Lindera GmbH General Terms and Conditions and Terms of Contract for Contracts with Companies
1. Scope of application
1.1 These General Terms and Conditions (hereafter referred to as “Terms”) apply to the contracts Lindera GmbH has with natural or legal persons, or legal partnerships, who act in a professional or self-employed manner on conclusion of the legal transaction with Lindera GmbH (hereafter referred to as “customer”). These Terms also apply to all future offers and services of Lindera GmbH vis-à-vis the customer, without the need for a separate agreement.
1.2 If Lindera GmbH has not expressly consented to additional and conflicting terms and conditions of the customer, these provisions shall apply exclusively.
1.3 The legal relationship between Lindera GmbH and the customer is regulated by the governing written contract. The governing written contract contains all agreements between the customer and Lindera GmbH as concerns the subject matter of the contract in question. Any verbal commitments of Lindera GmbH and agreements between the customer and Lindera GmbH before conclusion of the written contract in question are not legally binding and will be replaced by the written contract in question.
1.4 Individual agreements between the customer and Lindera GmbH always have precedence over these provisions, even if this principle is not separately mentioned in each regulation of these provisions.
2. Offers and conclusion of contract
2.1 Lindera GmbH offers are binding for a period of two weeks from the signing of the offer by Lindera GmbH. If the customer does not accept the offer within this period, the customer submits an offer to Lindera GmbH on signing. Lindera GmbH will decide on its acceptance at its own discretion. Orders and/or other offers of the customer may be accepted by Lindera GmbH within two
weeks of receipt.
2.2 The preceding provision of Clause 2.1 shall not apply if offers are marked as “subject to change” or “non-binding”. In these cases, offers by Lindera GmbH are merely a representation of possible services and thus not legally binding.
3. General terms and conditions on performance of service
3.1 Deadlines in Lindera GmbH contracts and offers are non-binding and merely a rough estimate of the performance time, unless corresponding liability was promised by Lindera GmbH in an individual agreement with the customer.
3.2 Unless expressly agreed otherwise in writing, Lindera GmbH does not provide any warranties for its services. This above all applies to information provided during product presentations or contained in marketing materials.
3.3 Lindera GmbH does not warrant that the services correspond to the individual expectations and requirements of the customer, unless they have been expressly agreed with the customer. Information and illustrations given by Lindera GmbH on the subject of the contractual performance
are approximate values and descriptions of service and do not guarantee any specific conditions thereof.
3.4 Lindera GmbH will perform the service in question in such a way that it is suitable for the intended purpose and meets the expectations of an intended customer. The performance is carried out with the diligence that Lindera GmbH also seeks to apply to its own affairs.
3.5 Work results of Lindera GmbH, including but not limited to the mobility analysis, do not constitute medical advice or treatment of any nature. Lindera GmbH provides services supporting medical and care staff in their daily tasks. Lindera GmbH uses standardized and scientific knowledge and probability evaluations to use algorithms to analyze human mobility and provide standardized risk prevention recommendations. The customer and the personnel employed by them remain responsible for the treatment and medical advice provided to the third party cared for by the customer.
3.6 Lindera GmbH bases its services on information recorded and transmitted by the customer, for example in the “LINDERA Mobility Test”. Lindera GmbH does not validate said information. The performance of Lindera GmbH is reliant on the correct and complete input of information by the customer.
3.7 Lindera GmbH is entitled to perform partial services, if said partial service is usable for the customer under consideration of the object of the contract in question, if provision of the remaining services is ensured, and if the customer does not incur any significant disadvantage because of the partial service.
3.8 If the object of the service is the production of work results, for example the mobility analysis, Lindera GmbH guarantees that work results are produced within 72 hours days from the moment at which the customer has provided all necessary information for the preparation of the work results of Lindera GmbH.
4. Terms and conditions of the “LINDERA Mobility Test”
4.1 If the use of the “LINDERA Mobility Test” constitutes part of the contract between the customer and Lindera GmbH, the regulations of this Clause 4.1 apply supplementary to the other regulations of these provisions.
4.2 The “LINDERA Mobility Test” is a mobile application provided free of charge, which allows customers access to some services of Lindera GmbH, particularly the mobility analysis. Services are accessed through the “LINDERA Mobility Test” by transmitting data over the Internet. The “LINDERA Mobility Test” itself runs on the mobile device of the customer.
It is the customer’s responsibility to ensure that the hardware and access services required to operate the “LINDERA Mobility Test” are available and functional, and that there is Internet access.
To use the “LINDERA Mobility Test”, the customer requires a device with the “Apple iOs” or “Google Android” operating systems. The device must have at least one camera with video recording feature, to allow for the recording of information necessary for the Mobility Test.
4.4 The “LINDERA Mobility Test” contains copyrighted content, which LINDERA has the exclusive rights to
. Lindera GmbH grants the customer the basic right to use the “LINDERA Mobility Test and the LINDERA content for the purposes stipulated in the contract within the framework of these provisions and the individual contract with Lindera GmbH, unrestricted in terms of space but limited to the period of the contract between the customer and Lindera GmbH in terms of time.
4.5 The “LINDERA Mobility Test” is only intended to be used for the purposes stipulated in this contract. In particular, the customer undertakes to use the “LINDERA Mobility Test” in accordance with the contract and neither to pass it on to unauthorized third parties, nor to make it accessible to unauthorized third parties in any other way.
4.6 The customer may not sublicense the rights to the “LINDERA Mobility Test” and/or make accessible to third parties unpublished content belonging to LINDERA, nor distribute the “LINDERA Mobility Test” and/or make it publicly available.
4.7 The customer is not entitled to reverse engineer, decompile, disassemble, modify, reproduce or use the “LINDERA Mobility Test” and its functionalities in order to create a separate application or in any other way attempt to gain access to the source code of the “LINDERA Mobility Test” or otherwise edit the “LINDERA Mobility Test”, insofar as the customer is not permitted to do so by law.
4.8 In particular, the customer undertakes, unless expressly permitted in this contract at least in text form, not to modify, copy, use, or create works derived from the “LINDERA Mobility Test”, its functionalities or parts thereof, not to attempt to circumvent, deactivate, or thwart technical usage restrictions; not to transfer, sell, rent, lease, distribute, sub-license, lend or otherwise hand over to third parties the “LINDERA mobility test” in whole or in part; not to change or remove references to property rights in the “LINDERA Mobility test”; not to use the “LINDERA Mobility Test” for the provision of its own time-sharing services, software-as-a-service offers, its
own commercial services or as part of an application service provider or service offerings.
4.9 The preceding usage rights and usage restrictions also apply to all upgrades and/or improvements that Lindera GmbH makes available to its customers.
4.10 If the customer uses the “LINDERA Mobility Test” to create videos and/or images, which are to be processed for the purpose of the mobility analysis, the customer grants LINDERA a free, non-exclusive, temporally and spatially unlimited, transferable right to edit, reproduce, and transmit this content for the purposes of this contract, and to make it publicly available or to have the editing, reproduction, and transmission carried out by third parties.
4.11 Lindera GmbH guarantees an annual average availability of the upload function of the “LINDERA Mobility Test” of ninety-five percent. Availability downtime and restrictions, resulting from a lack of (public)
network availability, disruptions that fall into the sphere of responsibility of the customer, or force majeure, are not taken into consideration to the detriment of Lindera GmbH.
5. Commissioning third parties
5.1 Subject to the data protection provisions, Lindera GmbH is entitled to commission third parties with the provision of services to customers, or have parts of its services performed by third parties. The customer is not entitled to refuse cooperation with third parties unless said cooperation between the customer and third party is excluded by way of exception, because of important interests or legal grounds.
5.2 Lindera GmbH shall be liable for negligence on the part of its legal representatives and persons who it uses for the fulfillment of its obligations under the contract with the customer, to the same extent as its liability for own fault in accordance with these provisions or the individual agreement with the customer. The exclusive contractual partner of the customer is Lindera GmbH, and the customer may only assert claims against Lindera GmbH in connection with the performance of Lindera GmbH. Claims of the customer vis-à-vis the third party asserted under legal provisions shall remain unaffected by the preceding provision.
6. Failures in performance
6.1 The customer undertakes, for any services to be accepted by them, to examine the provided service for defects within two weeks from performance. If the performance of Lindera GmbH is not of the required condition, the customer furthermore undertakes to notify Lindera GmbH within two weeks of discovery of the defect in question and grant Lindera GmbH a reasonable period of time to remedy the defect, without prejudice to the customer’s obligations under § 377 of the German Commercial Code.
6.2 In the event of defective performance of Lindera GmbH, the customer is entitled, within the scope of the legal provisions, to demand supplementary performance in the form of elimination of the defect or renewed and faultless performance. Lindera GmbH reserves the right to choose the type of supplementary performance.
6.3 If said supplementary performance fails, the customer shall be entitled to reduce the agreed remuneration for the defective performance accordingly, or, if the legal requirements are met, to withdraw from or terminate the contract with Lindera GmbH. Furthermore, the customer is entitled to demand compensation for damages incurred, provided that the legal requirements for claims for damages are met.
6.4 Claims by the customer due to defects become time-barred in one
year from the passing of risk of service onto the customer. This period does not apply to claims for damages of the customer from injury to life, body, or health, or from intentional or grossly negligent breaches of duty, as well as from defects that Lindera GmbH has fraudulently concealed or secured by means of a guarantee statement. Claims set out in Sentence 2 of this Clause 6.4 become time-barred according to the statutory provisions.
7. Liability of Lindera GmbH
7.1 Lindera GmbH is liable for intent, fraudulent behavior, and gross negligence of its organs, representatives, employees, and other vicarious agents, as well as for the negligent breach of obligations that jeopardize fulfillment of the purpose of the contract and in whose fulfillment the customer can regularly trust (in each case without restriction in accordance with the statutory provisions). This applies mutatis mutandis to damages as the result of warranties given by Lindera GmbH as well as liability under German Product Liability Law
7.2 In the event of simple negligence of the cardinal obligations specified in Clause 7.1, Lindera GmbH shall only be liable for the foreseeable damages typical for the contract.
7.3 Fault-based liability for damages of Lindera GmbH is excluded in instances not specified in the preceding Clauses 7.1 and 7.2.
7.4 If third parties make claims against Lindera GmbH – because of the contract or in connection with the performance of Lindera GmbH vis-à-vis the customer – the customer shall indemnify Lindera GmbH by internal arrangement between them and Lindera GmbH in line with the statutory regulations for any contributory negligence and the related share of responsibility. This shall apply accordingly if Lindera GmbH is fined by a supervisory authority as a result of fault of the customer.
7.5 Liability for free performances by Lindera GmbH, including but not limited to the provision of the “LINDERA Mobility Test”, is restricted to the instances specified in Clause 7.1 of these Terms.
7.6 The regulations on liability of this Clause 7 shall apply accordingly to the personal liability of organizations, employees, representatives, and vicarious agents of Lindera GmbH.
8. Prices and payment
8.1 Prices of Lindera GmbH apply to the respective scope of performance specified in the contract with the customer. The customer shall separately pay remuneration for services that fall beyond the contractually agreed scope of performance. All prices are plus the statutory value added tax.
8.2 Customers shall make payments in line with the contractually agreed payment conditions. Unless agreed otherwise, amounts billed by Lindera GmbH are to be paid by the customer within fourteen days from the day of billing. If Lindera GmbH and the customer have agreed on a partial payment, the customer shall make a payment in advance by the first
day of each month. If the customer is in default of payment, they shall be liable to pay Lindera GmbH interest to the amount of the statutory interest rate, incurred from maturity of the customer payment in question. Lindera GmbH reserves the right to assert additional damages for default.
8.3 In the event of changed market conditions, significant changes in procurement costs, changes in sales tax, and/or price increases on the part of subcontractors, Lindera GmbH reserves the right to make adjustments to the remuneration agreed with the customer. However, such adjustments are only allowed twelve months after concluding the contract in question at the earliest, and only once a year. Lindera GmbH shall inform the customer in writing of such an adjustment at the latest six weeks before it takes effect. If the customer does not accept the adjustment to the remuneration, both Lindera GmbH as well as the customer are entitled to terminate the respective contract observing a notice period of one month to the end of a calendar month, if said adjustment to the remuneration exceeds three percent
of the previously agreed remuneration. In the event of termination, the remuneration before adjustment shall be effective up to the entry into force of the termination.
9. Obligations (to cooperate) of the customer
9.1 The customer is responsible for performing their duties to cooperate, which are necessary to provide the services, in a timely manner, completely, and free of charge.
9.2 Said obligations include, but are not limited to, the following:
- Creating the legal, technical, and organizational conditions for the performance of Lindera GmbH, in particular the “LINDERA Mobility Test”. Above all, this includes the provision and maintenance of technical prerequisites referred to in Clause 4.2 of these Terms.
- Obtaining the necessary data protection consent of data subjects and providing sufficient information about the data processing, including details on the anonymization of personal data, as further described in Clause 10.8 of these Terms.
- Service disruptions, including faults in the “LINDERA Mobility Test”, are to be reported immediately to Lindera GmbH in a form that enables Lindera GmbH to remedy the fault, e.g., with a detailed description of the symptoms specifying the system and hardware environment.
- Specifying an e-mail address for secure communication and with which Lindera GmbH can make results, in particular results of the mobility test, available to the customer.
9.3 If the customer fails to fulfill their duties to cooperate, Lindera GmbH is relieved from performing the services subject to said duties. Lindera GmbH is entitled to make claims for any additional costs incurred or damages to the customer.
9.4 The customer undertakes to treat confidentially their usage and access rights for the services of Lindera GmbH and protect them against access by unauthorized third parties. This in particular, but not exclusively, includes passwords for the “LINDERA Mobility Test” or access to the mobility analyses. In addition, the customer must sufficiently secure their hardware and access services to prevent access by unauthorized third parties and/or infection with viruses, trojans, or similar malicious programs into the performance of Lindera GmbH. If the customer determines that unauthorized use of their rights to use and access or any other unauthorized access has taken place, they must immediately inform Lindera GmbH. The customer’s obligation to mitigate damage, as well as legal obligations, for example to report violations of the protection of personal data, remains unaffected.
9.5 Lindera GmbH is not responsible for storing and securing the work results created for the customer and will delete all work results within the legally prescribed storage and deletion deadlines. The customer must ensure a back-up of any work results received by Lindera GmbH.
9.6 The customer shall be liable for negligence on the part of their legal representatives and persons whom they use for the fulfillment of their obligations under the contract with Lindera GmbH, to the same extent as its liability for own fault.
9.7 Lindera GmbH is entitled to assert claims against the customer within the framework of the statutory provisions, including but not limited to, claims for compensation for direct and indirect damages caused by the customer or their legal representative and/or persons whom they use to fulfill their obligations under the contract with Lindera GmbH.
10. Privacy and confidentiality
10.1 Lindera GmbH acts on behalf of the customer and only processes personal data within the framework of the service provision to which it is contractually obligated and/or instructions given by the customer, in accordance with the data protection regulations. Lindera GmbH and the customer conclude a separate contract on the processing of personal data, at the latest before the start of the service.
10.2 The customer must inform Lindera GmbH if they believe that Lindera GmbH must observe special requirements in the processing of personal data, for example due to professional regulations.
10.3 The details of the processing of personal data by Lindera GmbH on behalf of the customer must be specified in the contract prior to initial processing of personal data, in a separate contract for processing on behalf. The regulations of such a contract on processing on behalf take precedence over these provisions.
10.4 The customer undertakes to properly instruct their employees on data protection and make them acquainted with the requirements related to the use of the “LINDERA Mobility Test” and other Lindera GmbH services.
10.5 Insofar as Lindera GmbH supports the customer in fulfilling their data protection obligations, for example by providing the customer with data protection information pursuant to Art. 13 GDPR on data processing within the framework of the Mobility Test, these services do not provide data protection advice, but rather serve to help the customer better evaluate the subject of data processing. The customer is and remains responsible for the implementation of all necessary measures that they have to fulfill vis-à-vis data subjects as a controller.
10.6 Lindera GmbH is entitled to draw attention to the contractual relationship with the customer, in an appropriate form, in brochures, publications, or on its website. The customer can object to said authorization at any time with effect for the future.
10.7 Without prejudice to the data protection regulations, Lindera GmbH and the customer undertake to treat confidentially and prevent third-party access to any confidential information made accessible to them within the context of the contract and performance of service, as well as knowledge the parties gain of confidential matters of the respective other party as part of the collaboration. “Confidential” information is either expressly identified as confidential, or the confidentiality results from the nature of the information or the circumstances of its disclosure. All internal business information of the parties,
as well as information on the functioning of the “LINDERA Mobility Test”, especially constitutes confidential information. The use of the confidential information specified in this Clause 10.7 is limited solely towards fulfilling the obligations and the contract and to the use of the data in accordance with Clause 10.8 of these Terms. The confidentiality obligation does not apply to information that:
- were or are demonstrably lawfully received by the other party from a third party,
- were demonstrably already publicly known at the time of conclusion of the contract or subsequently became publicly known without a breach of the obligations contained in the contract or due to other fault of the receiving party,
- are demonstrably the result of independent efforts of the other party, and/or
- which must be disclosed as a result of mandatory statutory regulations, regulations of authorities, or as a result of the judgment of a court.
Any obligations to maintain confidentiality under this Clause 10.7 shall continue beyond the termination of any contract, for the duration in which the affected party has a legitimate interest in the secrecy of the confidential information.
10.8 Notwithstanding the preceding provisions of this Clause 10.8, Lindera GmbH is entitled to use data and information provided by the customer in the “LINDERA Mobility Test” and transmitted to Lindera GmbH, and/or data and information transmitted otherwise to Lindera GmbH, for their own purposes, if and to the extent that such data does not include any references to their person within the meaning of the EU General Data Protection Regulation, for which purpose Lindera GmbH informs the customer about the anonymization and further processing of said data. The customer must ensure that the information they provide about the anonymization and further processing of the data is transparent and unambiguous to the data subjects concerned. The use of the anonymized data within the meaning of this Clause 10.8 includes, but is not limited to, usage for the following purposes:
- Analysis and evaluation of the anonymized data to assess general fall risks and improve the Lindera GmbH service, above all the Mobility Test.
- Providing anonymized data to third parties, for example health insurances and research projects.
- Evaluation of anonymized data for purposes of scientific research and to create studies on fall prevention.
11. Final provisions
11.1 Changes. Changes and additions to the contractual relationship between the customer and Lindera GmbH, in particular changes and additions to these provisions, must be made in writing, in principle. The written form requirement also applies to changes to the written form requirement of this Clause 11.1. Individual agreements between the customer and Lindera GmbH, which were made after conclusion of the respective contract, remain unaffected by this Clause 11.1.
11.2 Ineffective regulations. If individual regulations or the contract between the customer and Lindera GmbH are or become ineffective, the effectiveness of these regulations or the respective contract is otherwise not affected. The ineffective regulation must then be replaced by a provision that comes as close as possible to the economic purpose of the ineffective provision and the intention of the customer and Lindera GmbH.
11.3 Applicable law. The contract between the customer and Lindera GmbH, including these provisions, are subject to the laws of the Federal Republic of Germany. Lindera GmbH excludes the application of the United Nations Convention on Contracts for the International Sale of Goods
to their contracts.
11.4 Place of jurisdiction. The place of jurisdiction for all disputes arising from, or in connection with, the contractual relationship between the customer and Lindera GmbH, including these provisions, is the registered office of Lindera GmbH, Berlin. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.
11.5 Offsetting and retention. Subject to the provisions of § 354a of the German Commercial Code
, assignment of claims of the customer against Lindera GmbH is excluded. Offsetting by the customer is only possible for claims legally determined and undisputed by Lindera GmbH. The same applies to the assertion of rights of retention by the customer.
11.6 Term and termination. The usual duration of contracts with Lindera GmbH is two years. If neither Lindera GmbH nor the customer terminates the contract three months before its expiration or the expiration of a contract duration agreed otherwise, the contract will automatically be extended by one
more year. Lindera GmbH and the customer are entitled at any time to terminate the contract extraordinarily, for good cause, if the legal requirements are met. Good cause for Lindera GmbH especially constitutes instances in which the customer
- violates any provision of the agreement, including this policy, in particular where it fails to comply with its privacy obligations or exceeds the scope of use of the “LINDERA Mobility Test”, and/or
- is on default of payment of the agreed remuneration by more than three