- The App consists of the object code of the App, as provided by Licensor for the relevant end user device (where Applicable, through a platform such as iTunes or Google Play) for download and installation.
Article 2 Updates
- Licensor provides updates for the App and via the heating system for firmware of the communication components, i.e., the interface between Licensee’s heating system and the internet (hereinafter referred to as “Updates”) to be installed in order to guarantee the security of the App or to take into account the change in functions of the App and to adapt the App to progress in technical development. Licensor may, at its discretion, alter the scope of the function of the App without separate notification, without, however, significantly limiting the functionality of the App. Licensor shall notify Licensee of any such changes in advance. Licensor recommends that updates always be installed in a timely manner. Where Licensee fails to install updates even after a reminder in the App and to Licensee’s email address, Licensor may terminate this agreement and delete the associated user account.
- Licensee shall not be entitled to have updates made available in order to extend the functions.
- Licensee acknowledges and agrees that Licensor only maintains the current status of the App. Upon expiry of the warranty under the agreement on the purchase of the heating system or the retrofitting of the system with an internet interface, Licensor reserves the right to cancel the App and terminate this agreement.
Article 3 Granting of rights of use, Availability
- The rights of use shall be granted under the following conditions subsequent:
- Licensee acknowledges the authorship of Licensor and in particular will not alter or remove any authorship notifications;
- Licensee will not alter and/or decompile the App (Licensee’s authorizations contained in Sections 69d and 69e German Copyright Act shall remain unaffected).
Some of the functions of the App require a connection to a system ("backend") via the internet belonging to Licensor. Viessmann guarantees 95% availability of the App on average annually. Prior notice of maintenance work given not less than seven (7) days in advance (maximum of five hours/week on average annually) shall not be taken into account. Viessmann shall make every effort to perform maintenance work during times in which the App is only infrequently used.
Article 4 Supported user devices and supported hardware and software
- Licensor provides Licensee with the App for use in accordance with the provisions on a supported user device. Supported user devices and their minimum requirements are listed in the current version of the product literature available here.
- The system and software requirements set by Licensor in the current version of the product literature, which are available here, for use of the App must be complied with. Software programs and services provided by third-party manufacturers, which are intended to work with the App may only be used after Approval by Licensor. Compliance with the system requirements is the responsibility of Licensee, only. Questions regarding interoperability should be forwarded to Licensor.
Article 5 Registration
- Licensee shall be obligated to register for proper use of the App and to create a user account. Correct and complete information about Licensee’s identity, email address, and where Applicable, client number and other user data such as installation location are to be entered and updated in case of any changes. In addition, Licensee is to notify Licensor where Licensee is no longer entitled to use the system (e.g., in case of sale of the home in which the system operates to a new owner). Any breach of this obligation shall entitle Licensor to exclude Licensee from using the App.
- Licensor may block a user account if there are signs that the user account has been used in an unauthorized manner and/or unauthorized access to the App or Licensor’s underlying systems is gained or attempted from the user account (“hacking”). In such cases, Licensor shall notify Licensee via the email address provided in the user account without undue delay and re-enable access by means of setting up a new user account, unless there are facts that suggest that Licensee has attempted to access Licensor’s systems without authorization.
- Licensor shall be entitled to extraordinary termination of this agreement without notice and delete the user account if Licensor’s backend is unable to connect to Licensee’s system permanently (for more than 6 months) without this being the fault of Licensor and Licensee has been notified thereof by email to the email address provided and in the App without any remedy being provided within eight weeks of such notification.
Article 6 Warranty
- Licensee shall be responsible for the configuration of the App in accordance with the current material accompanying Viessmann heating systems. Where Licensee is a businessperson, Section 377 German Commercial Code shall also apply with regard to the warranty. Accordingly, Licensee is obliged to immediately inspect the App upon receipt and, to the extent feasible in the orderly course of business, indicate any recognizable defect). In case Licensee fails to do so, the App shall be deemed approved and without such defect, provided, however, that no defect is concerned, which was not recognizable during the inspection.
- The functions made available via the App are considered to be free of material defects, if they fulfill the functions that are included in the currently valid product literature, which are available here, or that were agreed separately. Licensor does not guarantee that the functions of the App will correspond to Licensee’s requirements.
- It shall be a pre-requisite for functional defects regarding the App that the defect be reproducible. Licensee must describe such defects sufficiently. If the App provided by Licensor is defective, Licensor shall rectify the defect within an Appropriate of time by repairing the App where the expense of the repair is reasonable. If the repair fails, Licensee shall be entitled to a reduction in the price or to withdrawal.
- Licensee must support Licensor in identifying the defect to the extent reasonable, for example by means of providing printouts, screenshots or error descriptions.
- Occurrences of force majeure (including strikes, lockouts and similar occurrences, insofar as they cannot be foreseen, are severe, and are not the fault of Licensor), which make it significantly more difficult or impossible for Licensor to provide the service owed, shall entitle Licensor to postpone the performance of the obligations by the duration of the obstacle and an Appropriate start-up period.
Article 7 Liability
- Licensor shall have unlimited liability where damage is caused intentionally or as a result of gross negligence by Licensor or its legal representative. Licensor shall also have unlimited liability in case of injury to life, body or health. In addition, Licensor shall be liable for guaranteed functions of the App and legally in accordance with mandatory laws, in particular product liability laws and product safety laws.
- In addition, Licensor shall be liable in case of slightly negligent breach of such obligations if the fulfillment of these obligations is what actually makes the proper performance of the agreement possible and if the contractual partner may regularly rely on such obligation being met (“material obligations”). This liability, however, shall only correspond to the level of damage that can typically be foreseen at the time of the conclusion of the agreement. In other cases of slight negligence, there shall be no liability.
- Licensor shall not be liable for damage arising from incorrect configuration for which Licensor is not responsible or from use of devices that do not meet the system requirements.
- Licensor shall not be liable for additional costs incurred during the use of the App (in particular, for the cost of data transfer via mobile communications including data roaming). Such exclusion of liability shall not apply, if Licensor is responsible for gross negligence or intent.
Article 8 Extraordinary right of termination
Article 9 Final provisions
- This agreement shall be governed by and construed in accordance with the laws of Germany. However, the mandatory applicable protection regulations of the country of residence of a licensee who is a consumer and resident in the European Union, remain unaffected. Legal venue shall be Frankfurt am Main, Germany, where Licensee is a businessperson, legal entity under public law or special fund under public law. Where Licensee is a consumer, Licensee shall be entitled to bring proceedings in the jurisdiction in which the Licensee is domiciled.