General Terms and Conditions

General Terms and Conditions

The contractual relationship between Sicada GmbH, Messerschmittstraße 2, 86825 Bad Wörishofen, Germany (hereinafter “Sicada”) and the customer is governed by the following general terms and conditions unless otherwise agreed between the parties in the individual case. If the customer enters into additional contracts with Sicada in the future, these general terms and conditions also apply to these future services even if this is not expressly agreed.

The applicability of deviating or other terms and conditions of the customer is excluded. This applies even if Sicada accepts an order in which the customer references its general terms and conditions and/or if general terms and conditions of the customer are attached to the order and Sicada does not object thereto.

Sicada only enters into agreements with natural or legal persons or partnerships with legal capacity which enter into this Agreement in the course of their commercial or professional business. Agreements with consumers are excluded.

  1. Services of Sicada
    • DYNOSTICS Hardware and DYNOSTICS Platform. The subject-matter of the contractual relationship is DYNOSTICS Hardware sold by Sicada and DYNOSTICS Platform operated by Sicada. DYNOSTICS Hardware can only be used in conjunction with DYNOSTICS Platform, i.e. it is not possible to use DYNOSTICS Hardware as intended without an ongoing contractual relationship regarding the use of DYNOSTICS Platform.
    • Hardware Purchase. Sicada will send the purchased DYNOSTICS Hardware to the customer and transfer title thereto to the customer. The delivery of the hardware is insured and undertaken by the parcel service commissioned by Sicada (Incoterms 2010: DAP) to the delivery address stated by the customer. Sicada retains title to the hardware until full payment of the purchase price agreed for the hardware.
    • Use of DYNOSTICS Platform. During the ongoing contractual relationship between the customer and Sicada regarding the use of DYNOSTICS Platform, the customer and the users activated by the customer are granted the non-exclusive right to use DYNOSTICS Platform so that they are able to use DYNOSTICS Hardware as intended during this period. In particular, DYNOSTICS Platform enables the recording of measured values for mobile performance analysis by means of DYNOSTICS Hardware and the storage and evaluation of these measured values.
    • Software as a Service. DYNOSTICS Platform is provided by Sicada as Software as a Service (SaaS) for use via the internet. The hard- and software used to operate this platform is operated by Sicada itself or by external service providers and is not handed over to the customer. The internet connection required to access DYNOSTICS Platform must be provided by the customer itself and/or its users and is not part of the scope of services owed by Sicada.
    • DYNOSTICS App. A technical requirement for the use of DYNOSTICS Platform is DYNOSTICS App which is provided by Sicada free of charge for select terminals via the Apple App Store and the Google Play Store and which the customer and its users have to install on suitable terminals in order to be able to use the services of Sicada. The provision of these terminals themselves is not part of the scope of services owed by Sicada.
    • Transfer of Rights. The rights of the customer under this Agreement may only be transferred and/or sublicensed to third parties upon prior written consent of Sicada.
    • Changes of Technology. If Sicada functionally expands the technology used to provide the services for reasons of security or in order to adjust to technical and economic market changes during the term of the Agreement, Sicada may replace the system used by the customer with the new version upon consent of the customer, even if the customer will be subject to additional software or hardware requirements in order to maintain the full functionality; the customer undertakes to only use the new version as from this point in time (e.g. by means of immediate updates to the newly provided version of the DYNOSTICS App). The consent of the customer is deemed as granted if (i) Sicada informs the customer in writing or via email about the launch of the new version and the changes contained therein, providing reasonable advance notice (generally two weeks) and (ii) the customer does not object to the change in writing or via email until the effective date of the change. Sicada shall point out this legal consequence separately in the notice regarding the change.
    • Purpose of the device. Analysis of respiratory gases to determine the fitness level of athletes. Therefore you must not determine a diagnosis or derive a measure of therapy with the result. Rather is the approach to give data to healthy people in which pulse areas they can work out most eff ectively.
  2. Cooperation Duties of the Customer
    • Customer Login Data. Sicada will provide the customer with login data for access to DYNOSTICS Platform. The customer shall keep this login data strictly confidential and not disclose it to third parties. Any use by third parties utilizing the login data provided to the customer shall be attributed to the customer as own use. If the customer determines that its login data has been compromised it shall inform Sicada immediately and initiate a change of the login data.
    • User Licenses. Each person for which the customer undertakes to record measured values for mobile performance evaluations by means of DYNOSTICS Hardware requires a separate user license and must be set up and activated as separate user within DYNOSTICS Platform. User licenses are activated when the customer records measured values for the respective user for the first time. The transfer of a user license or a user account of DYNOSTICS Platform to another person, and/or the joint use of such a user license or such an account by multiple persons, are not permitted.
    • User Information and Service. The customer shall question the users about their health in accordance with the guidelines of DYNOSTICS Platform prior to the start of each measurement and inform them about the health aspects associated with the measurement. Prior to each measurement, the DYNOSTICS Hardware must be disinfected in accordance with the user instructions provided by Sicada. A measurement may only commence if the respective guidelines of DYNOSTICS Platform on the minimum health requirements on the user´s health are met. A responsible supervisor of the customer must be personally present throughout the entire duration of the measurement, observe the user during the measurement, immediately abort the measurement in case of problems and call medical help if required.
    • Careful Handling of DYNOSTICS Hardware. In order to exclude risks for the users through a potential incorrect use of DYNOSTICS Hardware, the customer shall handle DYNOSTICS Hardware carefully and observe the user instructions provided by Sicada.
  3. Sub-Contractor Relationships

Use of External Service Providers. Sicada may use external service providers as sub-contractors in providing its contractual services. Sicada remains fully responsible vis-à-vis the customer, including for services provided by an external service provider.

  1. User Data
    • Sicada as Data Controller. Vis-a-vis the parties, all rights in data which is collected and/or stored via DYNOSTICS Platform vest in Sicada. The rights of the respective affected users in their data remain unaffected.
    • Data Transmission to Customer. For as long as the respective user agrees, Sicada will make available to the customer via DYNOSTICS Platform a copy of the data which is collected by measurements of the customer for users activated by the customer. During the term of the Agreement, the customer may access this data and manage, analyse or export it via the standard functions of DYNOSTICS Platform.
    • Data Management by Users. The measured data and all other data of the users (e.g. contact data or information on physical fitness) generated in connection with the DYNOSTICS Platform and collected and/or stored by Sicada are managed by Sicada within the scope of DYNOSTICS Platform, and may be viewed, managed and/or analysed by the users within the scope of the standard functions of DYNOSTICS Platform. In particular, the users have the possibility of denying the customer access to their data managed in DYNOSTICS Platform at any time and/or granting access to this data to another customer.
    • Data Back-ups by the Customer. It is the responsibility of the customer to regularly (at a minimum whenever there were material changes of the data) make its own back-up copies of the data provided for download by Sicada via the export interface, using the export functionality provided by DYNOSTICS Platform, and thus to take reasonable precautions against loss of data in its own responsibility.
    • Data Export upon Termination / Expiration of Agreement. Until the Agreement is terminated/expires, the customer may access the user data provided by Sicada and export this data by means of the standard export functions provided by DYNOSTICS Platform. The customer itself is responsible for exporting the data in due time and backing it up for its own further use.
    • Obligation to Delete Data. If a user denies the customer access to user data managed within DYNOSTICS Platform and requests that the customer delete the user data exported from DYNOSTICS Platform, the customer must comply with this request immediately. This obligation to delete data survives termination / expiration of this Agreement indefinitely.
  2. Data Protection and Data Security
    • Responsible Body. Within their sphere of responsibility, respectively, Sicada and the customer each are the responsible body within the meaning of data protection law; that means that each party will decide about the purposes and means of processing, collection and use of the data within its sphere of responsibility. Insofar, they are each responsible for the lawfulness of the data processing, collection and use and for the safeguarding of the rights of the data subjects, respectively. To the extent necessary, the parties shall respectively inform the data subjects about the collection, processing and use of the data, or obtain their consent.
    • Commitment to Data Secrecy. Both parties are obligated to familiarize their employees who are entrusted with processing personal data with the relevant provisions of data protection law and committing them to data secrecy in writing. This non-disclosure obligation of the individuals entrusted with processing data also remains in effect after the employment with the respective party ends.
    • Information Obligation in Case of Unauthorized Disclosure. If a party notices that user data within its sphere of responsibility has become known to an unauthorized third party unlawfully, i.e. in breach of applicable data protection law or this Agreement, it shall inform the respective other party hereof immediately.
    • Duty of Support. If the customer can only fulfil its duties under data protection law vis-á-vis a data subject with the help of Sicada, Sicada shall reasonably support the customer. Sicada shall be separately compensated by the customer in accordance with the required efforts.
    • Indemnity Obligation. If third parties (including governmental bodies) assert claims and/or infringements vis-à-vis Sicada based on the contention that the customer has breached duties under data protection law within its sphere of responsibility, in particular if data subjects take action against Sicada, claiming that the processing of data by the customer violates their rights, the following shall apply: the customer shall immediately indemnify Sicada from and against these claims, reasonably support Sicada in defending against these claims and indemnify Sicada from the costs of legal defence. This indemnity obligation is subject to the following: Sicada (i) informs the customer about asserted claims in text form immediately; (ii) does not issue any acknowledgement of debt or equivalent declarations; and (iii) permits the customer – to the extent procedurally possible – to manage any settlement negotiations / litigation proceedings (whether in court or out of court) pertaining to the claims at the expense of the customer.
  3. Audit Rights of the Customer
    • The customer may monitor compliance with a) data protection laws and b) the contractual agreements between the parties within the required scope by obtaining information from Sicada. Own audits by the customer within the premises of Sicada are excluded.
    • The costs incurred by audits of the customer are borne by the customer. This also includes an expense allowance for the work time of personnel deployed by Sicada.
    • Legitimate interests of Sicada. To the extent audits may disclose business and trade secrets or endanger intellectual property of Sicada, Sicada may refuse to provide the respective information.
  4. Substantive Requirements on the Use of Sicada Services by Customer
    • Lawful Use. The customer shall ensure that its use of the services provided by Sicada does not infringe applicable law or rights of third parties. This means in particular that the customer ensures that the collection and processing of personal data by the customer does not breach applicable data protection law; this includes in particular that the customer obtains a valid consent declaration of the data subjects regarding such data collection and processing where required.
    • If the customer receives a complaint relating to its use of the systems provided by Sicada, the customer shall properly process these complaints and provide an initial substantive statement to the respective complainant as soon as possible.
  5. Individual Development Services
    • No Legal Review. To the extent Sicada provides individual programming services, conceptualization or development of contents or other individual development services, Sicada will only review the lawfulness of the relevant work results and take responsibility therefor if and to the extent this legal review is expressly included in the scope of the order.
    • Creative Freedom. Within the scope of the specifications made by the customer upon placing the order, Sicada has creative freedom for development services. Complaints regarding the specific design of development results insofar are excluded. If the customer demands changes during or after the development, it shall bear the resulting additional costs; in this case, Sicada retains the right to compensation for already commenced or bindingly ordered works.
    • Approval by the Customer. Upon the approval of user flows, designs and/or texts by the customer, the latter assumes the responsibility for their substantive accuracy.
    • Binding Delivery Dates. Delivery or collection dates are only binding if they are expressly confirmed as binding by Sicada. If there is a written agreement, the confirmation of a delivery or collection date also requires written form.
    • The customer shall accept in written or text form the services and work results rendered in accordance with the Agreement. Immaterial defects do not entitle the customer to refuse acceptance, but are subject to remedy of defects. The customer is deemed to have declared acceptance if (i) it does not refuse acceptance of the services and/or work results (providing written substantiation) at the latest 14 days after delivery of the services and/or work results, or (ii) it uses the services and/or work results productively.
    • Rights of Use. Sicada grants the customer the rights of use in the work results of the individual development works which are required for the respective contractual purpose. Unless agreed otherwise, a non-exclusive right of use is granted, respectively. Any transfer or sublicense of rights of use to third parties requires a written agreement with Sicada. The rights of use are only transferred to the customer upon complete payment of the fees.
    • Sicada is not obligated to surrender individually developed or customized computer files (e.g. source codes, lay-outs) to the customer. If the customer desires the surrender of computer files, this requires a separate agreement and separate compensation. If Sicada has provided computer files to the customer they may only be modified and/or used upon prior written consent of Sicada.
    • No Co-Authorship of Customer. Proposals of the customer regarding the design of the work results or other cooperation by the customer do not lead to a co-authorship and do not affect the amount of compensation.
  6. Claims for Defects
    • Defects of DYNOSTICS Hardware. In case of defects of DYNOSTICS Hardware and subject to the statutory prerequisites, the customer firstly has a right to secondary performance, where Sicada may choose between removal of the defect (repair) or replacement delivery of hardware which is free of defects. Additional claims of the customer based on the defect, if any, are subject to the statutory prerequisites. The rights of the customer conferred by the law governing sales contracts and due to defects of DYNOSTICS Hardware become time-barred one year after delivery to the extent the defects have not been maliciously concealed, and to the extent the claims of the customer are not based on a guarantee or injury to body, life or health.
    • Defects of DYNOSTICS Platform. If during the term of this Agreement, DYNOSTICS Platform has a defect which is not merely immaterial and which is not based on contents contributed by the customer, Sicada will commence to review and remove this defect immediately and remove it within a reasonable period. If removal of the defect fails, the customer may request reasonable reduction of the fees agreed for the use of DYNOSTICS Platform. In case of material defects, the customer may moreover set a reasonable grace period of at least four weeks in writing to remedy the situation. After the unsuccessful expiration of the grace period the customer may terminate the Agreement extraordinarily.
    • Notification Obligation of Customer. The customer shall notify any occurring defects and their effects and exact circumstances (e.g. error examples, data) to Sicada immediately in written form or via email. The customer will provide access to all required information to Sicada to that it can remove the defects.
    • Work-arounds. Sicada may circumvent a defect by so-called work-arounds if the cause for the defect itself can only be removed with unreasonable effort and if the usability of the owed service is not materially affected as a result.
    • No Strict Liability. The strict liability of Sicada for initially existent defects pursuant to Section 536a of the German Civil Code (BGB) is excluded.
    • No defect found. If a defect reported by the customer is not attributable to Sicada or if there is no defect, Sicada will charge the customer for the analysis, correction and maintenance works undertaken in connection with the error report at the respective current rates.
  7. Fees
    • Invoicing One-Off Charges (e.g. analytical devices, user licenses). We require advance payment. You will receive an invoice upon placing your order. The order will only be processed upon receipt of payment.
    • Monthly Invoicing of Ongoing Services. Unless agreed otherwise, Sicada will invoice its services in connection with DYNOSTICS Platform monthly. Sicada will invoice the customer at the end of the month in which the event giving rise to the customer´s payment obligation takes place, respectively.
    • All prices are net prices payable plus applicable VAT, sales tax and comparable indirect taxes in statutory amount, where appropriate.
    • Payment Period. The fees due to Sicada are due and payable within 10 workdays after invoicing by Sicada and shall be remitted to the account stated in the invoices of Sicada without deduction.
    • Suspension of Services in Case of Default. If the customer falls into arrears, Sicada may suspend the further provision of services until full payment of all due amounts upon prior written warning.
    • Set-off. The customer may not set off any of its claims against a claim of Sicada under this Agreement, or assert any retention right because of a claim of its own, unless the claims of the customer are (i) undisputed or (ii) finally judicially determined or (iii) based on a defect of the specific service for which Sicada is seeking payment by its claim.
  8. Confidentiality
    • Confidential Information. It is likely that both parties will disclose Confidential Information within the scope of their contractual relationship, or have already done so. “Confidential Information” includes all information expressly referred to as confidential and such information which must be treated as confidential based on its contents or the circumstances of its disclosure. Confidential information also includes the economic agreements between the parties and the personal data collected or processed hereunder. If there are any doubts about the confidential nature of information, the party which has received such information shall immediately contact the other party and request clarification; in any case prior to disclosing such information to third parties.
    • The following information is not considered as Confidential Information: information regarding which the receiving party can prove that (a) it was aware of this information prior to disclosure by the other party; (b) it has independently developed the information without recourse to or use of information of the other party; (c) it has lawfully received this information from third parties which were no subject to a non-disclosure obligation vis-à-vis the other party as far as the receiving party is aware; (d) this information became known to the receiving party or the public without breach of these terms or other existing rules and regulations for protection of business secrets of the other party; or (e) this information must be disclosed due to statutory obligations or an order of a governmental agency or court. In the latter case, the receiving party shall immediately inform the disclosing party prior to disclosing the information vis-à-vis third parties.
    • Confidentiality Obligation. Unless it is required for fulfillment of the Agreement, both parties are obligated to treat the Confidential Information of the respective other party as strictly confidential and to protect such information with at least the same diligence as its own Confidential Information.
    • Duration of Confidentiality Obligations. The mutual obligations under this section are effective for the entire term of this Agreement and for a period of 5 years after its termination/expiration.
  9. References

Sicada may mention the name and logo of the customer in its own advertising materials, such as website, brochures, newsletters etc., for reference purposes. The customer shall notify Sicada about any special requirements regarding such use, where appropriate. The name and/or logo of the customer will only be used in press releases and/or detailed case studies upon consent of the customer.

  1. Term and Termination
    • The contractual relationship regarding the use of DYNOSTICS Platform shall commence at the agreed time (without express agreement, upon the initial order of DYNOSTICS Hardware by the customer). It may be terminated for convenience by either party for the first time upon expiration of the agreed initial term. If an initial term is not separately agreed, the Agreement regarding the use of DYNOSTICS Platform has an initial term of 12 months.
    • Automatic Extension and Termination for Convenience. The written termination notice must be received by the other party at least three months prior to the end of the initial term (or the end of an extended term). If neither party terminates the contractual relationship in due time, it shall automatically extend by fixed extended terms of twelve additional months, respectively. The provisions of this paragraph apply mutatis mutandis for the termination of the contractual relationship with effect as per the end of such an extended term.
    • Extraordinary Termination. The right of the parties to terminate this Agreement extraordinarily for important cause with immediate effect remains unaffected.
    • Consequences of Termination. Upon expiration of the last day of the contractual term, the customer is no longer authorized to use DYNOSTICS Platform. Sicada may continue to use the data generated in connection with the measurements of the customer for purposes of DYNOSTICS Platform after the end of the contractual
    • Survival of Contractual Stipulations. The provisions of this Agreement which by their nature are intended to remain in effect after the end of the contractual term remain unaffected by the termination. This applies in particular to indemnity or damage compensation claims of the parties, if any.
  2. Limitation of Liability
    • Liability in Case of Simple Negligence. In case of damages caused by no more than simple negligence, the customer´s damage compensation claims are limited as follows in terms of the recoverable amount: Sicada is liable only up to such amount which Sicada foresaw as potential consequence of the breach of duty at the time of the breach of duty, or to such amount which Sicada typically had to expect. In these cases, any liability for indirect damages, consequential damages and loss of earnings is excluded.
    • Loss of Data. Sicada is only liable for loss of or damage to data or programs to the extent that such loss and/or damage could not have been avoided by reasonable precautions of the customer (in particular the regular creation of back-up copies).
    • Applicability regardless of Legal Reason. The aforementioned limitations of liability also apply to all damage compensation claims under or in connection with the Agreement regardless of their legal reason (including claims based on tort), with the following exceptions: (i) assumption of a guarantee; (ii) in case of willfully or grossly negligently caused damages; and/or (iii) in case of personal injury.
    • Applicability in Case of Direct Claims. The aforementioned limitations of liability apply mutatis mutandis in case of any damage compensation claims of the customer directly against employees or agents of Sicada.
  3. Applicable Law and Venue
    • Applicable Law. This Agreement is governed exclusively by German law (excluding references to other legal systems, if any). The applicability of UN Sales Law is excluded.
    • Venue. The venue for all disputes arising from or in connection with this Agreement is Munich, Germany. In addition, each party may initiate legal proceedings at the place of general jurisdiction of the respective other party.
  4. Written Form

To the extent this Agreement provides that declarations of a party require written form, this formal requirement can be met by transmission of a copy of the declaration (paper document with original signature) via fax or as attachment to an email (however, it is not sufficient to transmit the declaration as plain email text).