General Terms and Conditions
These General Terms and Conditions of Nemlia (“GTC”, together with any applicable Purchase Order issued
hereunder, the “Agreement”), are by and between Nemlia GmbH, Bergheimer Straße 147, 69115 Heidelberg,
Germany (“Nemlia”) and the entity or individual named in an applicable Purchase Order (“Subscriber”). The
Subscriber and Nemlia are referenced hereunder as “Party” and collectively as the “Parties”.
1. Scope and Applicability of GTC
1.1 These GTC apply to all Purchase Orders between the Parties with regards to software, data and related
services provided by Nemlia. For purposes of these GTC, (i) a “Consumer” is any natural person who enters into
the Agreement for a purpose that can be attributed neither to his or her commercial nor to his or her
independent professional activity (Article 13 of the German Civil Code (BGB)) and (ii) an “Entrepreneur” is a
natural or legal person or a partnership with legal personality who or which, when entering into a legal
transaction, acts in exercise of his, her or its trade, business or profession (Article 14 para. 1 of the German Civil
1.2 Unless expressly agreed otherwise, the then current version of the GTC at time of conclusion of the Purchase
Order shall apply. The most current version of the GTC will be posted on the Nemlia website.
1.3 These GTC apply exclusively. Deviating, conflicting or supplementary general terms and conditions of the
Subscriber shall only become part of the contract if and to the extent that Nemlia has expressly agreed to them
1.4 The contents of the Nemlia website and any products and services offered there do not constitute a binding
offer by Nemlia. The use of the contact form or the request for further information by the Subscriber is also nonbinding. Nemlia will prepare a quote or offer for requested products and services to be accepted and signed by
Subscriber. Unless otherwise stipulated in a Purchase Offer, all offers and quotes are non-binding.
1.5 If the Subscriber signs up for a recurring service or subscription, Nemlia reserves the right to amend these
GTC at any time during the term of the Agreement with effect for the future contractual relationship, if the
amended terms (i) are advantageous for the Subscriber, or (ii) do not have any material impact on the Subscriber
or the service, or (iii) are due to changes in applicable law or required to comply with a court judgment or an
official order. Nemlia will notify the Subscriber of such changes at least six (6) weeks before the effective date of
the changed terms. If the Subscriber does not object within such six (6) weeks of receipt of the notification, the
changes shall be deemed to be agreed between the Parties as of effective date of the notified changes. In all
other events than those listed in (i) to (iii) above the Subscriber has the right to terminate the Agreement for
cause with thirty (30) days written notice before effective date of the notified changes. Nemlia will inform
Subscriber of the Subscribers’ right to object to the amended terms and the legal effects of silence within the
The following definitions shall apply:
“Agreement” means these GTC, the PO or any other document between Nemlia and the Subscriber or User
referencing these GTC.
“Hardware” means the sensors or other devices compatible with the Software Services that collect movement,
environmental or other data.
“Intellectual Property Rights” means patents, rights to inventions, copyrights and related rights, trade secrets,
moral rights, trademarks, trade names and domain names, rights in goodwill, rights in designs, rights in computer
software, database rights and any other intellectual property rights, in each case whether registered or
unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and
all similar or equivalent rights or forms of protection which may exist now or in future.
“Mobile App” means the current version of the TALVA App including its documentation.
“Services” means Software Services or any other services performed by Nemlia as set forth in the PO.
“Software Services” means the Nemlia platform including its software features and functionalities that
Subscriber is authorized to use as part of the subscription. Such Software Services are made available to
Subscriber via the Mobile App and/or other webpages designated by Nemlia.
“Purchase Order” or “PO” means any ordering document, including any attachments thereto, as mutually agreed
between the Parties, specifying the Services to be provided under the Agreement;
“Service Level Agreement” or “SLA” shall mean the description of the Software Services and related service level
agreements as set forth in the Agreement.
“Software” means any software offered by Nemlia as a software as a service solution and any and all
documentation, instructions and services provided or offered by Nemlia which are related to such software;
“Subscriber” means the Entrepreneur or Consumer being a party to the Agreement with Nemlia.
“Subscriber Data” means all data or information collected through sensors or otherwise submitted by the
Subscriber or a User to the Software.
“Subscription Term” means the term of Software Service provision by Nemlia to Subscriber as defined in the
“Users” mean individuals who are authorized by Subscriber to use the Software Services as specified in a valid
and active Agreement between Nemlia and Subscriber and who have been supplied with user identifications and
passwords by Subscriber (or by Nemlia on behalf of the Subscriber and at the Subscriber’s request). Users may
include, but are not limited to, the Subscriber’s employees, consultants, contractors, agents, family members
and third parties authorized by and acting on behalf of Subscriber.
3. DELIVERABLES AND SERVICES
3.1 Mobile App. To access the Software Services Nemlia provides a Mobile App that can be downloaded through
the stores of certain providers (i.e. the Apple App Store, Google Play Store). The Subscriber and Users
acknowledge that there are certain terms and conditions that need to be accepted by registering to such
provider’s app stores which will apply in addition to these GTC between the Subscriber or User and the respective
provider. Nemlia has no influence on these terms and conditions and is also not responsible for availability or
access to the respective app stores. The Mobile App is solely for use with the Software Services and has no further
functionality or features that can be used without subscription to the Software Services, for which a registration
Users may use the Mobile App on any Supported Device and on no other devices. “Supported Device” means a
mobile device running a most current major release of either Android software or an Android software version(s)
or an Apple device running relevant iOS software.
Subscriber and User acknowledges and agrees that the Mobile App may collect User or device data for the
purposes of providing services or functions that are relevant to use the Mobile App and/or the Software Services.
3.2 Subscription to Software Services. Nemlia provides Software Services as part of a subscription. The Software
Services are further described in the respective PO. Unless otherwise specified in the applicable Purchase Order,
a) Software Services are purchased as User subscriptions and may be accessed by no more than the specified
number of named Users; and b) each individual which Subscriber wishes to register as a User will receive a User
ID and password to the Software Services. Each User account may only be used by the designated User and must
not be shared with any other individuals. The fees set forth in the relevant Purchase Order allow the Subscriber
to register User accounts up to the number of purchased users. The fees do not pertain to an actual registration
or actual usage of a user account. Additional User subscriptions may be added during the applicable Subscription
Term at the same pricing as that for the pre-existing subscriptions under the applicable Purchase Order, prorated for the remainder of the Subscription Term in effect at the time the additional User subscriptions are
added. The added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User
subscriptions are for designated Users only and cannot be shared or used by more than one User but may be
reassigned to new Users replacing former Users who no longer require use of the Software Services. In the event
Subscriber fails to comply with the contractual usage limits, Subscriber agrees to promptly execute a Purchase
Order for additional Users upon Nemlia’s request and to pay any invoice for excess usage in accordance with the
Nemlia provides a list of Hardware that is compatible with the Software Services. Such list can be requested
through Nemlia. The Hardware collects the data that are transferred and processed through the Software
Services. In case the Subscriber purchases the Hardware through a third party, Nemlia is not responsible for the
delivery or performance of the Hardware.
4. USAGE RIGHTS AND RESTRICTIONS
4.1. During the Subscription Term, Nemlia grants to Subscriber a limited, non-transferable, non-exclusive, nonperpetual right to access and use the Mobile App, the Software Services and related documentation for
Subscriber’s internal business or personal purposes. The Software shall be made available to Subscriber as
Software-as-a-Service that Subscriber may access and use for the Subscription Term. Nemlia will host and retain
physical control over the Software and make the Software available through the Internet for access, use and
operation by Subscriber via the Mobile App or an internet browser through a secure HTTP/S connection. To
access the Software Services, Users shall authenticate themselves with a unique, personal username and
password. The Mobile App and its functionality are limited to the use as part of the Software Services. Thus it
can only be accessed and used during the Subscription Term and must be uninstalled upon the expiration or
termination of the respective term. The Mobile App and the Software may contain third party software or Open
Source (as defined under https://opensource.org/osd) which are licensed according to its terms which may
deviate from the terms of the Agreement.
4.2 Any use of Software, Mobile App and/or Software Services that is not expressly granted is prohibited. In
particular, Subscriber shall not, or allow a third party to: (i) attempt to circumvent any technical devices of the
Software that are directed at, or have the effect of, enforcing the terms of the Agreement; or (ii) modify, create
derivative works, translate, decompile or create or attempt to create, by reverse engineering or otherwise, the
source code or the object code of the Software or of the Mobile App (except as expressly allowed by applicable
law); or (iii) remove, modify or obscure any Intellectual Property Right notice on any copy of the Mobile App, the
Software and Software Services, or related data, manuals, documentation or other materials; or (iv) market, sell,
lend, rent, lease, or otherwise distribute, the Mobile App or provide access to Software Services to third parties.
This shall not affect Subscriber’s mandatory statutory rights. Furthermore, the Subscriber or any User shall not:
a) make the Software Services available to anyone other than the Users, and/or b) use the Software Services to
store or transmit infringing, libelous, and/or otherwise unlawful material, and/or material in violation of thirdparty privacy rights, and/or c) use the Software Services to store or transmit viruses, worms, time bombs, Trojan
horses and other harmful or malicious code, files, scripts, agents or programs, and d) interfere with or disrupt
the integrity or performance of the Software Services or third-party data contained therein, and/or e) build a
competitive product or service; and/or (v) copy any features, functions or graphics of the Software, the Software
Services or the Mobile App.
5. SUPPORT SERVICES
5.1 General. Nemlia will make updates to the Software, the Software Services and the Mobile App available to
Subscriber as soon as they become commercially available and only during the Subscription Term. Nemlia will
inform the Subscriber about such updates. Subscriber understands that the maintenance times and procedures
for the Mobile Apps may depend upon contributions to be provided by third parties, such as app store providers.
Therefore, Subscriber agrees that updates to the Mobile App may not align with other updates.
5.2. Software Support. Nemlia will provide technical support for the Software Services during the Subscription
Term as follows: a) standard helpdesk support via web-content and e-mail support, in English with a maximum
response time as stipulated in the SLA; and b), provide second and third level support and maintain the Software
Services in accordance with the Service Level Agreement. This support is limited to technical questions and does
not include general end user training and consultancy services. Subscriber agrees that Nemlia may collect and
use technical information gathered as part of the support and maintenance services for the Software Services,
including User’s operating system and browser, as well as statistics. Nemlia may use this information solely for
the purpose of providing and/or improving the Software Services, the Software or the App. Nemlia shall not
disclose information in any form that identifies the Subscriber or any Users.
5.3. Features and Updates. Some features and functions of the Software, the Mobile App or Software Services
provided by Nemlia may include or depend on certain third-party components which may be subject to
changes by such third parties. Nemlia is entitled to modify or limit such features and functions, provided this
does not materially interfere with the substantial functions of Software Services. Nemlia reserves the right to
change the Software, the Software Services and the Mobile App in the context of updates and/or release
versions as well as the Software Services (including the system requirements) for good cause. Such good cause
exists especially if the change is required due to (i) a necessary adaptation required by applicable law,
regulation, court order, or order of authority; (ii) changes to applicable technical framework conditions (e.g.,
new encryption standards); or (iii) the protection of system security.
6. OBLIGATIONS OF THE PARTIES
6.1. Nemlia‘s Obligations. Nemlia will make commercially reasonable efforts to make the Software Service
available 24 hours a day, 7 days a week as set forth in the SLA, except for planned maintenance periods or any
unavailability caused by Force Majeure (Section 14.12). In the event Nemlia fails to meet the SLA (i) for four
consecutive calendar months, or (ii) for five or more calendar months during any twelve months period, or (iii)
at a system availability level of least 95% for one calendar month, Subscriber may terminate its subscriptions
for the affected Software Service by providing Nemlia with written notice within thirty (30) days after the
failure. Termination will become effective at the end of the calendar month in which Nemlia has received the
termination notice. Nemlia can temporarily limit or suspend Subscriber’s access (in particular usernames and
passwords) to the Software Service for the purpose of preventing damages that under the circumstances may
occur with a high likelihood. This is the case if the continued use of the Software Service by Subscriber or Users
may result in harm to the Software Service, other Nemlia customers, or the rights of third parties in such a way
that immediate action is required to avoid damages or further damages. Nemlia will notify Subscriber of the
limited access to or suspension of the Software Service without undue delay. Nemlia will limit the necessary
suspension or limited access to an extent as reasonably possible.
For avoidance of doubt, other than as specifically set forth in the Agreement and unless otherwise agreed to by
Nemlia in writing, no provision under the Agreement shall obligate Nemlia to deliver or otherwise make available
any copies of computer programs or code from the Software to Subscriber, whether in object code or source
6.2. Subscriber’s Obligations. The Subscriber shall be responsible for Users’ compliance with this Agreement
and the accuracy and legality of the Subscriber Data. The Subscriber shall a) prevent unauthorized access to the
Software Services and notify Nemlia promptly of any unauthorized access or use; and b) provide any Subscriber
Data, and/or Confidential Information to Nemlia via encrypted means or on encrypted media. Subscriber will
collect and maintain all personal data contained in the Subscriber Data in compliance with applicable data
protection laws. Further, Subscriber is solely responsible for determining the suitability of the Software Service
for Subscriber’s business processes and for complying with all applicable legal provisions and government
regulations regarding Subscriber Data and Subscriber’s or the User’s use of the Software Service and the
If a third party claims that Subscriber´s or the User’s use of the Software Service or Mobile App in accordance
with the terms and conditions of the Agreement infringes its Intellectual Property Rights, Subscriber must fully
inform Nemlia in writing without delay. If Subscriber ceases to use the Software Service or Mobile App to
mitigate loss or for other good reason, Subscriber must notify the third party that such cessation does not
imply any acceptance or agreement with the claimed infringement. In all other respects Section 12 shall apply.
7. FEES AND PAYMENT
7.1. Fees. Subscriber shall pay all fees specified in any Purchase Order. Except as otherwise specified in a PO, (i)
fees are based on the Software Services purchased and not actual usage; (ii) payment obligations are noncancellable; and (iii) Software Services purchased cannot be decreased in quantity during the Subscription Term.
7.2. Invoicing and Payment. Nemlia will invoice the Subscriber in accordance with the applicable PO. The
Subscriber is responsible for providing complete and accurate billing and contact information to Nemlia and
notifying Nemlia of any changes to such information timely in advance to a respective invoice date. If
Subscriber requires a specific order document for Subscriber’s invoicing process (“Order Document”) it is the
sole responsibility of Subscriber to provide the Order Document in a valid and reasonably acceptable form and
timely in advance in order to be taken into consideration within Nemlia’s invoicing process. The absence or
delay of an Order Document has no effect on Nemlia’s right to receive payment by the contractually agreed
due date. Any legal terms and conditions on an Order Document shall not take any effect as set forth in Section
7.3. Payment Term. Unless otherwise stated in the applicable PO, Subscriber shall pay fees without any
deductions Nemlia no later than twenty-one (21) days from the date of the invoice. Payment shall be executed
by Subscriber via wire transfer. If any fees are not received by Nemlia by the due date such fees shall accrue
late interest at the then current statutory rate.
7.4. Suspension of Services. If any undisputed amount owed by Subscriber in terms of this Section 7 is 10 days
overdue, Nemlia may suspend the Software Services to Subscriber until such amounts are paid in full including
interest payable. Nemlia will give Subscriber reasonable prior notice before suspending Services. It is
understood that any such suspension does not affect Subscriber’s payment obligation attributable to such
7.5. Price Adjustment. Unless otherwise agreed upon in a Purchase Order, the fees for the identical Services
under the same PO will be increased by 2% per year or applicable inflation rate, whichever one is higher,
calculated upon each anniversary of subscription period. The Subscriber may terminate the Agreement with
thirty (30) days notice to the end of the respective Subscription Term. Otherwise, the new price will apply.
7.6. Taxes. The fees set forth in a PO are net of tax, as such do not include any local, state, federal or foreign
taxes, levies or duties of any nature, including value-added, sales, use or withholding taxes (“Taxes”). Subscriber
is solely responsible for paying all Taxes, excluding only taxes based on the net income of Nemlia. If Nemlia has
the legal obligation to pay or collect Taxes under this Section, the respective fees shall be increased by an amount
applicable for the Taxes and be paid by Subscriber unless Subscriber provides Nemlia with a valid tax exemption
certificate authorized by the appropriate taxing authority.
8. OWNERSHIP AND LICENSE RIGHTS
8.1. Subscriber Ownership. Subscriber owns and retains all right, title, and interest, including, without
limitation, all Intellectual Property Rights, in and to the Subscriber Data. Subject to the limited licenses granted
herein, Nemlia acquires no right, title or interest from Subscriber or Subscriber’s licensors under this
Agreement in or to any of Subscriber Data. Subscriber grants Nemlia, its Affiliates and its subcontractors a
worldwide, non-exclusive right and license to store, copy, transmit, host, reproduce, maintain, process and use
Subscriber Data as reasonably necessary to provide and improve the Software Services, the Software and the
Mobile App in accordance with the Agreement.
8.2. Nemlia Ownership. Subject to the limited rights expressly granted under the Agreement, Nemlia reserves
all right, title and interest in and to the Software Services, the Mobile App, the Software and any content or
goods provided as part of the Agreement, including all related Intellectual Property Rights. The Mobile App,
including software embedded in the Mobile App, are licensed, not sold. Nemlia retains ownership of the
Mobile App. Further, Nemlia shall retain all right and title in and to all modifications and/or enhancements to
the Mobile App, the Software and the Services, regardless of the source of inspiration for any such
enhancement or modification and regardless of whether Subscriber has provided input regarding such
modifications and/or enhancements. No rights are granted to Subscriber hereunder other than as expressly set
forth herein or in the Agreement. Notwithstanding any other term of the Agreement, Nemlia may access and
use, and shall retain all right, title and interest in the Software Services, which may include aggregated and
anonymized data based upon Subscriber Data, provided that such data does not reveal the identity or traits of
any individual person, of a User or of Subscriber and does not contain any Subscriber Data or Subscriber
Confidential Information (as defined below).
8.3. Suggestions and Feedback, Usage Data. Nemlia shall have a non-exclusive, royalty-free, worldwide,
irrevocable, transferable, perpetual license to use any suggestions, enhancement requests, recommendations,
results of anonymous usage statistics or other feedback provided by the Subscriber, including its Users, relating
to the operation of the Software, the Software Services or the Mobile App. Nemlia may compile statistical and
other information related to the performance, operation and use of the Software Services and the Mobile App
(including, e.g. User’s operating system and browser, date and time of last login, number of downloads) solely
for (i) the provision of usage statistics to the Subscriber, (ii) the maintenance of the security and integrity of the
Software Services and (iii) research and development purposes related to improvements to the Software, the
Mobile App and/or the Software Services.
8.4. Audit of Use. Nemlia may use, at its sole discretion, and implement technical measures regarding the
functionality of the Mobile App, the Software and the Software Services to assess whether Subscriber’s usage
pattern is in line with the contractual agreed usage volume, and to detect whether the contractually agreed
scope of use is being exceeded by Subscriber. Nemlia may require Subscriber, at any time, to provide a selfdeclaration regarding its actual scope of use and/or usage pattern.
9.1. Confidential Information. Each Party may from time to time during the term of this Agreement disclose
(the “Disclosing Party”) to the other Party (the “Receiving Party”) certain non-public or proprietary information,
communication or data related to a Party’s business, products, or services, which the Disclosing Party identifies
as confidential or which is of such a nature that the Receiving Party should reasonably understand that the
Disclosing Party desires to protect such information against unrestricted disclosure or use, including
information owned by third parties (“Confidential Information”). Confidential Information includes, but is not
limited to (i) any scientific or technical information, invention, design, process, procedure, formula,
improvement, technology or method, (ii) any concepts, samples, reports, data, know-how, works-in-progress,
designs, drafts, drawings, photographs, development tools, specifications, software programs, source code,
object code, flow charts, (iii) any marketing strategies, plans, financial information, or projections, operations,
sales estimates, business plans and performance results relating to the Disclosing Party’s past, present or
future business activities, or those of its Affiliates, (iv) any trade secrets; product roadmaps or service offerings,
and customer or supplier lists, (v) any personnel and human resources data, files and any kind of personal data;
and (vi) any other information that by its nature can be reasonably recognized as Confidential Information of
the Disclosing Party.
9.2. Non-Confidential Information. Notwithstanding anything in the foregoing to the contrary, Confidential
Information shall not include information which: (i) was lawfully possessed by the Receiving Party, as evidenced
by the Receiving Party’s records, prior to receiving the Confidential Information from the Disclosing Party; (ii)
becomes rightfully known by the Receiving Party from a third-party source not under an obligation towards the
Disclosing Party to maintain confidentiality; (iii) is generally known by the public through no fault of or failure
to act by the Receiving Party; (iv) is required to be disclosed by mandatory law, in a judicial or administrative
proceeding, provided however that, to the extent legally permissible, the Receiving Party promptly notifies the
Disclosing Party in writing of such demand and, upon consultation with the Disclosing Party, takes all necessary
and legally permitted actions in order to minimize the scope of the disclosure and to ensure that the
Confidential Information will be treated as confidential as possible; or (v) is or has been independently
developed by employees, consultants or agents of the Receiving Party without violation of the terms of this
Agreement, as evidenced by the Receiving Party’s records, and without reference or access to any Confidential
9.3. Obligation of Confidentiality. During the Term, the Receiving Party will not, without the prior written
consent of the Disclosing Party, disclose Disclosing Party’s Confidential Information to any third party. The
Receiving Party will treat all Confidential Information of the Disclosing Party with the same degree of care that
the Receiving Party treats its own confidential or proprietary information, but in no event with no less than
reasonable care. During the Term, the Receiving Party will not, without the prior written consent of the
Disclosing Party, disclose Disclosing Party’s Confidential Information to any third party. Notwithstanding the
foregoing, the Receiving Party may, without the Disclosing Party’s prior written consent, disclose the
Confidential Information to its employees, agents, Affiliates, subcontractors, advisors or representatives on a
need-to-know basis provided they are bound by obligations of non-disclosure.
The obligations in this Section shall survive expiration or termination of this Agreement for a period of five (5)
9.4. Return of Confidential Information. Upon the Disclosing Party’s request or at termination or expiration of
the Agreement, all Confidential Information, including copies of such information, must be promptly returned
to the Disclosing Party, or destroyed. Notwithstanding the foregoing obligations, Receiving Party shall be
permitted to retain back-up copies of Confidential Information as required by its document retention policy or
10.1. Mutual Warranties. Each Party warrants to the other Party that: a) it has the authorization to enter into
the Agreement, and b) it has sufficient rights to grant the licenses under the Agreement, and c) it shall comply
with all applicable federal, state, local, or other laws and regulations applicable to the performance of its
obligations under the Agreement, and d) it has and shall obtain all applicable permits and licenses required in
connection with its obligations under this Agreement.
10.2. Subscriber Warranties. Subscriber warrants to Nemlia that: a) Subscriber and its Users will use the
Software Services and the Mobile App in accordance with the Agreement; b) Subscriber Data will not infringe
or misappropriate any Intellectual Property Rights or Confidential Information belonging to Nemlia or any third
party; c) Subscriber has the consent of all Consumers or Entrepreneurs whose data will be subject to the
Software Services or otherwise processed by Nemlia on behalf of Subscriber. Furthermore, Subscriber warrants
and represents to Nemlia that Subscriber shall not: i) create derivative works based on Nemlia‘s Software
Services except as authorized within Agreement; ii) copy, frame or mirror any part or content of Nemlia‘s
Software Services and/or ancillary services, other than copying or framing on the Subscriber‘s own intranets or
otherwise for the Subscriber’s own internal business purposes; iii) breach any of its obligations under the
Subscriber shall be responsible for the acts and omissions of its Users, as well as any other person that accesses
and uses the Mobile App and Software Service by using the access credentials of Subscriber, as if those acts and
omissions are those of Subscriber itself.
10.3. Nemlia Warranties. Nemlia warrants that the Mobile App and the Software Services comply with the
description in the Agreement or its documentation. In addition, Nemlia warrants to Subscribers that are
Consumers that the Mobile App and the Software Services are suitable for ordinary use and exhibit a quality
and functionality that is common for apps and services of the same kind and that the Consumer objectively can
expect from such product.
Defects in the Software or Software Service as notified by the Subscriber shall be remedied by the Nemlia
within the response time specified in the SLA. The same applies to other disruptions in the ability to use the
Software Services. Any claims based on defects in the Software, the Mobile App or Software Services shall be
governed by rental law. The Subscriber’s right to terminate the Agreement for failure to provide access to the
Software Services in accordance with Article 543 para. 2 Sentence 1 No. 1 of the German Civil Code (BGB) is
excluded, except to the extent that the contractually agreed access provision is deemed as finally failed.
Any claims against Nemlia for damages based on breach of warranty or defective performance shall be subject
to limitation of liability set forth under Section 11 of these GTC.
11. LIMITATION OF LIABILITY
11.1. Nemlia shall only be liable for: a) damages caused by intentional misconduct or gross negligence; and b)
death, personal injury or damage to health; and c) damages arising from the lack of a guaranteed quality,
whereby such liability is limited to the amount of foreseeable loss that would have been prevented by the
presence of the guaranteed quality; and d) liabilities in accordance with the German Product Liability Act.
11.2. In all other respects Nemlia shall not be liable, except for breach of a major contractual obligation and
only up to the amount paid under the respective PO for the respective claim for all claims arising out of the
Agreement. A breach of a major obligation in this regard is a breach of an elemental duty which forms the
essence of the Agreement, or where the breach of the relevant duty jeopardizes the purpose of the contract
and the Subscriber could legitimately rely upon its fulfillment. In addition, Nemlia shall not be liable for
damages which are (i) a result of a breach of the obligations of the Subscriber under the Agreement or the
Subscriber not following Nemlia’s Instructions; or (ii) caused by any of Subscriber’s equipment.
11.3. Contributory fault and contributory negligence may be claimed.
11.4. Nemlia shall not in any manner be liable with regards to any of the Subscriber Data. Liability for loss of
data shall be limited to the typical recovery costs that would have been incurred if back-up copies had been
made regularly and in accordance with the risks involved.
11.5. The limitation of liability as set forth under this Section 11 shall also apply the Nemlia’s representatives,
senior executives, employees and contractors.
12.1. Subscriber shall defend, indemnify and hold Nemlia and its Affiliates harmless against any loss, penalties,
damage or costs (including reasonable attorneys’ fees) incurred in connection with any actions, lawsuits, or
proceedings made or brought against Nemlia (and Nemlia’s officers, directors, employees, agents, service
providers, licensors, and Affiliates) by a third party having a valid claim that the Subscriber Data infringes (i) a
third party’s Intellectual Property Right; or (ii) data privacy rights; or (iii) is based on any acts or omissions by
Subscriber or its Users (collectively “Subscriber Claims”).
12.2. In the event of Subscriber Claims, Nemlia will take all reasonable steps to (a) promptly give Subscriber
written notice of each Subscriber Claim; (b) give Subscriber sole control of the defense and settlement of each
Subscriber Claim (provided that Subscriber may not settle or defend any Subscriber Claim unless it
unconditionally releases Nemlia of all liability); and (c) provide to Subscriber, at Subscriber’s cost, all reasonable
assistance in respect to each Subscriber Claim.
13. TERM AND TERMINATION
13.1. Term. The Agreement shall take effect as set forth in the PO. Subscriptions of the Software Services
purchased by the Subscriber commence on the start date specified in the applicable Purchase Order and
continue for the Subscription Term specified therein. Any termination right of Subscriber has to be agreed to in
writing or expressly set forth in a PO.
13.2. Termination for Cause. Termination for cause remains unaffected. A Party may terminate this Agreement
or any Purchase Order for cause with immediate effect especially in the following events: a) if the other Party is
in material breach of this Agreement or the specific Purchase Order and the breaching Party fails to cure such
material breach within a cure period of thirty (30) days from receipt of notice of breach; b) the receipt of
written notice of insolvency or bankruptcy of the other Party; c) the commencement by or against that Party of
any case or proceeding under any bankruptcy, reorganization, or insolvency law, or any other law for the relief
of debtors, provided the affected Party is unable to fulfill its obligations under the Agreement because of such
13.3. Effect of Termination. Upon termination or expiry of this Agreement or the applicable Purchase Order,
Nemlia shall immediately cease providing the related Services to the Subscriber and any subscriptions or
licenses granted hereunder shall terminate. Upon request by the Subscriber or a User made within 30 days
from the effective date of termination of the Software Services, Nemlia will make available to the Subscriber
for download a file of the Subscriber Data in an industry-standard documented file format and/or original
format and inform the Subscriber accordingly in writing with explicit reference to the availability of the
Subscriber Data. After a 60-day period, Nemlia shall have no obligation to maintain or provide the Subscriber
Data and shall thereafter, unless legally prohibited, delete all the Subscriber Data in Nemlia systems or
otherwise in Nemlia possession or under Nemlia control. In the event the 60-day period is not sufficient to
download all Subscriber Data, the data return period may be extended by a further maximum of two more 60-
day periods, provided that the Subscriber notifies Nemlia accordingly in due time before the expiry of the data
return period and agrees to compensate Nemlia for all related costs and expenses in connection with the
extension of the 60-day period.
13.3 Right of Withdrawal for Consumers. As a Consumer the Subscriber is entitled to a statutory right of
withdrawal from the Agreement within 14 days without giving any reason. The withdrawal period will expire
after 14 days from the day on which the Consumer acquires physical possession of the goods or access to the
Software Services. To exercise the right of withdrawal, the Consumer must inform Nemlia of his/her decision to
withdraw from the Agreement by an unequivocal statement (e.g. a letter sent by post, fax or e-mail) to Nemlia
(contact: Impressum – Nemlia). The Consumer may use the attached model withdrawal form, but this is not
obligatory. To meet the withdrawal deadline, it is sufficient to send the communication concerning the exercise
of the right of withdrawal before the withdrawal period has expired.
With withdrawal form the Agreement, Nemlia shall reimburse to Consumer all payments received, including the
costs of delivery (with the exception of the supplementary costs resulting from the Consumer’s choice of a type
of delivery other than the least expensive type of standard delivery offered by Nemlia), without undue delay and
in any event not later than 14 days from the day of receipt of the withdrawal notice. Nemlia will carry out such
reimbursement using the same means of payment as the Consumer used for the initial transaction unless the
Consumer has expressly agreed otherwise. Consumer shall send back any goods received.
Model Withdrawal Form (complete and return this form only if you wish to withdraw from the contract):
– To Nemila GmbH, Bergheimer Straße 147, 69115 Heidelberg, Germany, email@example.com
– I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods
(*)/for the provision of the following service (*),
– Ordered on (*)/received on (*),
– Name of consumer(s),
– Address of consumer(s),
– Signature of consumer(s) (only if this form is notified on paper),
(*) Delete as appropriate
14. GENERAL PROVISIONS
14.1 Notices. All notices, permissions and approvals hereunder shall be in writing and send to the addresses set
forth in the Purchase Order. Text form (Article 126 b German Civil Code (BGB)) is in general sufficient, provided
however that this shall not apply for notices of termination or concerning contractual claims. All notices will be
effective upon receipt.
14.2 Export Compliance. Both Parties shall comply with all applicable UK, EU and/or US sanctions and export
regulations including any restrictions or prohibitions on trade or financial transactions with certain countries or
entities (“Export Laws”). Subscriber, its Affiliates, and Users shall not directly or indirectly export, re-export,
release, or transfer the Software Service, the Mobile App, Hardware or any other material provided under the
Agreement in violation of Export Laws. Subscriber is solely responsible for compliance with Export Laws related
to Subscriber Data, including obtaining any required export authorizations for Subscriber Data.
14.2. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a
partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
14.3. Subcontractors. Nemlia may subcontract any part of its obligations under this Agreement. Nemlia will
obligate its subcontractors (if any) to adhere to confidentiality obligations that are at least as protective as
those provided for in the Agreement. Notwithstanding the permitted subcontracting of Services hereunder
Nemlia will remain liable for all of its obligations under this Agreement, and for the acts and omissions of all
Nemlia employees in connection with the performance of Services.
14.4. Information Security. Nemlia shall be responsible for implementing and maintaining information security
controls in line with standard industry practices.
14.5. Data Protection. The Parties agree to comply with applicable data protection laws, including but not
limited to the Regulation (EU) 2016/679 (General Data Protection Regulation, hereinafter “GDPR”). Nemlia will
implement and maintain appropriate technical and organizational measures to protect the personal data
processed by Nemlia as part of the Software Service as described in the Data Processing Agreement in
compliance with applicable data protection law.
14.6. Governing Law and Jurisdiction. In all respects the Agreement will be governed by, and construed in
accordance with, the substantive laws Germany without reference to its conflict of law provisions. In the event
that the Subscriber is a Consumer and has his/her residence in a member state of the European Union, German
law applies as well as the mandatory provisions of the residential EU state. The Parties agree that the United
Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the
rights and obligations of the Parties under this Agreement. In case the Subscriber is an Entrepreneur, the
exclusive place of jurisdiction for all disputes arising from this contract shall be Heidelberg.
14.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary
to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of
the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement
shall remain in effect.
14.8. Surviving Provisions. Section 7 (Fees and Payment), Section 8 (Ownership), Section 9 (Confidentiality),
Section 10 (Warranties), Section 11 (Limitation of Liability), Section 12 (Indemnification), Section 13.3 (Effect of
Termination), and Section 18 (General Provisions) shall survive any termination or expiration of the Agreement.
14.9. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of
law or otherwise, without the prior written consent of the other Party, except that either Party may assign all
of its rights and delegate all of its obligations under this Agreement to an Affiliate without consent. Any
consent required by this paragraph will not be unreasonably withheld, conditioned, or delayed. Subject to the
foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and
14.10. Entire Agreement. The Agreement, including all exhibits and addenda hereto, the GTC and all Purchase
Orders, constitute the entire agreement between the Parties and supersedes all prior and contemporaneous
agreements, proposals or representations, written or oral, concerning its subject matter. To the extent of any
conflict or inconsistency between the provisions in the Purchase Order, these GCT or any exhibit or addendum
thereto, the terms of the applicable Purchase Order shall prevail. Notwithstanding any language to the contrary
therein, no terms or conditions stated in the Subscriber’s purchase orders or other order documentation shall
be incorporated into or form any part of the Agreement, and all such terms or conditions shall be null and void.
14.11. Force Majeure. Neither Party shall be liable to the other for any delay or failure to perform hereunder
(excluding payment obligations) due to circumstances beyond such Party’s reasonable control, including but
not limited to acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or
other labor problems (excluding those involving such Party’s employees), service disruptions involving
hardware, software or power systems not within such Party’s reasonable control, any governmental lock down
measures with regards to Covid 19 or other pandemics and denial of service attacks.
14.12. Counterparts. This Agreement any Purchase Order issued hereunder may be executed in any number of
counterparts, each of which when executed and delivered shall constitute and original of this Agreement, but
all the counterparts shall together constitute the same agreement. Transmission of an executed counterpart of
this Agreement by email (in PDF, JPEG or other agreed format) shall take effect as delivery of an executed
counterpart of this Agreement and the use of electronic tools for signatures shall be deemed sufficient. If
either method of delivery is adopted, without prejudice to the validity of the Agreement made, if requested
each Party shall provide the others with the original of such counterpart as soon as reasonably possible after.
No counterpart shall be effective until each Party has executed and delivered at least one counterpart.
These GTC were last updated December 2021