General Terms and Conditions of NIMMSTA GmbH

I. General provisions
§ 1 Definitions
The following definitions apply to these General Terms and Conditions:
1.1 ‘GTC’ means these General Terms and Conditions.
1.2 ‘App’ refers to the NIMMSTA app for Android or Windows, which is made available to the customer for use on loan or for a fee.
1.3 ‘NIMMSTA’ means NIMMSTA GmbH, Moosacher Straße 73, 80809 Munich, Germany, Commercial Register: HRB 248 756, Register Court: Munich.
1.4 ‘Continuing obligation’ means a contractual relationship that continues over a longer period of time and involves regularly recurring services or actions between the contracting parties, e.g. contracts for the temporary provision of apps, rental agreements or contracts for the provision of SaaS services.
1.5 ‘Electrical and electronic equipment’ means electrical and electronic equipment within the meaning of Section 1 No. 1 ElektroG.
1.6 ‘ElektroG’ means the law on the placing on the market, take-back and environmentally sound disposal of electrical and electronic equipment.
1.7 ‘Hardware’ refers to physical products, in particular smartwatches and their accessories such as trigger pads, cuffs or chargers.
1.8 ‘Customer’ means the respective contractual partner of NIMMSTA who concludes or has concluded a contract with NIMMSTA on the basis of these GTC for deliveries and/or services of NIMMSTA.
1.9 ‘Party’ means NIMMSTA or the Customer, depending on the context. NIMMSTA and the Customer are also jointly referred to as ‘the Parties’. A party that discloses information to the other party is referred to as the ‘disclosing party’.
1.10 ‘SaaS’ (Software as a Service) refers to the provision of the functionalities of software applications by NIMMSTA for use by the Customer via the Internet. The software application is operated by NIMMSTA in a data centre. There is no physical delivery of the software application to the customer.
1.11 ‘In writing’ or ‘written form’ refers to the form of § 126 BGB. The telecommunicative transmission of a declaration by simple e-mail is not sufficient.
1.12 ‘Software product’ means the software application that NIMMSTA provides to the customer as part of SaaS or otherwise.
1.13 ‘Text form’ means the form defined in Section 126b BGB. A simple e-mail is sufficient text form.
1.14 ‘Delivery point’ means, in the case of the provision of SaaS services by NIMMSTA, the gateway at which the data centre in which the servers on which the relevant software application is operated is connected to the public Internet.
1.15 ‘Entrepreneur’ means a natural or legal person or a partnership with legal capacity that, when entering into a legal transaction, acts in the exercise of its commercial or independent professional activity (Section 14 BGB).
1.16 ‘Confidential information’ means all information in connection with the business operations of the disclosing party which is not in the public domain but known only to a limited group of persons and in the confidentiality of which the disclosing party has a legitimate interest, irrespective of whether it is communicated to the receiving party in written, electronic, embodied or oral form or otherwise made accessible (e.g. by granting electronic access) or becomes accessible for other reasons. Confidential information includes in particular
– commercial information such as customer lists, price and financial data and sources of supply
– Expertise, technical information such as methods, processes, formulas, techniques and inventions, software, in particular object and source code
– all other information which the disclosing party recognisably identifies as confidential for the receiving party.
§ 2 Scope of application
2.1 These General Terms and Conditions (GTC) apply to all contracts for deliveries or services of NIMMSTA with customers who conclude the relevant contracts as entrepreneurs, legal entities under public law or special funds under public law.
2.2 These GTC consist of the general provisions (I. ) and the special provisions (II. to VII. ) additionally applicable to the relevant deliveries or services of NIMMSTA.
2.3 These GTC shall also apply in the version valid at the time of the first order by a customer to future contracts for deliveries or services with the same customer, without NIMMSTA having to refer to them again in each individual case. NIMMSTA’s right to amend these GTC remains unaffected. However, the amended GTC shall only apply once NIMMSTA has notified the customer of the amended GTC and only for commissions or orders after the customer has received notification of the amendment.
2.4 These GTC shall apply exclusively within the scope of application in accordance with point 2.1. Deviating, conflicting or supplementary general terms and conditions of the customer shall only become part of the contract if and to the extent that NIMMSTA has expressly agreed to their validity. This requirement of consent applies in all cases, for example even if NIMMSTA carries out the deliveries or services to the customer without reservation in the knowledge of the customer’s general terms and conditions.

2.5 Individual agreements made with a customer in individual cases (including collateral agreements, supplements and amendments) shall take precedence over these GTC.

§ 3 Fulfilment of services and execution of the contract, employees
3.1 NIMMSTA is responsible for deciding which persons are deployed by NIMMSTA within the scope of the fulfilment of the contract. The Customer may demand the replacement of NIMMSTA’s employees only for good cause. The Customer has no right under labour law to issue instructions (right of direction) to NIMMSTA’s employees.
3.2 NIMMSTA is authorised to employ vicarious agents for the execution of an order or the provision of services.
3.3 Separable partial services shall be deemed to be owed independently of each other, insofar as this is reasonable for the customer.
3.4 Unless otherwise agreed, delivery ex works is owed.
§ 4 Service content and reservation of self-delivery
4.1 Unless otherwise agreed, the details of the services owed by NIMMSTA are set out in NIMMSTA’s offer documents, the associated service description and these GTC.
4.2 If NIMMSTA is unable to deliver ordered goods through no fault of its own because NIMMSTA’s supplier fails to fulfil its contractual obligations, NIMMSTA is entitled to withdraw from the contract with the customer. However, this right of cancellation shall only apply if NIMMSTA has concluded a congruent covering transaction with the supplier concerned (binding, timely and sufficient order for the goods) and NIMMSTA is not responsible for the non-delivery of the goods in any other way. In the event of such a cancellation, the customer will be informed immediately that the ordered goods are not available. Any payments already made by the customer will be refunded immediately

§ 5 Deadlines
5.1 Dates specified unilaterally by the customer (e.g. in an order) are generally desired dates that are still subject to a joint review by the parties and can therefore only be agreed as binding performance dates after the service provision has been detailed and organised. This also applies if NIMMSTA does not expressly object to performance dates stated by the customer in orders or, in the case of an order received prior to conclusion of the contract, has not expressly objected to them.
5.2 NIMMSTA is not responsible for delays due to circumstances for which the customer is solely or predominantly responsible (e.g. delayed provision of co-operation services, delays caused by third parties attributable to the customer, etc.).In such cases, NIMMSTA is entitled – without prejudice to any further claims – to postpone the provision of the services concerned by a period of time appropriate to the duration of the aforementioned circumstances.
5.3 If NIMMSTA is prevented from meeting a delivery or performance deadline or date through no fault of its own due to unforeseen circumstances beyond the control of NIMMSTA or its vicarious agents, these deadlines shall be extended or postponed appropriately, but at least by the duration of such obstacles.
Such circumstances include, for example, force majeure, pandemics or epidemics, network failure or general disruptions to telecommunications.The legal claims of the parties remain unaffected.
5.4 NIMMSTA shall inform the Customer if it becomes aware of circumstances that could lead to a delay in the provision of services by NIMMSTA.

§ 6 Provisions for the provision of software
The following provisions apply when NIMMSTA provides the customer with software (including apps), regardless of whether the provision is permanent or temporary.
6.1 The permissible scope of use of software that NIMMSTA provides to the Customer is governed by the contractual agreement and the relevant special provisions in these GTC.
6.2 Temporary provision of the software (e.g. as Application Service Providing – ASP or Software as a Service – SaaS) for third parties or the use of the software for the provision of services for third parties is not permitted without the prior written consent of NIMMSTA. Commercial leasing is generally prohibited.
6.3 Duplication of the software is only permitted to the extent that this is necessary for use in accordance with the contract. The customer may make backup copies of the software to the extent necessary in accordance with the rules of technology. Backup copies on movable data carriers must be labelled as such and provided with a copyright notice in favour of NIMMSTA.
6.4 The customer is only authorised to make changes, extensions and other modifications to the software within the meaning of § 69 c No. 2 UrhG insofar as this is permitted by law. The customer is only authorised to rectify errors in the software itself or through third parties if and insofar as NIMMSTA is unwilling or unable to rectify an error in the software reported by the customer.
6.5 The Customer shall only be entitled to decompile the software within the limits of Section 69e of the German Copyright Act (UrhG) and only if NIMMSTA has not provided the necessary data and/or information to establish interoperability with other hardware or software after being requested to do so within a reasonable period of time.
6.6 If NIMMSTA provides the customer with additions or modifications to the software, e.g. as part of the rectification of defects or the delivery of updates, these are also subject to the provisions of these GTC that apply to the software.The same applies to the provision of a new edition of the software (hereinafter ‘new edition’), which replaces the software as a whole or individual modules, apps and/or other software components (hereinafter collectively ‘old software’).
If NIMMSTA provides the customer with a new edition of software, the customer’s rights of use and other authorisations in relation to the respective replaced legacy software expire as soon as the new edition is used productively by the customer for the first time, but no later than four weeks after the first use. However, the rights of use and other authorisations of the customer in relation to the old software do not expire if the new edition is provided to the customer on the basis of a separate purchase or rental agreement for the new edition.NIMMSTA is authorised to make changes to the software as part of updates or a new edition of the software.If the updates or new editions are provided on the basis of a contract against payment or as part of the warranty, this is only permitted if the changes do not restrict the functional scope of the software to the detriment of the customer and the change is reasonable for the customer. A new familiarisation of the customer with a possibly changed programme structure or user guidance does not constitute unreasonableness in principle.

§ 7 Place of deployment
7.1 The place of deployment of NIMMSTA employees shall be determined by prior agreement between the parties and by the respective service to be provided.
7.2 If NIMMSTA’s services are to be performed on the customer’s premises and special rules and regulations applicable there (in particular access regulations, safety and accident prevention regulations) must be complied with, the customer is obliged to inform NIMMSTA proactively and in good time about such rules and regulations and their content.
7.3 Work on the customer’s IT systems, including the analysis and rectification of any errors or defects in NIMMSTA’s services, shall primarily be carried out remotely via a secure remote connection, unless there are compelling reasons to the contrary or a deviating agreement has been reached between the contracting parties.

§ 8 Prices and general terms of payment

8.1 The prices for NIMMSTA’s services are set out in NIMMSTA’s offer commissioned by the customer or in another agreement between the parties.
8.2 The prices quoted for deliveries or services by NIMMSTA are exclusive of the applicable statutory value added tax.
8.3 Recurring payments, e.g. for SaaS services, billing services, rental or maintenance contracts, are due in advance for the agreed billing interval.
8.4 In the case of a direct debit, NIMMSTA shall inform the customer of the debit (amount and due date) with a notice period of one day (pre-notification). If the due date falls on a non-banking working day, the debit will be made on the next banking day. In the case of recurring direct debits, a pre-notification shall be sent before the first direct debit collection, stating the future due dates.
8.5 In the event of late payment by the customer, NIMMSTA may temporarily suspend the provision of its services until payment has been made in full, unless this would be contrary to good faith under the circumstances, in particular due to the relative insignificance of the outstanding payment. The customer remains obliged to pay even during a corresponding suspension of services. Further claims and rights of NIMMSTA due to default of payment remain unaffected by this.
8.6 The customer may only offset counterclaims that the customer bases on material defects or defects of title in NIMMSTA’s services against NIMMSTA’s claims if the amount set off does not exceed the reduced value of the service concerned due to the defect or the anticipated costs of subsequent fulfilment or rectification of the defect. Otherwise, offsetting against claims by NIMMSTA is only permitted with undisputed or legally established counterclaims.
8.7 Goods delivered to the customer remain the property of NIMMSTA until payment has been made in full.
8.8 If, in the case of continuing obligations, the customer is in arrears with payment of an amount equal to the remuneration for two months, NIMMSTA is entitled to terminate the contract for these services without notice.

§ 9 Billing interval and contract term for continuing obligations
9.1 The remuneration and the billing interval for recurring obligations against payment are set out in the offer from NIMMSTA commissioned by the customer or in another agreement between the parties. Unless otherwise agreed, the billing interval is one month.
9.2 The initial term (minimum term) of the contract results from the agreement between the parties. Unless otherwise agreed, the minimum term is 12 months.
9.3 After expiry of the minimum term, the contract shall be extended continuously for a further 12 months (extension period) unless it is cancelled by either party with three months’ notice to the end of the respective term. Notwithstanding the above, the extension period shall correspond to the minimum term if the minimum term is less than 12 months; in this case, the cancellation period shall be one month.
9.4 The right of the parties to terminate the contract for good cause remains unaffected by the above provisions.
9.5 Cancellations must be made in text form.

§ 10 Price adjustment for continuing obligations
NIMMSTA is authorised or obliged to make a price adjustment within the framework of existing continuing obligations in accordance with the following provisions:
NIMMSTA will adjust the prices to be paid by the customer within the framework of a continuing obligation at its reasonable discretion to the development of the costs that are decisive for the price calculation. A price increase may be considered and a price reduction may be applied if, for example, production or licence costs, costs for the technical provision and distribution of the services, costs for processing payment and invoicing, overheads such as rent for office space and financing costs, personnel costs and energy costs as well as government-imposed fees and taxes change.
Increases in one type of cost may only be used for a price increase to the extent that they are not offset by any decreases in costs in other areas. In the event of cost reductions, NIMMSTA shall reduce prices insofar as these cost reductions are not fully or partially offset by increases in other areas. When exercising its reasonable discretion, NIMMSTA shall select the respective points in time of a price change in such a way that cost reductions are not taken into account according to standards that are less favourable to the customer than cost increases, i.e. cost reductions are effective at least to the same extent as cost increases.
10.1 Changes to prices in accordance with Section 0 are only possible on the first day of the month. NIMMSTA will notify the customer of the change in text form at least 6 weeks before the planned effective date.
10.2 In the event of a price change, the customer has the right to terminate the contract affected by the price increase in text form with a notice period of two weeks to the date on which the change takes effect.NIMMSTA will inform the customer of this separately in the price change notification. In the event of cancellation, the price change will not take effect for the customer. Otherwise, § 315 BGB remains unaffected.

§ 11 General obligations of the customer to co-operate and provide information
11.1 The customer is obliged to provide reasonable co-operation in the provision of the agreed services by NIMMSTA.The Customer shall create in good time all the conditions necessary for the provision of services by NIMMSTA that have been agreed or are within its sphere of responsibility.
11.2 The Customer’s obligations to co-operate include in particular (but are not limited to) the following obligations:
11.2.1 The Customer shall ensure that all agreed prerequisites are in place on the agreed dates to enable NIMMSTA to carry out the work, insofar as this is necessary. If NIMMSTA’s work requires access to the Customer’s and/or users’ premises, the Customer shall ensure that such access is granted to NIMMSTA’s employees.
11.2.2 The Customer shall report any faults or defects in NIMMSTA’s deliveries or services, stating the information known to it and useful for recognising them, so that, if possible, operating errors on the part of the Customer can also be ruled out.
11.2.3 The customer is obliged to promptly carry out updates of delivered software issued by NIMMSTA.
11.3 Unless otherwise agreed, the Customer shall provide the co-operation services to be provided by it free of charge.
11.4 In the event that the customer culpably fails to provide its cooperation services and NIMMSTA incurs additional costs as a result, these shall be borne by the customer.

§ 12 Confidentiality and data protection
12.1 NIMMSTA and the customer are obliged to treat all knowledge of confidential information of the other party obtained within the framework of the contractual relationship and its fulfilment as confidential for an unlimited period of time, in particular even after the end of the cooperation, and to use it only for the purposes of implementing the respective contract.
12. 2 The confidentiality obligation shall not apply to (confidential) information that (i) was already in the public domain at the time of disclosure or becomes publicly known thereafter, without non-compliance with the above provisions having been or being a contributory cause thereof, (ii) is expressly disclosed by one party on a non-confidential basis, (iii) was already in the lawful possession of the other party prior to disclosure, (iv) is subsequently disclosed to the receiving party by a third party without breach of a confidentiality obligation or is independently developed by the receiving party without use of the Confidential Information, (v) is required to be disclosed by law, or (vi) is presented as evidence to a court or public authority for the assertion of or defence against legal claims. The burden of proof for the existence of one of the above exceptions shall be borne by the party invoking it.
12.3 The parties undertake to comply with the relevant provisions of data protection law within the scope of the cooperation.

§ 13 Obligations under the ElektroG
13.1 The customer shall bear the costs of disposing of electrical appliances that are supplied to the customer by NIMMSTA as manufacturer or authorised representative within the meaning of the ElektroG and that are not to be returned to NIMMSTA.
13.2 If appliances within the meaning of Section 13.1 are passed on to third parties who are not private end users within the meaning of the ElektroG, the customer is obliged to pass on to them the obligation to bear the costs under Section 13.1.

§ 14 Limitation period
14.1 The limitation period for warranty claims of the customer against NIMMSTA for material defects under a contract of sale or contract for work and labour is twelve months from the start of the statutory limitation period; the same limitation period also applies to other claims of the customer against NIMMSTA, regardless of their nature.
14.2 If the customer has booked a warranty extension for a product, the extended period agreed with the warranty extension shall apply instead of the limitation period for the customer’s warranty claims under the purchase contract or contract for work and labour set out in § 14.1.
14.3 The provision in 14.1 does not apply to claims by the customer against NIMMSTA based on defects of title within the meaning of Section 435 BGB or Section 633 (3) BGB, intent or gross negligence on the part of NIMMSTA, fraudulent concealment of a defect, personal injury or a guarantee granted by NIMMSTA (Section 444 BGB), or to claims under the Product Liability Act. In these cases, the statutory limitation periods apply.

§ 15 Liability
15.1 NIMMSTA is liable in accordance with the statutory provisions for damages to the customer caused by intentional or grossly negligent behaviour on the part of NIMMSTA or its vicarious agents. The same applies to personal injury and damage under the Product Liability Act.
15.2 Otherwise, NIMMSTA’s liability for claims for damages – irrespective of the legal grounds – is limited in accordance with the following provisions, unless a guarantee assumed by NIMMSTA provides otherwise:
NIMMSTA is only liable for damages to the customer caused by slight or simple negligence insofar as they are based on the breach of essential contractual obligations (cardinal obligations). Cardinal obligations are those contractual obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the customer regularly relies and may rely. Insofar as NIMMSTA is liable for simple negligence, its liability is limited to the typically foreseeable damage. Any further liability on the part of NIMMSTA for slight or ordinary negligence is excluded.
15.3 The provisions of the above paragraphs also apply mutatis mutandis to any limitation of NIMMSTA’s obligation to pay compensation for wasted expenditure (Section 284 BGB).
15.4 The no-fault liability of NIMMSTA as lessor for defects existing at the time of conclusion of the contract pursuant to Section 536a (1), 1st Alt. BGB is excluded.
15.5 The above limitations of liability also apply in favour of NIMMSTA’s vicarious agents.

§ 16 Choice of law and place of jurisdiction
16.1 The contractual relationship(s) between the customer and NIMMSTA and their implementation are subject to German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods and the provisions of private international law.
16.2 If the customer is a registered trader, a legal entity under public law or a special fund under public law or has no general place of jurisdiction in Germany, Munich (Germany) is agreed as the place of jurisdiction for all disputes arising from or in connection with the contract concluded between the contracting parties.

§ 17 Miscellaneous

17.1 Agreements between NIMMSTA and the customer and all amendments and additions to the contract must be made in writing, whereby, in deviation from Section 126 of the German Civil Code (BGB), an exchange of documents by fax or electronically as a scan is sufficient. The aforementioned formal requirements shall also apply to the amendment or cancellation of provisions of this clause.
17.2 All declarations by the contracting parties (e.g. orders, cancellations, notices of defects, etc.) must be made in text form in order to be valid.
17.3 In the event that future orders from a customer who is an entrepreneur are placed with NIMMSTA by way of electronic commerce, the special notification, information and other obligations arising from Section 312i (1) sentence 1 nos. 1 to 3 and sentence 2 BGB are waived.
17.4 The customer may only assign rights and claims arising from a contractual relationship with NIMMSTA to third parties with the prior written consent of NIMMSTA.

§ 18 Amendment of the GTC for continuing obligations

18.1 NIMMSTA is entitled to amend these GTC in accordance with the following provisions in the case of continuing obligations into which these GTC have been incorporated.The right to amend the GTC exists only to the extent that this does not result in a change to NIMMSTA’s main performance obligations that is detrimental to the Customer.
18.2 The Customer shall be notified of any amendments to these GTC in text form.
18.3 The Customer may object to any such amendment to the GTC. To do so, it must declare its objection to NIMMSTA in text form and within six (6) weeks of receipt of NIMMSTA’s notification of the amendment to the GTC (hereinafter ‘Amendments’). The deadline is only met if the objection is received by NIMMSTA within the deadline. If the Customer does not object in due form and time, the amendments shall be deemed approved and the amended GTC shall become part of the contract; NIMMSTA shall expressly point this out and the form and deadline for the objection in the notification of the amendment.
18.4 If the Customer objects to the amendments in due form and time, the contract shall continue unchanged. In this case, however, NIMMSTA has the right to terminate the contract with a notice period of six weeks from receipt of the objection to the Customer if it is economically or technically impossible or unreasonable for NIMMSTA to adhere to the unchanged contract.

II Special provisions for purchase contracts for hardware
§ 1 Scope of application
The provisions of this section apply if and insofar as NIMMSTA sells hardware to the customer.
§ 2 Delivery, transfer of risk and inspection
2.1 Delivery is ex warehouse in Munich, which is also the place of fulfilment.At the customer’s request and expense, the goods will be dispatched to another destination (sale to destination).Unless otherwise agreed, NIMMSTA is entitled to determine the type of dispatch (in particular transport company, dispatch route, packaging) itself.
2.2 The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest when the goods are handed over. In the case of sale by despatch, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay shall pass to the customer upon delivery of the goods to the forwarding agent, carrier or other person or organisation designated to carry out the shipment.
2.3 If the delivered goods show recognisable damage or shortages, the customer must note this in writing on the carrier’s receipt upon delivery. The note must characterise the damage or shortage sufficiently clearly (notice of damage in accordance with § 438 of the German Commercial Code – HGB).

§ 3 Retention of title
3.1 The delivered goods remain the property of NIMMSTA until full payment has been made.
3.2 The customer is obliged to treat the purchased goods with care as long as ownership has not yet been transferred to him. As long as ownership has not yet been transferred, the customer must inform NIMMSTA immediately in writing if the delivered item is seized or exposed to other interventions by third parties. If the third party is not in a position to reimburse NIMMSTA for the judicial and extrajudicial costs of an action pursuant to § 771 ZPO, NIMMSTA shall be liable for the loss incurred by us.
3.3 The customer is authorised to resell the reserved goods in the normal course of business. The customer hereby assigns to NIMMSTA the claims of the customer arising from the resale of the reserved goods in the amount of the final invoice amount agreed with NIMMSTA for the goods in question (including VAT).The customer remains authorised to collect the claim even after the assignment. NIMMSTA’s authorisation to collect the claim itself remains unaffected by this. However, NIMMSTA will not collect the claim as long as the customer fulfils its payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed or payments have been suspended in respect of the customer.
3.4 NIMMSTA is obliged to release the securities to which it is entitled at the customer’s request if their value exceeds the claims to be secured by more than 20%.

§ 4 Provisions for software installed on hardware
4.1 Upon transfer of ownership of the hardware, NIMMSTA shall grant the Customer the perpetual non-exclusive right to use the software installed on the hardware supplied to operate the hardware in question.
4.2 Updates to software installed on the hardware supplied will be released by NIMMSTA at its own discretion and made available to the Customer for installation. There is no obligation to provide updates unless an update is required to rectify defects during the warranty period.

§ 5 Warranty

5.1 The customer’s claims for defects presuppose that he has fulfilled his statutory duties of inspection and notification of defects (§§ 377, 381 HGB) if he is a merchant. If a defect is discovered during the inspection or later, NIMMSTA must be notified immediately in text form.The notification is deemed to be immediate if it is made within two weeks, whereby the timely dispatch of the notification is sufficient to meet the deadline.
5.2 If the delivered item is defective, NIMMSTA has the right to choose whether to provide subsequent fulfilment by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). NIMMSTA’s right to refuse the initially chosen type of subsequent fulfilment under the statutory conditions remains unaffected. Defects in software installed on hardware are generally rectified by the customer providing a corresponding update for installation.
5.3 NIMMSTA is entitled to make the subsequent fulfilment owed dependent on the customer paying the purchase price due. However, the customer is entitled to retain a reasonable portion of the purchase price in proportion to the defect.
5.4 The customer must give NIMMSTA the time and opportunity required for the subsequent fulfilment owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer must return the defective item to NIMMSTA in accordance with the statutory provisions.
5.5 The expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, shall be borne by NIMMSTA if a defect actually exists. However, if a request by the customer to rectify a defect proves to be unjustified, NIMMSTA may demand reimbursement of the resulting costs from the customer.

III. Special provisions for rental agreements for hardware
§ 1 Scope of application
The provisions of this section apply if and insofar as NIMMSTA leases hardware to the customer.

§ 2 Provision of the rental object
The rented item shall be delivered by despatch to the delivery address specified by the customer.

§ 3 Provisions for software installed on hardware
3.1 For the term of the rental agreement, NIMMSTA grants the customer the non-transferable non-exclusive rights to use the software installed on the rented hardware to operate the hardware in question.
3.2 Updates to software installed on the hardware supplied are issued by NIMMSTA at its own discretion and made available to the Customer for installation. There is no obligation to provide updates unless an update is necessary to maintain the usability of the leased property.

§ 4 Obligations of the customer
4.1 The customer shall handle the rental items with the care of a prudent businessman, which he would normally apply in his own affairs. The customer must provide adequate instruction and training or otherwise ensure that its vicarious agents use and operate the rented items in accordance with their normal use.
4.2 For the purpose of any necessary repair and maintenance work, the Customer shall provide NIMMSTA with the leased property at NIMMSTA’s expense by insured despatch to NIMMSTA’s business address. If, in exceptional cases, such work has to be carried out at the place of installation or use of the rental object, the customer must grant NIMMSTA access to the rental object in accordance with its safety and access guidelines.
4.3 At the end of the rental period, the customer is obliged to return the rental items to NIMMSTA’s business address by insured despatch.

§ 5 Maintenance of fitness for use
5.1 NIMMSTA must maintain the rental items in a condition suitable for the contractually agreed use for the duration of the rental period.
5.2 The Customer may notify NIMMSTA in text form of any disruptions or impairments to the usability (‘defects’) of the rental items.
5.3 Defects are regularly remedied by rectification, i.e. support in avoiding defects or repairing the leased property.NIMMSTA may choose whether it first attempts to rectify the defect by telephone or by remote maintenance. Defects in software installed on leased hardware are usually rectified by the customer providing a corresponding update for installation. If the rectification fails or would be uneconomical for NIMMSTA, NIMMSTA may require the customer to agree to the provision of a new leased item of the same type and quality.
5.4 The customer’s right to terminate the contract for failure to grant use in accordance with Section 543 (2) sentence 1 no. 1 BGB is excluded unless the establishment of contractual use is deemed to have failed. Failure to establish use in accordance with the contract can be assumed at the earliest if NIMMSTA does not rectify a significant defect within a period of four weeks from receipt of the notice of defects or provides a corresponding workaround and the customer has duly provided the cooperation services incumbent on it in this context. The customer is not entitled to terminate the contract due to insignificant defects. The customer shall only be entitled to terminate the entire rental agreement if a significant number of the rental items are not available for the contractually agreed use.

IV. Special provisions for rental agreements for software products
§ 1 Scope of application
The provisions of this section apply if and insofar as NIMMSTA leases software products to the customer.
§ 2 Provision of the software products
NIMMSTA makes the contractual software products available to the customer on its website for download and installation on the customer’s end devices.
§ 3 Granting of rights of use
3.1 NIMMSTA grants the Customer the right to install the contractual software products on the respective end device and to use them in connection with the contractual operation of the respective Smart Watches.
3.2 The right of use in accordance with Section 3.1 is initially granted to the customer for the term of the rental agreement. After expiry of the term of the rental agreement, NIMMSTA continues to permit the unlimited use of the software products to the extent described in Section 3.1 in the version current at the end of the rental agreement; however, the customer no longer has any claims to warranty or the provision of updates to the software products.

§ 4 Maintenance of fitness for use
4.1 NIMMSTA must maintain the software products in a condition suitable for the contractually agreed use for the duration of the rental period.
4.2 The Customer may notify NIMMSTA in text form of any malfunctions or impairments of the usability (‘defects’) of the software products.
4.3 Defects are generally remedied by the provision of a corresponding update for installation by the Customer.
4.4 Section III § 5.4 applies accordingly.

§ 5 Updates
5.1 During the rental period, NIMMSTA shall provide the Customer with updates to the software products, which may contain improvements or functional enhancements to the software products, without separate remuneration.
5.2 The updates are issued by NIMMSTA at its own discretion and made available to the Customer via the NIMMSTA website.

V. Special conditions for the provision of apps
§ 1 Scope of application
The provisions of this section apply if and insofar as NIMMSTA provides the customer with apps for use and this is not done as part of a software rental in accordance with Section IV.

§ 2 Subject matter of the contract and services of NIMMSTA
2.1 NIMMSTA shall make the contractual app available to the Customer on its website for download and installation on the Customer’s relevant end devices.
2.2 NIMMSTA grants the Customer the right to install the app on the respective end device and to use it in connection with the contractual operation of the respective smart watches.
2.3 The right of use under section 2.2 is initially granted to the Customer free of charge and for an unlimited period. However, NIMMSTA reserves the right to make future versions of the app available for a limited period of time and for a fee, whereby the rights of use already granted to the customer for older versions of the app remain unaffected by this.
2.4 If NIMMSTA is obliged to rectify defects in an app, this is usually done by providing a corresponding update of the app on the NIMMSTA website for download and installation by the customer.

2.5 Updates to apps are issued by NIMMSTA at its own discretion and made available to the customer via the NIMMSTA website. There is no obligation to provide updates unless an update is required to rectify defects during the warranty period or as part of a contract for the provision of an app against payment.
§ 3 Obligation to delete apps provided for a limited period of time
Upon termination of the contractual relationship for the temporary provision of apps, the customer is obliged to delete all installations and copies of the app that it has made.

VI Special provisions for SaaS services
§ 1 Scope of application
The provisions of this section apply if and insofar as NIMMSTA provides SaaS services to the customer.
§ 2 Subject matter of the contract and services provided by NIMMSTA
2.1 NIMMSTA shall make the contractual software product available to the Customer for use in the agreed functional scope during the term of the contract in the latest version at the point of transfer. The software product, the computing power required for its use and the required storage space shall be provided by NIMMSTA.
2.2 NIMMSTA grants the Customer the simple rights of use required for the agreed use of the software during the term of the contract.
2.3 NIMMSTA shall provide the Customer with the necessary access data to enable the Customer to access the contractual software.
2.4 The Customer’s access to the Internet is not part of NIMMSTA’s services. The customer bears sole responsibility for the functionality of its Internet access, including the transmission paths from and to the transfer point.

§ 3 Special obligations of the customer and rights of use
3.1 The number of authorised users is specified in the contractual agreement.
3.2 The customer is obliged to treat his access data for accessing the software confidentially, to keep it secret and only to pass it on to those persons to whom he wishes to authorise the intended use of the contractual software within the agreed scope of use. The persons to whom the customer passes on the access data must be bound to secrecy accordingly. In relation to NIMMSTA, the customer is responsible for all actions taken by persons to whom it has granted access to the software using this access.
3.3 In the event that the customer becomes aware that third parties have gained knowledge of his access data, he is obliged to change his access data immediately. The customer is also obliged to inform NIMMSTA immediately if there are any indications that his access data to the software has been or is being misused by third parties.
3.4 The customer is obliged to create the necessary system requirements for the use of the server and the software that are within its sphere of responsibility. This includes in particular the provision of a stable Internet connection with sufficient bandwidth and suitable end devices on which the Java version required for the operation of the Smart Watch is installed.

§ 4 Data backup
NIMMSTA carries out a data backup for the data stored in the contractual NIMMSTA software according to the following concept:
Daily backup of the databases and customer-specific files Outsourcing of the data backup to a dedicated backup server.
The backups are stored for at least seven days for each individual day, after their respective expiry a weekly backup remains for at least one month, after the expiry of one month only a monthly backup remains, monthly backups are stored for at least one quarter. Quarterly backups are kept for at least one year.
The creation of data backups as downloadable files is a chargeable service provided by NIMMSTA, which is scheduled at the customer’s request within the scope of available resources and charged on a time and material basis.
The contractual scope of services does not include compliance with archiving obligations, for which the customer is responsible, unless the customer concludes a separate contract with NIMMSTA.
The restoration of data backups at the customer’s request is a chargeable service provided by NIMMSTA that is scheduled within the scope of available resources and charged on a time and material basis, unless NIMMSTA is responsible for the loss of data on which the restoration is based.

§ 5 Availability of the software
5.1 NIMMSTA guarantees 99.0% availability of the contractual software on a monthly average, unless the parties have agreed otherwise. However, this does not constitute a corresponding guarantee.
5.2 The software shall be deemed available if the software is ready for use by the customer at the transfer point, as well as during the agreed maintenance windows (§ 5.3).
5.3 In order to maintain the quality and security of the servers and the software, maintenance windows (shutdown times) totalling a maximum of 8 hours per month (in total) are agreed during which the software is scheduled to be unavailable. During these maintenance windows, the software is deemed to be available despite the shutdown. The maintenance windows are only scheduled between 6:00 pm and 7:00 am. The planned maintenance windows shall be announced by e-mail to the e-mail address provided by the customer at least five days before the planned shutdown.
5.4 The measurement period for availability is the calendar month. Availability is calculated according to the following formula:
Availability [%] = MinIst / (MinMess – MinWart) * 100
This refers to the measurement period:
MinIst = the number of minutes of actual availability (see Section 5.2) of the server and the software
MinMess = the number of minutes of the measurement period
MinWart = the number of minutes of shutdown times during the agreed maintenance windows
5.5 The availability of the software is automatically monitored and documented by NIMMSTA. The results of this monitoring shall serve as the basis for proving the degree of availability, whereby the Customer reserves the right to prove that the measurement results are inaccurate.
5.6 The Customer is obliged to notify NIMMSTA immediately and as precisely as possible of any functional failures, malfunctions or impairments to the availability of the software. If the Customer fails to do so, Section 536c BGB shall apply accordingly.
5.7 Under no circumstances shall NIMMSTA be liable for disruptions to availability caused by the customer, the customer’s telecommunications service provider, access provider or mobile phone provider, or by any other third party attributable to the customer.
§ 6 Warranty
6.1 NIMMSTA is obliged to rectify defects in the software products provided during the term of the contract. NIMMSTA shall also be deemed to have remedied a defect if it shows the customer a reasonable way of avoiding the effects of the defect.
6.2 The customer’s right to terminate the contract for failure to grant use in accordance with Section 543 (2) sentence 1 no. 1 BGB is excluded, unless the establishment of use in accordance with the contract is deemed to have failed. Failure to establish use in accordance with the contract can be assumed at the earliest if NIMMSTA does not rectify a significant defect within a period of four weeks from receipt of the notice of defects or provides a corresponding workaround and the customer has duly provided the cooperation services incumbent on it in this context. The customer is not entitled to terminate the contract due to insignificant defects.

VII Special provisions for (other) work and services to entrepreneurs

§ 1 Scope of application
The provisions of this section apply if and insofar as NIMMSTA provides services or works to a customer who is an entrepreneur that are not part of the services listed above under II. to VI.
§ 2 Subject matter of the contract and remuneration
2.1 The subject matter of the contract and the agreed remuneration are set out in NIMMSTA’s respective offer.
2.2 If no fixed prices have been agreed, invoicing shall be based on actual expenditure. Unless different daily or hourly rates have been agreed, invoicing is based on NIMMSTA’s current price list.
2.3 Unless otherwise agreed, payment for services is due immediately after they have been provided and for work services after acceptance.

§ 3 Acceptance of work services
3.1 If the services to be rendered by NIMMSTA are work services subject to acceptance, the results of the work performed by NIMMSTA shall be inspected by the customer immediately after completion or delivery and – provided there are no material defects – accepted.
3.2 If the customer does not declare acceptance immediately, NIMMSTA may set a deadline of two (2) weeks for the customer to make this declaration. The declaration of acceptance shall be deemed to have been made if the customer does not explain to NIMMSTA within this period the reasons for refusing acceptance and specifying the defects or symptoms of defects, or does not declare acceptance.
3.3 If the customer has put NIMMSTA’s goods and services into productive use without naming a defect, acceptance shall be deemed to have taken place upon commencement of use.

§ 4 Rights of use
4.1 If and to the extent that NIMMSTA delivers software or other deliveries protected by copyright or otherwise to the Customer or makes them available to the Customer in any other way, the Customer shall receive the same rights and authorisations of use to these deliveries that it is also entitled to for the software of NIMMSTA to which the respective deliveries relate.
4.2 If protected deliveries from NIMMSTA do not relate to software from NIMMSTA, the Customer shall receive the simple, non-exclusive rights of use for the contractually stipulated purpose of use, unless otherwise agreed.
4.3 The above granting of rights is in any case subject to the condition precedent of full payment of the agreed remuneration for the respective deliveries.