (simple email shall be sufficient), nuvo may suspend Customer’s access to the Services in accordance with § 320 German Civil Code if payments are not received by nuvo within thirty (30) days of the due date.

6. All Service Fees are exclusive of, and Customer shall pay, all taxes, duties, and assessments, however designated, which are levied or imposed upon such Service Fees, excluding only taxes based on nuvo net income.

7. Customer may only invoke a right to set-off and assert a right of retention to the extent that its claims have been ( A ) finally established by a court of law; ( B ) are uncontested; or ( C ) have been acknowledged by nuvo in writing.

12. Term | Termination

1. Subject to earlier termination as provided below, the Services Contract begins on the date specified in the Order (“Effective Date”) and shall remain in effect for an initial term as specified in the Order (“Initial Service Term”). The Initial Service Term shall automatically and continually renew for additional periods, each of which corresponds with the Initial Service Term (“Renewal Service Term”), unless either party requests termination of the Services Contract within a notice period as specified in the Order Form.

2. Neither Customer nor nuvo may terminate the Services Contract for convenience with effect prior to the end of the Initial Service Term or any Renewal Service Term (Ausschluss der ordentlichen Kündigung). Customer’s and nuvo’s right to immediately terminate the Services Contract for good cause (außerordentliche Kündigung aus wichtigem Grund) shall remain unaffected. Such good cause shall in particular exist for both parties, if a party commits a material breach of the Services Contract, and such breach has not been cured within thirty (30) days after receipt of written notice thereof (simple email shall be sufficient). Such good cause shall also exist for nuvo if ( A ) Customer is in default of payment by more than forty-five (45) days; ( B ) Customer breaches the use restrictions under Clause 3; or ( C ) Customer ceases its due payments or suffers a significant deterioration in its asset situation.

3. Upon termination of the Services Contract or lapse of its Initial Service Term or Renewal Service Term taking effect, nuvo may suspend Customer’s access to the Services and delete any Customer Data (if any) in the possession of nuvo after a period of thirty (30) days. Customer shall be solely responsible for extracting all such Customer Data before any suspension. Upon Customer’s request, nuvo may choose to extract and/or modify Customer Data against an additional Service Fee.

13. Limited Warranty

1. Customer has checked that the specification of the Services as described in the Documentation meets its needs and wishes. Customer is aware of the essential functionalities and features of the Services. The extent, nature and quality of the goods and services to be delivered by nuvo are determined by these Terms, the Order, and the Documentation. Any other information or requirements do only form part of the Services Contract if Customer and nuvo so agree in writing. Product descriptions, illustrations, test programs, etc. represent mere service specifications but do not constitute guarantees (Garantien) or agreements on certain specifications (Beschaffenheitsvereinbarungen). In order to be valid, an agreement on a guarantee must be confirmed by a director of nuvo in writing.

2. nuvo warrants (gewährleistet) that the Services will, in all material respects, conform to the functionality described in the then current Documentation for the applicable Services version. In case of a breach of this warranty nuvo shall be required to use commercially reasonable efforts to modify the Services to conform in all material respects to the Documentation, and if nuvo is unable to materially restore such functionality within thirty (30) days from the date of written notice of said breach, Customer shall be entitled to terminate the Services Contract upon written notice and receive a pro-rata refund of the unused Service Fees which have been paid in advance (if any) for unused access to the Services. Customer shall notify nuvo in writing of any warranty breaches and Customer must have installed and configured the Services in accordance with the Documentation to be eligible for the foregoing remedy. Any no-fault liability (verschuldensunabhängige Haftung) of nuvo for the existence of initial errors (anfängliche Mängel) under § 536a German Civil Code shall be excluded. Customer’s claims for damages for a breach of this warranty are subject to the limitations set forth in Clause 15.

3. Customer may not obtain the source code of the Services for any reason.

14. Third-Party Claims

1. nuvo shall, at its expense, defend Customer against (or, at nuvo’s option, settle) any third-party claim to the extent such claim alleges that the Services infringe or misappropriate any patent, copyright, trademark, other intellectual property right or trade secret of a third party (“Third-Party Claim”), and nuvo shall pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any Third-Party Claim. In the event that the use of the Services is, or in nuvo’s sole opinion is likely to become, subject a Third Party Claim, nuvo, at its option and expense, may ( A ) replace the applicable Services with functionally equivalent non-infringing service; ( B ) obtain a license for Customer’s continued use of the applicable Service; or ( C ) immediately terminate the Services Contract in whole or in part and provide a pro-rata refund of the Service Fees that have been paid in advance for the applicable Services (beginning on the effective date of termination).

2. Clause 14.1 shall not apply: (i) if the Services are modified by Customer or any User; (ii) if the Services are combined with other non-nuvo products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; or (iii) in the event of any unauthorized use of the Services.

3. Clause 14.1 shall be Customer’s sole remedy with respect to any Third-Party Claim.

15. Limitation Of Liability

1. nuvo shall be unrestrictedly liable for ( A ) injury to life, body or health caused by nuvo, its legal representatives (gesetzliche Vertreter) or assistants in performance (Erfüllungsgehilfen); ( B ) damage caused intentionally (vorsätzlich) or with gross negligence (grob fahrlässig) by nuvo or its legal representatives; ( C ) damage caused intentionally by nuvo’s assistants in performance not mentioned in ( B ); ( D ) damage resulting from the absence of any guaranteed (garantiert) characteristics; and ( E ) claims under the German Product Liability Act (Produkthaftungsgesetz).

2. nuvo shall be liable for damage resulting from the breach of its primary obligations (Kardinalpflichten) hereunder by nuvo, its legal representatives, or assistants in performance. Primary obligations are such basic duties that form the essence of the Services Contract, which were decisive for the conclusion of the Services Contract and on the performance of which Customer may rely. If the breach of such primary obligation was caused ( A ) through simple negligence by nuvo, its legal representatives or executive staff; or ( B ) through simple or gross negligence by nuvo’s assistants in performance not mentioned in ( A ), then nuvo’s ensuing liability shall be limited to the amount which was foreseeable by nuvo at the time the respective Service was performed.

3. Subject always to Clauses 15.1 and 15.2, nuvo shall not be liable for damage resulting from the breach of non-primary obligations through (A ) simple negligence of nuvo, its legal representatives or executive staff; or ( B ) simple or gross negligence of nuvo’s assistants in performance not mentioned in ( A ).

4. nuvo shall be liable for loss of data only up to the amount of typical recovery costs which would have arisen had proper and regular data backup measures been taken by Customer.

5. Subject always to Clause 15.1, the total liability of nuvo arising out of or in connection with the Services Contract, whether in contract or tort or otherwise shall in no circumstances exceed a sum equal to 150% of the total Service Fees paid (plus Service Fees payable) by Customer in the twelve (12) months immediately preceding the event which gave rise to the liability.

6. Neither nuvo nor Customer shall be liable for any failure or delay in performance to the extent that such failure or delay is caused by force majeure, i.e., causes beyond their reasonable control and occurring without their fault or negligence.

7. Any more extensive liability of nuvo not covered by this Clause 15 is excluded on the merits.

16. Assignment | Novation

1. Customer may not assign (übertragen) the Services Contract without the prior written approval of nuvo and any purported assignment in breach of this Clause 16 shall be void. nuvo may at its discretion assign, or transfer to third parties the Services Contract and/or any rights pertaining thereto in whole or in part.

2. Customer shall, at nuvo’s request, promptly, and in any event within fifteen (15) days, enter into a novation agreement in such form as nuvo shall reasonably specify in order to enable nuvo to exercise its rights pursuant to this Clause 16.

3. Without prejudice to mandatory applicable law, Customer shall not assign any of its rights or obligations under any Services Contract and these Terms to any third party without the prior written consent of nuvo.

17. Severability

1. Should any provision of the Services Contract including the Order and these Terms be or become ineffective or invalid in whole or in part, the effectiveness and validity of the other provisions shall not be affected. Such ineffective or invalid provision shall be replaced by a provision that comes as close as legally possible to what nuvo and Customer would have agreed, pursuant to the meaning and purpose of the original provision and of the Services Contract if they had recognized the ineffectiveness or invalidity of the original provision. If the ineffectiveness or invalidity of a provision is based on the determination of a certain level of performance or a certain time (deadline or fixed date), such ineffective or invalid level or time shall be replaced by the level or time which comes as close as legally possible to the original level or time. The foregoing shall also apply to any possible omission in the Services Contract including the Order and these Terms that was not intended by nuvo and Customer.

18. Entire Agreement | Revisions

1. The Services Contract including the Order and these Terms shall represent the entire agreement between Customer and nuvo in respect of its subject matter and supersede and extinguish all prior negotiations, arrangements, understanding, course of dealings or agreements made between the Parties in relation to its subject matter, whether written or oral.

2. Without prejudice to Clause 18.3, valid amendments or supplements to these Terms must be made in writing. The same shall apply to any agreement to deviate from or cancel this requirement of written form.

3. nuvo may amend and/or update these Terms for existing Services Contracts with future effect from time to time and as necessary for technical, economic or legal reasons provided that this would neither constitute a change affecting the basis of the legal relationship between nuvo and Customer nor is equivalent to the conclusion of a new contract. Any revision of these Terms shall be announced to Customer in text form (simple email shall be sufficient) no later than six ( 6 ) weeks before their proposed effective date. Customer may either approve or object to the revision before their proposed effective date. The revision shall be deemed approved by Customer, unless Customer objects to the revision before their proposed effective date. nuvo shall expressly inform Customer thereof in the respective announcement. nuvo may amend and/or update these Terms for future Services Contracts at any time for any reason without notice.

19. Governing Law | Jurisdiction

1. The Services Contract and any issues, disputes or claims (whether contractual or non-contractual) arising out of or in connection with it or its subject matter or formation shall be governed by the laws of the Federal Republic of Germany excluding its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

2. The courts of Hamburg (Germany) shall have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) that arises out of or in connection with the Services Contract or its subject matter or formation.

20. Miscellaneous

1. The person signing or otherwise accepting the Order and these Terms for Customer represents that it is duly authorized to enter the Services Contract on behalf of Customer.

2. nuvo shall be entitled to retain subcontractors, including third party software suppliers, for the performance of any of its obligations in accordance with the Services Contract.

3. No agency, partnership, joint venture, or employment is created as a result of the Services Contract and Customer does not have any authority of any kind to bind nuvo in any respect whatsoever.
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ComDocks GmbH
District Court of Hamburg, Germany HRB 161538
June 2024

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