1. General provisions
The contractual relationship between Sensorberg GmbH, Mauerstraße 78-80, 10117 Berlin, (hereinafter referred to as "Sensorberg") and its contractual partners (hereinafter referred to as "contractual partners") shall be governed exclusively by these General Terms and Conditions (hereinafter also referred to as "GTC"), the order form and the service descriptions of Sensorberg, as well as any additionally agreed contractual/business conditions. General terms and conditions of the contractual partners do not apply unless Sensorberg has expressly agreed to them in writing.
2. Subject matter of the contract; installation requirements and infrastructure of the customer
2.1 SENSORBERG provides services in connection with a keyless, digital door access according to the respective separate service description and the order form. For this purpose an access system, consisting of different products and services, software and partly also hardware is provided or partly purchased by the contractual partner, is installed and activated. Once the system has been activated, the authorized users are registered by the contract partner. The authorized user can then open the doors electronically via the portal, the app or the transponder.
2.2 The software required for the function of the system is provided by way of Software as a Service and operated by a Sensorberg App, which the End User must download. The app is not visible to the end user as a Sensorberg app, but is made available to him by the contractual partner.
2.3 The SENSORBERG system has a high reliability, but no 100% functionality is guaranteed. For this reason, even after installation - depending on the specific individual case - in many cases the system can still be opened additionally by a special emergency card, by a remote release or by an analog key.
2.4 Contractual partners of SENSORBERG are always only the direct contractual partners of Sensorberg, but not the end customers (end users), such as apartment owners or tenants.
2.5 The contractual partner is responsible for providing the local infrastructure and installation requirements in accordance with the order form and service description. The latter applies comprehensively with regard to (a) installation, (b) operation and (c) permanent maintenance of the SENSORBERG system.
3. Prices, terms of payment; delivery
3.1 The prices of SENSORBERG do not include the statutory value added tax in the respective applicable amount. They usually consist of (a) provision of the platform and installation support, (b) costs of the hardware, (c) usage fees, (d) possible transport/supplier insurances, (e) project management and programming costs, (f) other items agreed according to the service description/order form.
3.2 Payment and due dates are based on the order form. Unless otherwise agreed separately, the following shall apply:
(a) Payment terms (due dates):
(i) For a one-time order value up to 20,000 EUR: Payable 100% after commissioning.
(ii) For a one-time order value of 20,000 EUR or more, the hardware costs are due in advance. Other costs, esp. software and services, are due in advance with commissioning.
(b) Recurring charges are payable in advance at the start of the term. Monthly charges are invoiced annually in advance, for the first time after commissioning for the first year.
(c) Unless otherwise agreed, payment for the purchase of hardware and all other services and deliveries shall be due 10 working days after receipt of the invoice.
3.3 Deliveries and delivery times are based on the order form. Unless otherwise agreed, delivery will be made 6-8 weeks after binding order and complete technical clarification.
3.4 SENSORBERG's usage contracts are made for the long term. Sensorberg reserves the right to adjust the current payments and other price lists. With regard to the current payments Sensorberg will inform the contracting party of any increase at the latest four months before the end of the term (or an extension period). If the customer expressly agrees or does not comment, the new remuneration shall apply from the beginning of the extension period. The customer shall be at liberty, irrespective of the three-month notice period, to give notice of termination in the event of price increases no later than one month after the end of the minimum term or the extension period.
3.5 Against claims of SENSORBERG the customer can only set off with such claims against SENSORBERG which are undisputed or legally binding.
4. Property of SENSORBERG, retention of title
4.1 SENSORBERG remains the sole owner of all SENSORBERG items and hardware to be installed/delivered ("SENSORBERG Hardware"), unless expressly agreed otherwise. The SENSORBERG Hardware and all other delivered items remain the sole property of SENSORBERG until the purchase price has been paid in full (retention of title).
4.2 The Sensorberg Software, Apps Source Code, API, the SENSORBERG Spaces Platform shall always remain the sole property of SENSORBERG. SENSORBERG shall only grant a non-exclusive right of use thereto for a limited period of time (cf. clause 8 below).
5. Installation support
5.1 SENSORBERG provides installation support according to the order form and can provide installation instructions to the contractual partner.
5.2 As a rule, an installation requires a minimum lead time of 8 weeks from the conclusion of the contract.
5.3 If a deployment or support at the place of the customer should be necessary, SENSORBERG will only pay for the costs which lie in the area of responsibility of SENSORBERG. For any costs which lie outside the area of responsibility of SENSORBERG, costs according to agreed price list are charged to the customer.
I. Regulation for delivery and purchase
6.1 For the SENSORBERG hardware to be delivered, the warranty period is 12 months / from delivery, depending on what is contractually owed.
6.2 If there is a material defect at delivery, SENSORBERG will, at its discretion, either repair the affected parts or replace them with defect-free parts, whereby Sensorberg is entitled to at least two attempts at repair. For this the contractual partner has to grant SENSORBERG an appropriate period of time. The rectification or replacement is neither accompanied by an extension of the warranty period nor a new start of the warranty period.
6.3 A defect report is made by using the support form provided by SENSORBERG to create a support request. The support form can be accessed at www.support.sensorberg.com. Depending on the type of request, only the creation of a support request starts the return process.
6.4 If the defect cannot be remedied within a reasonable period of time, the contractual partner may assert the statutory rights with regard to the defective parts in accordance with the statutory requirements.
6.5 A material defect shall in particular not exist in the following cases: (a) only insignificant deviation from the agreed quality, (b) in case of natural wear/tear, (c) in case of only insignificant impairment of the usability or d) in case of defective maintenance, insofar as and to the extent that this is not the responsibility of SENSORBERG.
6.6 In the case of a delivery contract, the contractual partner, who is an entrepreneur/trader, is obliged to examine the delivery item immediately after delivery by SENSORBERG and to report any defects immediately in text form. If he omits the notification, the delivery is considered as approved, unless the defect was not recognizable during the inspection.
6.7 If the contracting partner is an entrepreneur/trader, recourse claims in the sense of § 445a BGB (German Civil Code) against SENSORBERG exist only as far as the contracting partner has not made any agreements with his purchaser going beyond the legal claims for defects.
6.8 Claims for defects become time-barred 12 months after delivery of the item, unless SENSORBERG acts (a) intentionally or (b) fraudulently conceals the defect.
II. Regulation for use and permission agreements
6.9 In the event of a defect in the Leased Property, the Service Level Agreement agreed between the Parties shall apply primarily and conclusively. If a Service Level Agreement has not been agreed, the following shall apply: If the rental object has a defect which suspends its suitability for the contractual use, the contractual partner is released from the payment of the monthly fee proportionally for the time in which he cannot use the SENSORBERG access system for this reason, (a) as far as the contractual partner is not responsible for the defect himself or (b) the suspension of use is only of a temporary nature. Any warranty liability without fault pursuant to Section 536a (1) 1st Alt. shall be waived by mutual agreement,
6.10 If a defect is the responsibility of the contracting partner, SENSORBERG can charge the contracting partner for the removal of the defect including the (a) arrival/departure, (b) diagnosis, and (c) preparatory actions etc..
III. General regulations
6.11 SENSORBERG does not assume any warranty for obligations of the contractual partner, in particular the existence and functioning of the system and installation requirements, the customer's infrastructure, the provision of required batteries, and the condition and infrastructure of the building in which the SENSORBERG system is installed.
6.12 Damage caused by improper use of SENSORBERG products or in the area of responsibility of the customer/contract partner is not considered a defect.
6.13 Further claims of the contractual partner against SENSORBERG from and in connection with material defects do not exist.
7.1 Unless otherwise agreed, SENSORBERG guarantees for its products the compliance with industrial property rights/copyrights in the Federal Republic of Germany.
7.2 In case of an infringement of industrial property rights/copyrights within the warranty period SENSORBERG will at its own choice (a) obtain the necessary right of use, (b) change the access system or other services in such a way that no industrial property rights/copyrights are infringed any more or (c) carry out an exchange. If this is not possible from the point of view of SENSORBERG under reasonable conditions, the contractual partner is entitled to the legal rights.
7.3 The use of SENSORBERG hardware requires an agreement in the form of a use and license contract. The use and license agreement is not exclusive and is limited in time.
7.4 SENSORBERG grants the contractual partner the non-exclusive right of use, limited in time to the term of the contract, for the contractual use of the software provided, i.e., depending on the product, the SENSORBERG App, the SENSORBERG Smart Spaces Solution and any other software provided from and in connection with the SENSORBERG system. Any other use, in particular any modification, subletting or transfer that is not expressly permitted, is not permitted and constitutes a breach of contract.
7.5 The aforementioned use is bound to a valid contract with SENSORBERG, may only take place in connection with hardware provided by SENSORBERG or coordinated with SENSORBERG, and may not take place (a) improperly, (b) unlawfully or (c) in a punishable manner. Abuse by the contracting partner shall be deemed to have occurred in particular if it gains unauthorized access to the tenant's premises by means of the SENSORBERG app, SENSORBERG API, SENSORBERG transponder or the SENSORBERG portal or excludes the latter from the rented premises without authorization.
7.6 In case of a violation of the duties from this clause the contractual partner releases SENSORBERG on first written demand from all claims, which are brought to SENSORBERG in this connection especially by the tenants. Also included in the release on first written request are the reasonable costs of the legal defense.
8.1 Sensorberg shall be liable in accordance with the statutory provisions (a) in the event of intent or gross negligence, (b) in the event of injury to life, limb or health, (c) in accordance with the provisions of the Product Liability Act as well as (d) to the extent of a guarantee assumed by the contractor and (d) in the event of fraudulent action.
8.2 In the event of damage to property and financial loss caused by Sensorberg due to slight negligence, Sensorberg shall only be liable in the event of a breach of material contractual obligations, but limited to the damage foreseeable and typical for the contract at the time of conclusion. Material contractual obligations are those whose fulfillment enables the proper execution of the contract in the first place and on which the contracting parties may regularly rely.
8.3 The parties agree that the foreseeable and contract-typical damage within the meaning of the preceding paragraph shall not exceed the contract value of one year.
8.4 Any further liability of Sensorberg is excluded.
8.5 The above limitation of liability also applies in favor of Sensorberg's employees, representatives, organs and vicarious agents.
9. Term and termination
9.1 Usage/permission contracts for the SENSORBERG access system have a basic term of five (5) years, unless the parties have agreed otherwise. The basic term (and each renewal period) is automatically extended by one (1) further year in each case, unless they have been terminated in writing by the contractual partner or SENSORBERG 3 months before expiry.
9.2 The right to terminate for cause remains unaffected.
9.3 SENSORBERG is entitled to terminate for good cause in particular if (a) the contracting party breaches its material contractual obligations and does not cease the breach within  working days after being notified of the breach by Sensorberg (whereby the time limit shall not apply if the breach cannot be remedied), (b) the contracting party has twice defaulted on payment obligations in connection with this Agreement , (b)) the contracting party has in each case filed for insolvency, insolvency proceedings have been instituted against it or insolvency proceedings against the contracting party have been dismissed for lack of assets or (d) if it is determined that the effects of Force Majeure (see. Section 13.1) will last longer than 3 months.
9.4 The contracting party shall be entitled to terminate the contract for good cause in particular (a) if it is established that the effects of force majeure (cf. definition in §5 No. 3) will last longer than 6 months.
9.5 If SENSORBERG terminates for an important reason for which the contractual partner is responsible, SENSORBERG is entitled to a claim for damages against the contractual partner, which includes in particular the lost fees within the minimum term less saved expenses.
9.6 The contracting partner has to provide SENSORBERG access to the SENSORBERG hardware also after termination of the contractual relationship, so that SENSORBERG can remove the SENSORBERG hardware in its property.
9.7 The right to use the SENSORBERG software also ends with the termination of the contractual relationship.
10.2 In case of processing of personal data by Sensorberg on behalf of the customer, the parties shall also conclude a contract for commissioned data processing, which is attached to the order form as an annex.
11.1 Each contracting party shall use all documents (including samples, models and data) and knowledge obtained from the business relationship only for the jointly pursued purposes and shall keep them secret from third parties with the same care as its own corresponding documents and knowledge if the other contracting party designates them as confidential or has an obvious interest in keeping them secret.
11.2 This obligation begins from the first receipt of the documents or knowledge and ends 36 months after the end of the business relationship.
11.3 The obligation shall not apply to documents and knowledge which are generally known or which were already known to the contracting party at the time of receipt without the contracting party being obliged to maintain secrecy, or which are subsequently transmitted by a third party entitled to pass them on, or which are developed by the receiving contracting party without making use of documents or knowledge of the other contracting party which are to be kept secret.
12. Modification of the services and the GTC
12.1 Changes in Services: Sensorberg reserves the right to modify, limit and discontinue the services offered, unless this is unreasonable for the contracting party. Sensorberg further reserves the right to adapt or change the services to the extent that
(a) the changes or adjustments are only beneficial to the contracting parties, or
(b) the changes or adaptations are necessary to achieve compliance with applicable law, in particular also if the applicable legal situation changes, or to comply with a court judgment or an official decision, or
(c) if the changes or adjustments have no significant impact on functions of the Services or are of a purely technical or organizational nature.
12.2 Changes to the GTC: Sensorberg further reserves the right to change these GTC, unless this is unreasonable for the contracting partner. In the event of a change to the GTC, the contract partner will be notified of the changes at least 4 weeks in advance. If the contract partner does not object within this 4-week period or uses the services of Sensorberg again, the amended GTC shall be deemed accepted with effect for the future and shall become part of the contract at the time they become effective. In the notification containing the amended terms, Sensorberg will point out the effect of silence and the significance of the 4-week period.
12.3 Sensorberg furthermore reserves the right to adapt or amend the GTC, insofar as
(a) the changes or adjustments are only beneficial to the contracting parties, or
(b) the changes or adaptations are necessary to achieve compliance with applicable law, especially if the applicable legal situation changes, or to comply with a court ruling or an official decision,
(c) if the changes or adaptations have no significant impact on the functions of the services or are of a purely technical or organizational nature, or this concerns additional, entirely new services or services that require a description in the GTC, unless this would be detrimental to the current usage relationship.
13. Other provisions
13.1 Force Majeure
(a) "Force Majeure" shall be deemed to exist if an external event occurs which is not attributable to the sphere of risk or control of one of the parties, which cannot be foreseen and which cannot be averted even by exercising the utmost care, and as a result of which a party is prevented in whole or in part from performing the service owed by that party.
(b) If a case of Force Majeure pursuant to Clause 13.1 a) exists, the mutual obligations shall be suspended for the duration of the effect of the Force Majeure, provided that the hindered party has immediately informed the other party of the occurrence of the Force Majeure. The affected party shall not be liable for impossibility or delay of performance or delivery caused by Force Majeure. If the event of Force Majeure is of only temporary duration, the delivery or performance periods shall be extended or the delivery or performance dates shall be postponed by the period of the hindrance plus a reasonable start-up period. To the extent that the Force Majeure Event impairs, but does not preclude, the performance of the affected Party, such Party shall be entitled to reduce the performance owed under this Agreement to a reasonable extent for the period of the Force Majeure Event, at its own discretion and taking into account the interests of the other Party.
(c) If the effect of force majeure lasts longer than three months, the parties are entitled to withdraw from the contract.
(d) The Parties acknowledge that this Agreement is entered into during the ongoing and evolving global coronavirus pandemic. However, the potential impact of the coronavirus pandemic on the parties' contractual obligations remains unpredictable. Therefore, the parties agree that a party may not object to the other party's assertion of Force Majeure under this clause that such party had knowledge of the impediment to performance at the time of entering into this Agreement to the extent that such impediment to performance is due to the Coronavirus Pandemic.
13.2 The contractual relationship between SENSORBERG and its contractual partner and its interpretation is governed by German law, excluding the provisions of international private law and the UN Convention on Contracts for the International Sale of Goods ("CISG").
13.3 Place of performance is the registered office of SENSORBERG, unless otherwise agreed. The exclusive place of jurisdiction for all disputes arising directly or indirectly from or in connection with this contractual relationship is, as far as legally permissible, Berlin.
13.4 Claims or other rights against SENSORBERG may be transferred by the contractual partner only after explicit written consent of SENSORBERG.
13.5 Amendments or supplements to the contract must (subject to clause 12) be made in writing in order to be valid, and must expressly refer to this contract. This shall also apply to any agreement to deviate from or waive this formal requirement.
13.6 If any provision of this Agreement is or becomes void, invalid, unenforceable or unenforceable in whole or in part ("Defective Provision"), the validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby. Instead, the Parties undertake already now to agree on a provision in place of the Defective Provision which, to the extent legally possible, comes as close as possible to what the Parties would have agreed on in accordance with the spirit and purpose of this Agreement if they had recognized the defectiveness of the provision. The same shall apply to any loopholes in this agreement. It is the express intention of the parties that this severability clause does not result in a mere reversal of the burden of proof, but that Section 139 of the German Civil Code is waived in its entirety.