EBRO Connect App Terms of Use

EBRO Connect App Terms of Use
(hereinafter “Terms of Use”)

1. Subject and scope of validity

1.1.      These Terms of Use shall govern the use of the mobile EBRO Connect App (hereinafter “App”) which is provided to customers by EBRO ARMATUREN Gebr. Bröer GmbH (imprint https://www.ebro-armaturen.com/ebro-app/impressum.html), Karlstr. 8, 58135 Hagen, Germany (hereinafter “EBRO”) and can be downloaded through the Apple and Google app stores. Various services in connection with the EBRO SBU Advanced switch box (hereinafter “Services”) shall be offered free of charge via the App, as set out in more detail in the Specifications (available under https://www.ebro-armaturen.com/ebro-app/leistungsbeschreibung.html). The use of the App and the use of the Services shall be governed exclusively by these Terms of Use, as amended at any given time.

1.2.      The only parties entitled to use this App shall be contractual partners of EBRO and of the companies affiliated with the EBRO Group, their executive bodies, legal representatives, employees and other servants, who have purchased an EBRO SBU Advanced switch box (hereinafter “Users”).

1.3.      On installing and using the EBRO SBU Advanced switch box and on utilising the Services, the Users shall thereby accept the validity of these Terms of Use as amended.

1.4.      Any differing, supplementary or conflicting terms and conditions of the User shall not be acknowledged unless EBRO expressly agrees to their validity with respect to the use of the App.

1.5.      The Services may only be used as offered at the applicable time. It may be necessary for the User to download and install a new version of the App from time to time in order to be able to use the App.

1.6.      These Terms of Use shall not apply to other deliveries and services based on a purchase order placed with EBRO and the companies affiliated with EBRO. The General Terms of Sale and Delivery, as provided and amended in connection with any given purchase order, shall apply exclusively in these cases.

2. Scope and responsibility

2.1.      EBRO shall provide services for EBRO products free of charge for Users on loan by way of the App.

2.2.      EBRO shall apply the customary care when selecting, maintaining and editing the contents of the Services. EBRO cannot furnish any guarantee, however, that the content of the Services supplied free of charge is correct, complete and up to date.

2.3.      The provisions in section 7 of these Terms of Use shall remain unaffected by the provisions in section 2.2 above.

2.4.      Installation, configuration, and support services shall not be included in the scope of services.

2.5.      EBRO shall not be under any obligation to provide updates, upgrades or other revised versions for the App.

3. Granting of usage rights

3.1.      EBRO shall provide the Services free of charge. Costs may be incurred in connection with the use of the App, especially data transfer charges billed by the respective network operator. These costs must be borne by the Users themselves.

3.2.      EBRO shall retain the exclusive rights of ownership, usage and exploitation to the App in relation to the User.

3.3.      The App may not be available in other countries. EBRO would also advise Users that they shall be required to bear any additional costs which may be incurred by using the Services from abroad and that they should ask their local providers about any such charges. Downloading or accessing the App in a foreign roaming network may be restricted or adversely affected.

3.4.      Unless expressly dictated otherwise, the User shall be granted a non-exclusive, non-sublicensable right, limited in time to the duration of the contractual relationship, to install and use the App in accordance with these Terms of Use to the extent allowed by EBRO. The User shall be permitted to copy the App onto any number of terminal devices, insofar as this is necessary for the contractual use. Any modification of the App and any decompilation of the program code into other forms of code and other types of reverse engineering of the different production stages of the software shall be prohibited. Sections 69d and 69e of the German Copyright Act (Urheberrechtsgesetz - UrhG) shall remain unaffected.

3.5.      The App and the Services shall be available for use only as allowed by EBRO within its operational and technical constraints. EBRO shall be entitled to suspend the operation of the App and the Services without prior notice for compelling technical reasons or due to necessary maintenance work. In all other cases, due advance notice shall be given in an appropriate manner.

4. Duties of the User and restrictions on use

4.1.      The User may use the App only in accordance with these Terms of Use and the Specifications. Users shall impose the obligation to comply with the Terms of Use on their employees, where applicable, insisting in particular that they use the App within the scope of the rights of use granted therein and that they comply with the other obligations of the User and have due regard for the Data Privacy Policy of the App. Where applicable, therefore, Users undertake to provide their employees with these Terms of Use and the Specifications and the security requirements contained therein.

4.2.      The Users shall have sole responsibility for the security of the working environment and the security of the IT infrastructure, especially of their mobile devices.

4.3.      The User undertakes to refrain from all actions which could jeopardise or disrupt the functioning of the App.

4.4.      The User may not misuse the App or allow it to be misused in any way. The User may most notably not use the App for purposes other than those intended by EBRO and detailed in the Specifications. The User may not use the App in connection with machines/components other than those expressly mentioned in the Specifications, for example. The User shall have sole responsibility for usage in connection with machines/components in any case. The User shall most notably also be required to observe the safety and operating instructions for the respective machines/components when using the App.

4.5.      Any use of the App for unlawful purposes shall be prohibited. The applicable laws, especially copyright law, competition law, data protection law and criminal law, must be observed in any case of usage. Violations by the User may lead to the immediate termination of this contractual relationship and/or discontinuation of the App. The same shall apply in case of contraventions of these Terms of Use. When taking such steps, however, EBRO shall take the legitimate interests of the User into consideration. EBRO shall hereby expressly reserve further rights.

4.6.      The User shall test the App thoroughly before proceeding with live use in order to ensure that it is free from defects.

4.7.      In case of adaptations and further developments of the App, the Users shall be responsible for making any necessary changes to their IT infrastructure, especially with regard to the mobile end devices used for the App, in order to be able to continue using the App.

4.8.      The User undertakes to prevent access to the App by unauthorised third parties, putting suitable measures in place for this purpose, such as storing the password which is required to connect the EBRO SBU Advanced switch box to an end device in a secure location where it cannot be accessed by unauthorised third parties. The User most notably undertakes to store all copies of the App in a secure location where they cannot be accessed by unauthorised third parties.

4.9.      The User shall be required in principle to ensure adequate backup of all data, files or other digital information provided in connection with the App, unless this obligation has been expressly assumed by EBRO. The function offered in the App for sending data to an individual email address can be used for this purpose, provided that this function is available. When using this function, the Users shall ensure that they are authorised to enter the relevant email address. The Data Privacy Policy of the App must also be observed in this regard.

5. Warranty and fault reports

5.1.      EBRO is not aware of any problems with the App. EBRO does not furnish any warranty for defects. EBRO, its executive bodies, legal representatives, employees and other servants shall be liable in the event of defects for direct damage caused to the User only if defects in the App were fraudulently concealed from the User.

5.2.      In order to enable EBRO to improve and develop the App at its discretion, the User shall promptly inform EBRO in text form about any defects or malfunctions of the App and shall document, in a clearly understandable manner, the circumstances and the manner in which the defect or malfunction occurs. The User shall actively support EBRO in identifying the root cause of the defect or malfunction by providing EBRO with such documents, reports and other information as are required by EBRO to analyse and remedy the defect or malfunction.

6. Data protection

Reference may be made to the Data Privacy Policy of the App (https://www.ebro-armaturen.com/ebro-app/datenschutzerklaerung.html) in case of questions in connection with the collection, processing and use of personal data.

7. Liability

7.1.      EBRO shall be liable, irrespective of legal grounds, in cases of deliberate intent and gross negligence only and as dictated under the law on product liability. In the event of gross negligence, EBRO shall only be liable where a fundamental duty has been neglected in such a way as to jeopardise the accomplishment of the purpose of the contract and on the fulfilment of which the User may therefore routinely rely (cardinal obligation), and its liability shall be limited to compensation for typical and foreseeable damages; this shall not apply to liability for damages resulting from injury to life, limb or health. EBRO shall not accept liability in any other respects.

7.2.      In the event of data loss, EBRO shall be liable within the limits defined in the preceding paragraphs only for such damages incurred through neglect of duty on its part as would have occurred even if the User had proper systems in place to back up the data, i.e. conforming to the latest standards of technology and commensurate with the risks.

7.3.      Claims for damages asserted by the User and for reimbursement of expenses incurred in vain due to a grossly negligent breach of duty shall be subject to a limitation period of one (1) year. This shall not apply in case of a defect in the right of a third party in rem on the basis of which the third party can demand surrender of the contractual objects concerned. The limitation period shall commence in accordance with the statutory provisions applicable in any given case and – where a maximum statutory period applies – shall commence no later than five (5) years after the claim arises. This shall not affect the statutory limitation period for claims against EBRO based on wilful breach of duty in the case of fraudulent concealment of a defect and in case of damages arising from injury to life, limb or health and under the law on product liability.

7.4.      The limitations of liability set out in this section 7 shall also apply in favour of executive bodies, legal representatives, employees and other servants of EBRO.

8. Termination 

8.1.      This contractual relationship between EBRO and the User on the use of the App may be terminated by either party in text form (e.g. by email or message within the App) without giving reasons subject to a notice period of one (1) month. 

8.2.      This shall not affect the statutory right to cancel without notice for good cause.

8.3.      After terminating this contractual relationship – irrespective of the reason – the User shall stop using the App immediately. The User shall surrender all deliveries and physical copies of the App or delete stored copies, unless legally obliged to keep them for a longer period of time or having a legitimate interest in their continued possession (e.g. substantiation of claims or defence against claims). The User shall issue EBRO with confirmation in text form that the relevant action has been taken.

9. Changes to the App and Terms of Use 

9.1.      EBRO reserves the right (i) to change the functions, technical design and graphics of the App at any time, e.g. to add new functions to the App, (ii) to develop the App further, (iii) to provide updates, upgrades and other revised versions of the App, (iv) to start charging for the App or certain functions, and (v) to discontinue the App or part thereof. EBRO reserves the right to provide updates, upgrades and other revised versions of the App. The User shall have no legal claim to these, however. EBRO shall take account of the legitimate interests of the Users in each case in this regard. EBRO only intends to support and develop the current release of the App in any given case. The User shall therefore only use this current version of the App.

9.2.      Any changes or revisions of these Terms of Use shall be communicated to the User in text form (e.g. message within the App) and shall become part of the contract if the User does not expressly object to the new version in text form within one (1) month of receipt of the notice of change. The User shall be advised of the implications of remaining silent on release of the new version. Users who do not agree to the new version may no longer use the App.

9.3.      These Terms of Use shall also apply to all future revisions of the App (updates, upgrades, etc.) unless the contractual parties expressly agree otherwise. EBRO may make the provision of revisions of the App conditional upon the acceptance of other or additional terms of use.

10. Final provisions

10.1.   Should individual provisions of these Terms of Use be invalid, the remaining provisions shall not be affected thereby and shall remain valid. The same shall apply to any loopholes in the contract.

10.2.   These Terms of Use shall be governed solely by German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).

10.3.   If the User is a trader, a legal entity under public law or a special fund under public law, the registered office of EBRO shall be the place of exclusive jurisdiction for all disputes concerning these Terms of Use and the resulting legal relationships/contractual relationships between the User and EBRO. This shall also apply if the User has no place of general jurisdiction in Germany. EBRO shall also be entitled, however, to take legal action at the registered office of the User or at any other admissible place of jurisdiction.

10.4.   The German version of these Terms of Use shall prevail over any translations which are produced.

 

Last revised:    4 April 2019

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