1. General | Scope
1. These nuvo End User License Terms (“Terms”) apply to all contracts between ComDocks GmbH, Schopenstehl 13, c/o The Office Group, 20095 Hamburg, Germany (“nuvo”) and its customers who are business owners (Unternehmer) within the meaning of § 14 of the German Civil Code (“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 agreement for future contracts between nuvo and Customer without nuvo being required to refer to them in each individual case. These Terms shall be deemed to be confirmed by Customer at the latest when Customer uses the Services.
4. These Terms apply to the exclusion of all others. Different, conflicting or supplementary standard terms of business shall only become part of a Services Contract if and to the extent that nuvo has consented to their application 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. 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 (for greater clarity: simple email to be sufficient) if not stated otherwise in these Terms.
8. References herein to the application of statutory provisions shall be for clarification purposes only. Consequently, statutory provisions shall apply even without such clarification provided that they are not directly amended by or expressly excluded in these Terms.
2. License Grant | Permitted Users
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 world-wide right and license to use the nuvo software 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 covering each such permitted User; (B) Customer shall procure that such permitted Users comply with these Terms and Customer shall remain 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. For the purposes of these Terms, “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under direct or indirect common control with Customer or nuvo respectively, or which is a wholly-owned subsidiary of Customer or nuvo respectively, whereby ‘control’ means owning, directly or indirectly, at least fifty-one percent (51%) of the equity securities or equity interests of an entity.
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; (G) configure the Services to collect (i) any data that is defined as sensitive personal data or ‘special categories of data’ within the meaning of the EU General Data Protection Regulation or any applicable national data protection law or regulation; (ii) passwords or other authentication credentials; (iii) any payment or other financial data, biometric data or genetic data; or (iv) any data relating to a person under the age of sixteen (16) years (collectively, “Prohibited Data”); or (H) 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 § 7 of the German Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung) or a similar applicable anti-boycott statute. Customer shall, at its own expense, obtain all necessary customs, import, or other governmental authorizations and approvals.
4. 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 shall have the right to 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”). 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 and any other material displayed, posted, uploaded, stored, exchanged or transmitted by Customer or any User on or through the Services (“Content”).
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 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 Content, 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 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 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 firstname.lastname@example.org 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 which minimizes errors and interruptions in the Services.
4. Customer may notify nuvo of any errors via email@example.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.
6. The fees for Maintenance and Support are included in the Service Fees.
7. Confidentiality | Customer Data
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 non-public data provided by Customer to nuvo to enable the provision of the Services or during the use of the Services (“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 any information that Customer or nuvo respectively can document (A) is or becomes generally available to the public; or (B) was in Customer’s or nuvo’s respective possession or known by them 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. Notwithstanding anything to the contrary, nuvo shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects 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 hereof) to (A) use such data and information to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other nuvo offerings; and (B) disclose such data and information solely in aggregate or other de-identified form in connection with its business.
8. Proprietary Rights | Trade Names and Logos | 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 and any Content, as well as any data that is based on or derived from the Customer Data and any Content. 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 and any Content solely to the extent necessary for the provision of the Services. nuvo shall have no liability for the Customer Data and any Content.
3. nuvo reserves the right to 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.
4. 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.
5. 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.
9. Data Protection | 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 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.
10. 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. nuvo reserves the right to change the Service Fees for the following Renewal Service Term upon at least ten (10) days prior to the end of the Initial Service Term or the end of the then current Renewal Service Term.
4. Unless otherwise specified, Customer shall make all payments via credit card. nuvo shall provide a secure link to Customer where they can upload the relevant credit card information. nuvo may offer Customer to make payments via bank wire using the payment details provided 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 to be sufficient), nuvo shall be entitled to 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.
11. 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 continuously renew for additional periods, each of which correspond with the Initial Service Term (“Renewal Service Term”), unless either party requests termination of the Services Contract according to the cancellation term stated in the Order Form.
2. Neither Customer nor nuvo shall be entitled to 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, (A) 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; (B) Customer is in default of payment by more than forty-five (45) days; (C) Customer breaching the use restrictions under Clause 3; or (D) 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 Term or Renewal Service Term taking effect, nuvo may suspend Customer’s access to the Services and delete any Content (if any) in the possession of nuvo after a period of thirty (30) days. Customer shall be solely responsible for extracting all such Content before any suspension. Upon Customer’s request, nuvo may choose to extract and/or manipulate Customer’s Content against an additional Service Fee.
12. 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 or if nuvo so confirms 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 requires the written confirmation from a director of nuvo.
2. nuvo warrants (gewährleistet) that the Services will, in all material respects, conform to the functionality described in 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 must 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 14.
3. Under no circumstances shall Customer be entitled to obtain the source code of the Services.
13. 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 technology; (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 date of termination).
2. Clause 13.1 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 13.1 shall be Customer’s sole remedy with respect to any Third-Party Claim.
14. 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, its legal representatives or executive staff; (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, senior executives or assistants in performance. Primary obligations are such basic duties which 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 14.1 and 14.2, 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 not be liable for any loss, damage or harm suffered by Customer that is directly or indirectly caused by Customer’s unauthorized use of the Services to process Prohibited Data.
5. 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.
6. Subject always to Clause 14.1, 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.
7. Any more extensive liability of nuvo not covered by this Clause 14 is excluded on the merits.
15. No Set-off | Limitation of Right of Retention
1. 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.
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 15 shall be void. nuvo may at its discretion assign, or transfer to third parties the Services Contract and/or any associated rights 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 15.
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 which comes as close as legally possible to what the Parties 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 the Parties.
18. Entire Agreement | Changes
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. 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. Clause 18.3 shall remain unaffected.
3. nuvo may amend and/or update these Terms for existing Service 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 the Parties 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 to 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 Service Contracts at any time at its own discretion.
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.
1. The person signing or otherwise accepting the Order and these Terms for Customer represents that it is duly authorized by all necessary and appropriate corporate action 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. Customer shall not assign (abtreten) any of its rights or obligations under the Services Contract and these Terms without the prior written consent of nuvo.
4. 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.
District Court of Hamburg, Germany HRB 161538
Please contact us at firstname.lastname@example.org