General Terms and Conditions of Use (GTCU)
for the use of Nexaro HUB belonging to
- hereinafter referred to as “NEXARO” -
1 Scope of validity and definitions
- NEXARO operates an online service (hereinafter referred to as "Nexaro HUB") to manage and control Nexaro devices under the hub.nexaro.com domain.
- These General Terms and Conditions of Use (GTCU) apply to the use of the Nexaro HUB, including all related services, in the version that is respectively applicable at the time of entering into a contract. The purchase or use of Nexaro devices, including wireless connection via mobile networks, is not the subject of these GTCU.
- Conflicting, deviating or supplementary terms and conditions of the CUSTOMER shall not apply. This also applies if NEXARO does not expressly object to them.
- “CUSTOMERS” are entrepreneurs in terms of Section 14 of the German Civil Code (§ 14 BGB). Accordingly, an entrepreneur is any natural person, legal entity or partnership with legal personality that acts in the exercise of his or its trade, business or profession when entering into a legal transaction. The offer provided by NEXARO is expressly not directed at consumers within the meaning of Section 13 of German Civil Code (§ 13 BGB).
- END CUSTOMERS are entrepreneurs who use the products and services for their own business purposes.
- The respectively applicable version of these GTCU can be called up and stored here.
- Nexaro reserves the right to amend these GTCU with effect for the future. In this case, Nexaro will notify the CUSTOMER of the changes in an appropriate form.
- The amended GTCU will be published and communicated to the CUSTOMER no later than 30 days before the scheduled date of their entry into force. The amendments shall take effect
- if the CUSTOMER does not object to the GTCU before the scheduled date of entry into force of the changes and the CUSTOMER has been expressly informed in the change notification that failure to object will result in the User agreeing to the amended Terms and Conditions of Use;
- if they have been indicated to the CUSTOMER when using the Nexaro HUB and the CUSTOMER actively agrees to the changes
- In the event of an objection to changes to the GTCU by the CUSTOMER, NEXARO shall be entitled to terminate the contractual relationship with the CUSTOMER with a notice period of two weeks to the end of the month.
3 Establishment of the contractual relationship
- The contractual partner of the CUSTOMER is NEXARO. The CUSTOMER shall undertake to provide proof of their entrepreneurial status upon contract conclusion.
- The CUSTOMER shall undertake to ensure that the data transmitted by it within the framework of the conclusion of the contract is complete and correct. Changes occurring during the term of the contractual relationship must be immediately communicated by the CUSTOMER.
- The CUSTOMER can choose between the current available licenses. The order is placed by clicking on the “Register” button and constitutes a binding offer from the CUSTOMER to NEXARO for the conclusion of a contract. Before clicking on the button, the CUSTOMER can check their product selection and correct it if necessary. The contractual basis including these GTCU can be accessed and saved before submitting the order. The CUSTOMER is required to agree to the GTCU that are valid at the time of placing the order and all declarations and agreements referred to therein when placing the order. By agreeing, the CUSTOMER confirms their knowledge of and unrestricted acceptance of the contents of these GTCU.
- The contract is concluded exclusively with END CUSTOMERS in accordance with Clause 1.2f. of these GTCU. Upon placing its order, the CUSTOMER confirms they are of legal age and entitled by law to conclude contracts for the CUSTOMER and to act as an entrepreneur within the scope of their entrepreneurial activity. NEXARO reserves the right to verify the status of the CUSTOMER as an end customer and the creditworthiness of the CUSTOMER using appropriate measures.
- The CUSTOMER receives an email from NEXARO confirming receipt of the order and stating its details (order confirmation). In principle, this confirmation does not constitute acceptance of the offer by NEXARO. The contract is concluded by means of a separate order confirmation, but at the latest when the CUSTOMER gains access to its active customer account in the Nexaro HUB.
- The CUSTOMER is not entitled to conclude a contract. In particular, NEXARO reserves the right not to accept the contract in the event of the lack of end customer status or negative creditworthiness information. NEXARO shall inform the CUSTOMER accordingly.
- The language of the contract is German or English.
4 Customer account and license model; changes to the license
- NEXARO provides the CUSTOMER with the services and functionalities of the Nexaro HUB exclusively for certain geographical areas (hereinafter referred to as the Contractual Territory). An up-to-date list of these countries is available here. The contract territory is determined by the region in which the CUSTOMER has its registered office.
- The CUSTOMER can choose between the available licenses of the license model within the scope of the contract conclusion. The following conditions apply in this regard:
- For the use of the Nexaro HUB in several Contractual Territories, separate contractual relationships must be concluded for each Contractual Territory.
- The activation and use of NEXARO devices with a customer account is only permitted if the respective device is located in the Contractual Territory.
- Each CUSTOMER shall only be entitled to have one Pro.Single customer account per Contractual Territory.
- The CUSTOMER can add additional users within the scope of the Pro.Multi customer account. However, the CUSTOMER remains responsible for all activities within the scope of the customer account.
- Customer accounts are only transferable to third parties with the prior consent of NEXARO.
- A change of license under the current license model is possible with the prior consent of NEXARO. The change to another license requires the conclusion of a corresponding contractual relationship and the establishment of a new customer account together with activation of the devices.
5 Fees and terms of payment, retention and set-off
- The fees shown for the licenses are monthly net prices for activation and the associated possibility of use per device. Billing takes place per calendar month. If a device is activated or deactivated during a current calendar month, the calculation is made on a pro rata temporis basis.
- If the CUSTOMER adds a Nexaro device that it has purchased in combination with a Pro.Multi license (in the so-called Nexaro bundle), no additional fees will be charged for this device for the intended period from the activation of the device.
- Fees are invoiced monthly and are due upon receipt of the invoice and payable within 30 days. Upon expiry of the aforementioned payment period, the CUSTOMER shall be in default of payment.
- In the event of default in payment, NEXARO shall be entitled
- to charge a lump sum of EUR 7.50 for each reminder. The CUSTOMER is expressly entitled to prove that a lower degree of damage or no damage at all has occurred. NEXARO reserves the right to assert further damage caused by default.
- to demand default interest in the amount of nine percentage points above the base interest rate.
In the event of a significant payment in arrears amount, NEXARO shall be entitled to temporarily block the services in whole or in part. In this case, the CUSTOMER remains obliged to pay the monthly fees. NEXARO reserves the right to assert further claims due to default in payment.
- Invoices within the EU may be sent by mail or email at the discretion of NEXARO. The CUSTOMER shall agree to receive invoices electronically. Electronic invoices are sent to the CUSTOMER by email in PDF format.
- The CUSTOMER will check each invoice for correctness and raise any objections within eight weeks of receipt of the invoice. After expiry of the deadline, objections are excluded.
- NEXARO is entitled to change the fees with a reasonable notice period of at least six weeks, provided that the change is reasonable for the CUSTOMER, taking into account the interests of the CUSTOMER. In the event of a price change, the CUSTOMER has the right to terminate the contract without notice at the time the change takes effect. This shall not apply if the change is exclusively based on a change in taxes, fees, levies and contributions imposed by public authorities or has an effect in favor of the CUSTOMER. The CUSTOMER will be separately informed of its right of termination in the change notification.
- The CUSTOMER shall only be entitled to rights of offsetting or retention to the extent that its claim is legally established or undisputed. Any rights of the CUSTOMER with regard to defects shall remain unaffected.
6 Intended use
- The intended use of the Nexaro HUB requires Internet access of the CUSTOMER and a Nexaro device with the latest firmware. The functional scope of the services and functionalities as well as the technical requirements for their use (system requirements) are conclusively specified on the pages at nexaro.com. Other information or requirements shall only determine the nature and scope of the services and functionalities if the contracting parties expressly agree to this.
- The use of the full functionality of the Nexaro HUB requires the activation (pairing) of a Nexaro device via the customer account, which may incur costs depending on the license at hand. The CUSTOMER and, if applicable, its users can deactivate activated Nexaro devices at any time via the customer account (unpairing). However, to use the full range of functions, the activation of at least one device is necessary.
- NEXARO shall provide the CUSTOMER, through the Nexaro HUB, with software updates necessary for the operation of the Device, including its connection to the Nexaro HUB.
- NEXARO shall be entitled to further develop the Nexaro HUB at any time and add, change or remove individual services or functionalities insofar as such changes are reasonable for the CUSTOMER or NEXARO is obliged to do so by law. There is no entitlement to the retention of a certain range of functions. Changes and amendments will be notified to the CUSTOMER within a reasonable period of time, but no later than four weeks before their implementation.
7 Technical provision
- During the term of the contractual relationship, NEXARO shall provide the CUSTOMER with access to the Nexaro HUB and the services and functionalities provided thereon with an availability of 95% per calendar year.
- The use of certain services and functionalities requires the connection of Nexaro devices. The connection takes place via the integrated communication system and communication networks that communicate with the Nexaro HUB, which are however not operated by NEXARO and are not subject to the contractual relationship. The connection to the Nexaro HUB may therefore be unavailable from time to time and/or may be impaired by physical conditions, location of the equipment, atmospheric conditions or other causes of faults beyond the control of NEXARO.
- NEXARO is entitled to temporarily shut down the Nexaro HUB or individual services for the purpose of maintenance ("scheduled maintenance times"). NEXARO will inform the CUSTOMER sufficiently in advance of planned maintenance times.
- NEXARO shall be entitled to disable the accessibility of the Nexaro HUB in whole or in part to ensure the security, integrity and stability of the overall system if external circumstances so require.
- Unavailability according to Clause 7.1 does not apply if access to the Nexaro HUB is disturbed or unreachable due to scheduled maintenance times, or other maintenance measures of which the CUSTOMER has been informed by e-mail at least eight hours in advance. The same shall apply mutatis mutandis in the event of deactivation to ensure the security, integrity and stability of the overall system, culpable causation by the Customer or third parties, causation by acts of God or other events unforeseeable and unavoidable at the time of contract conclusion for which NEXARO is not responsible (e.g. operational disruptions of all kinds at NEXARO, third parties commissioned by NEXARO, or at their suppliers, due to epidemics, official orders).
8 Rights of use
- NEXARO shall grant the CUSTOMER a simple, non-exclusive and non-transferable right, limited in time to the term of the contractual relationship, to use the services and functionalities of the Nexaro HUB as intended.
- Notwithstanding the intended use of customer accounts within the scope of the licensing model, the CUSTOMER is not entitled to grant rights of use to the services and functionalities vis-à-vis third parties.
- All rights to the information and data provided by the CUSTOMER in the context of the use of the Nexaro HUB remain with the CUSTOMER. Provided this is necessary for the implementation of the contractual relationship, the secure operation or the further development of the Nexaro HUB and NEXARO products, NEXARO is entitled to use the information and data for these purposes, in particular to store, analyze and reproduce it and to make changes to the structure of the data and the data format.
9 CUSTOMER obligations
- The CUSTOMER shall fulfill all responsibilities and obligations necessary for the proper execution of the contractual relationship. In particular, the CUSTOMER undertakes
- to keep the usage and access authorizations assigned to it secret, to protect them from access by third parties and not to pass them on to third parties. This data must be protected by the CUSTOMER and its users by appropriate technical and organizational measures. The CUSTOMER shall immediately inform NEXARO if there is a suspicion that the access data and/or passwords have been disclosed to unauthorized persons;
- to take appropriate measures to ensure that NEXARO devices are only added to or removed from the Customer's account by appropriately authorized users;
- To only manage those Nexaro devices via a customer account that are located in the Contractual Territory during the term of the contractual relationship;
- to immediately notify NEXARO of any errors or malfunctions, stating the information known to it and useful for its detection or reproducibility;
- when using the Nexaro HUB, to ensure that the rights of third parties are not violated and that data protection regulations are complied with;
- to back up and store on its own storage medium all data and information stored in the Nexaro HUB that it needs or may need for the purposes of preserving evidence, accounting or other purposes;
- to ensure that users under its management are informed about and comply with the content of the GTCU and the obligations of the CLIENT;
- to install device software updates provided by NEXARO for activated devices within a reasonable period of time.
- The CUSTOMER shall undertake to refrain from all actions that endanger the safe operation of the Nexaro HUB and the technical infrastructure or go beyond its intended use. In particular, it shall be obliged to refrain from
- distributing viruses or other technologies that may interfere with the services or the interests of third parties;
- exposing the technical infrastructure to an excessive load or otherwise interfering with or endangering the operation of the Nexaro HUB;
- circumventing measures designed to prevent or restrict access to the platform and its contents.
10 Data protection
- Personal data is processed by NEXARO within the framework of the statutory provisions. Further information on the handling of personal data by NEXARO can be found in the data protection information. These can be called up at any time here.
- Provided that NEXARO processes personal data on behalf of the CUSTOMER in the context of Nexaro HUB use, the provisions of the agreement on order processing shall additionally apply. These are part of the contractual agreement with the CUSTOMER in the version valid at the time of its conclusion.
11 Term of contract and termination
- The contract period begins with the conclusion of the contractual relationship and runs for an indefinite period, unless otherwise agreed.
- The contractual relationship can be terminated by either party with a notice period of four weeks to the end of the calendar month, but not before the expiry of an agreed minimum contract period. It is equivalent to the CUSTOMER's declaration of termination if the CUSTOMER deletes its customer account via the corresponding function.
- If the parties have agreed on a specific contract period, the contract term shall be extended by 12 months (extension term) if the contractual relationship is not terminated with a notice period of four weeks prior to the respective expiry of the contract term or extension term.
- The right to terminate the contract for good cause remains unaffected. An important reason exists for NEXARO in particular if
- the CUSTOMER is in arrears with payment of the remuneration for more than two months;
- the CUSTOMER culpably violates essential provisions of the GTCU (in particular, Clauses 3.1, 3.2, 4.2.1, 8.2, 9.1, 9.2) and does not remedy the breach within a reasonable period of time;
- insolvency proceedings or comparable legal proceedings over the assets of the CUSTOMER have been applied for by the CUSTOMER or creditors, such proceedings are opened or the opening of which is rejected for lack of assets. However, after filing for the opening of insolvency proceedings, NEXARO shall not be entitled to terminate the contract due to a delay in the payment of the remuneration that occurred in the period prior to the application for insolvency proceedings or due to a deterioration in the CUSTOMER's financial circumstances.
- Terminations must be made in written form (§ 126 BGB).
- NEXARO shall be entitled to transfer rights and obligations arising from the contractual relationship to one or more third parties (transfer of contract). NEXARO will inform the CUSTOMER of a transfer of the contract and the time of the assumption of the contract. In the event of acceptance of the contract, the CUSTOMER shall be entitled to terminate the contractual relationship within a period of 10 working days from receipt of the notification at the time of acceptance of the contract (special right of termination).
12 Consequences of contract termination
- In the event of termination of the contractual Agreement, NEXARO shall, upon request, provide the CUSTOMER with the data that was the subject of order processing on a permanently readable mobile data carrier or for download against reimbursement of the associated expenses.
- The stored data will be deleted 30 days after the release of the data to the CUSTOMER, but no later than six months after termination of the contractual relationship.
- NEXARO warrants that the Nexaro HUB and the associated services are not affected by disturbances that cancel or reduce their suitability for contractual use. However, an insignificant reduction in suitability is irrelevant. This is the case if the availability or use of the services is possible without or with insignificant restrictions.
- In the event of disruptions in the provision of the Nexaro HUB, NEXARO will take the necessary measures to remedy the fault.
- If NEXARO does not successfully complete the troubleshooting within a reasonable period of time after becoming aware of it, the CUSTOMER shall be entitled to set a deadline. After expiry of this period, the CUSTOMER shall be entitled to demand an appropriate reduction of the remuneration or terminate the contractual agreement. If NEXARO is responsible for the defect, the CUSTOMER shall, in addition to the right to termination, be entitled to claim damages if the statutory requirements are met. The provisions in Clause 14 shall remain unaffected.
- In accordance with the statutory provisions, NEXARO shall be liable without limitation for damages due to injury to life, body or health that are based on an intentional or negligent breach of duty, for other damages that are based on an intentional or grossly negligent breach of duty, and for fraudulent intent. Furthermore, NEXARO shall be liable without limitation for damages determined as liability by the mandatory statutory provisions, such as the German Product Liability Act (ProdHaftG), as well as in the case of the assumption of warranties.
- NEXARO shall be liable for damages not covered by Section 14.1 and that are caused by simple or slight negligence only insofar as such negligence concerns the infringement of contractual obligations, the fulfillment of which makes the proper implementation of the contract possible in the first place, and the compliance with which the CUSTOMER may generally rely upon (referred to as cardinal obligations). In this respect, the liability of NEXARO shall be limited to the foreseeable damages typical for the contract.
- The limitations according to Section 14.2 shall also apply to the benefit of the legal representatives and vicarious agents of NEXARO.
- The strict liability of NEXARO according to Section 536a (1) of the German Civil Code (§ 536a (1) BGB) due to defects that already exist at the time of contract conclusion is excluded.
15 Applicable law and place of jurisdiction
- The contractual relationship between NEXARO and the CUSTOMER shall be governed by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
- If the CUSTOMER is a merchant, a legal entity according to public law or a special fund according to public law, the place of performance and place of jurisdiction for all disputes arising from the contractual relationship shall be the registered office of NEXARO. This shall also apply in the event that the CUSTOMER, who is an entrepreneur, has no general place of jurisdiction in Germany. However, NEXARO shall also be entitled to file suit against the CUSTOMER at its place of business.
Last updated: 02.12.2022